THE DECISIONS OF THE SUPREME COURT OF WISCONSIN NEW, REVISED AND COMPLETE, FROM THE EARLIEST PERIOD TO THE BEGINNING OF THE AUGUST TERM, 1908, INCLUDING ALL THE OFFICIAL REPORTS DOWN TO VOL. 136 IN THREE VOLUMES BY JOHN B. SIMMONS OF THE RACINE BAR VOLUME IL CHICAGO CALLAGHAN AND COMPANY 1909 DIGEST OF THE DECISIONS SUPREME COURT OF WISCONSIN. EVIDENCE. ... .... ... I. JUDICIAL NOTICE II. PRESUMPTIONS III. BURDEN OF PROOF IV. BEST AND SECONDARY V. DEMONSTRATIVE VI. ADMISSIONS AND DECLARATIONS 1325 must be sustained by proof. OF THE ... TENCY a. In general b. As to particular facts and XIII. OBDER. WEIGHT AND SUFFICIENCY a. Order of admission b. Weight of evidence VII: HEARSAY c. By and to whom made 1328 Beer intoxicating. X. PAROL EVIDENCE XI. EXPERT AND OPINION EVIDENCE.. 1400 a. Who competent to give .. 1400 b. Evidence, admissibility of 1403 XII. RELEVANCY, MATERIALITY AND COMPE ...... thereof is shown. 1275 1278 Attorneys. 3. Courts do not take judicial notice as 1318 to who are practising attorneys; therefore, 1324 an objection to a surety on that ground Cothren v. United States v. De 1413 1413 1413 1478 Census. 5. Courts will take judicial notice of a census, whether taken under the authority of the state or of the United States, and of the number of inhabitants in the several minor political divisions of the state as appearing thereby. State ex rel. Atty. Gen. v. Cunningham, 81 W. 440, 51 N. W. 725, 15 L. R. A. 561n; State ex rel. Lamb v. Cunningham, 83 W. 90, 53 N. W. 35, 17 L. R. A. 145. Cities. 6. Courts take judicial notice of the powers and capacities of incorporated cities; the acts of the legislature incorporating I. JUDICIAL NOTICE. Acts of congress and treaties. 1. The courts of this state, as well as them being public acts. Janesville v. Milthose of the United States, will take judi-waukee & Miss. R. Co., 7 W. 484. They will cial cognizance of all public acts of con- also take judicial notice of laws amendagress, and treaties with foreign powers; tory of city charters, and of the powers and and such acts and treaties need not be duties of officers under them. Terry v. Milproved. Montgomery v. Deeley, 3 W. 709.waukee, 15 W. 490; Alexander v. Milwau 2. In an action by the United States for kee, 16 W. 247. trespass upon public lands, the court is bound to take notice of the laws and treaties of the United States; and if the land upon which the alleged trespass was committed was included in any treaty ceding it to the United States, the title is presumed to remain there until a transfer 7. Our courts take judicial notice of the incorporation of a city under the laws of this state. Smith v. Janesville, 52 W. 680. 9 N. W. 789. A city charter is a public act, of which courts take judicial notice, without its being pleaded. Durch v. Chippewa Co., 60 W. 227, 19 N. W. 79. I. Judicial Notice. Foreign judges. 8. Our courts will take judicial notice of the fact that lands sought to be acquired un- 18. The courts of this state will not take der the preemption laws of the United judicial notice that there are county judges States were within the limits of a city duly in the state of New York, nor that they incorporated under the laws of this state, have authority to administer oaths. Felwhen the claimant offered to file his pre-lows v. Menasha, 11 W. 558. emption papers, and by reason of § 2258 R. S. of U. S. were not subject to preemption. | Foreign laws. Houlton v. Chicago, St P. M. & O. R. Co., 86 W. 59, 56 N. W. 336. 19. Our courts will not take judicial notice of the laws of other states. Rape v. Heaton, 9 W. 328; Walsh v. Dart, 12 W. 635. 9. Courts will take judicial notice of the adoption, by a specially incorporated city, of portions of the general charter law. Davey v. Janesville, 111 W. 628, 87 N. W. 813. Common knowledge. 10. Courts will take judicial notice that the existence of a mortgage upon insured premises is a fact material to the risk. VanKirk v. Citizens' Ins. Co., 79 W. 627, 48 N. W. 798. 11. A court can take judicial notice of the nature and uses of an air-gun,—as it can of beer, or gas, of an express or freight Harris v. Cameron, 81 W. 239, 51 N. car. 12. Courts may properly take judicial notice of the fact that no means or device that human ingenuity has as yet been able to produce, will wholly prevent the emission or throwing of sparks or cinders from railway locomotives. Menominee Riv. G. & D. Co. v. Milwaukee & North. R. Co., 91 W. 447, 65 N. W. 176. 18. The courts will take judicial notice of matters of common scientific knowledge, such as the sources of artisian wells, and those of Wisconsin in particular. Huber v. Merkel, 117 W. 355, 94 N. W. 354, 62 L. R. A. 589. Contents of Bible. 14. The courts will take judicial notice of the contents of the Bible; of the fact that the religious world is divided into numerous sects; and of the general doctrines maintained by each sect; as being subjects of common knowledge. State ex rel. Weiss v. District Board, etc., 76 W. 177, 44 N. W. 967, 7 L. R. A. 330. Courts, jurisdiction and records. 15. A court will take judicial notice of the jurisdiction conferred upon it by law, and in an action brought therein its jurisdiction need not be alleged, if the amount claimed in the complaint does not exceed that jurisdiction. Meshke v. Van Doren, 16 W. 319. 16. The supreme court will take judicial notice of its own former record and proceedings, in a case brought before it a sec ond time. Brucker v. State, 19 W. 530. 17. The circuit court will take judicial notice of its own records, and, where the book itself is offered in evidence, it is immaterial whether, in the description of the court in such records, the word "circuit" is omitted or not. State ex rel. Kickbush v. Hoeflinger, 35 W. 393. 20 On demurrer by indorsers to a complaint seeking to charge them, jointly with the makers, upon instruments for the payment of money, made and payable in another state, the court cannot take judicial notice of the laws of that state relating to the liability of indorsers, which have not been pleaded. Cont. Nat. Bk. v. McGeoch, and Cont. Nat. Bk. v. Wells, 73 W. 332, 41 N. W. 409. 21. Our courts are not required by the constitution of the United States or the act of Congress on the subject of giving credit to the public acts and judicial proceedings of another state, to take judicial notice of those laws, but may presume them to be like our own in the absence of proof to the contrary. Osborn v. Blackburn, 78 W. 209, 47 N. W. 175, 10 L. R. A. 367. 22. A court of this state cannot take judicial notice of the statutes of another state, or of the proceedings in its courts, but they must be pleaded and proved as facts whenever any right is claimed under them. Swing v. White River L. Co., 91 W. 517, 65 N. W. 174. 23. The law of another state, whether statutory or embodied in the decisions of its courts, when material to prove some fact essential to a cause of action or defense, can be considered by the courts of this state, only when regularly put in evidence. Howe v. Ballard, 113 W. 375, 89 N. W. 136. Former adjudication. 24. A former adjudication, in which the title of the plaintiff to another piece of land, depending upon the same facts as appear in the pending suit, was sustained in an action in the same court and between the same parties, must be proved as a fact. The court will not take judicial notice thereof. McCormick v. Herndon, 67 W. 648, 31 N. W. 303. Freight car. 25. Courts and juries may take judicial notice of such a well-known fact as that an express car is a freight car. Nicholls v. State, 68 W. 416, 32 N. W. 543. Gas, manufacturer of. 26. It is within the every-day experience of all, and therefore within the judicial knowledge of the court, that the manufacture and supply of inflammable gas for lighting cities, stores, etc., is not a domestic I. Judicial Notice. or family manufacture, but is carried on by | is no Madison county in this state. Huey v. public or associated capital. Shepard v. Van Wie, 23 W. 613. Milwaukee Gas-light Co., 6 W. 539. Land subdivisions. 27. Our courts will take judicial notice of the relative situations of sections and subdivisions thereof, in surveys of government lands. Prieger v. Exchange M. Ins. Co., 6 W. 89; Atwater v Schenck, 9 W. 160. Laws of the state. 28. Courts are bound to take notice of public acts, and that involves the necessity of their determining for themselves when such acts took effect. Berliner v. Waterloo, 14 W. 378 29 A public act authorizing a town to purchase and maintain a bridge over a navigable stream, is a legislative recognition of the legality of such bridge, and the right of the town to maintain it; and courts will take judicial notice thereo Castello v. Landwehr, 28 W 522 30. The act of 1870 appropriating the drainage fund of certain towns in Marathon county to the construction of a bridge (ch. 64, P. and L. Laws, 1870), and the act repealing it (ch. 70, P. and L. Laws, 1871), were both public and general laws, of which the courts would take judicial notice. State ex rel. Voight v. Hoeflinger, 31 W. 257. 31. Courts will take judicial notice of the statutes of this state, and of the journals of the two houses of the legislature so far as necessary to determine whether an act published as a law was actually passed by the respective houses in accordance with the constitution; but it will not go further to inquire whether those houses have or have not complied with their own rules of procedure between its introduction and its final passage McDonald v. State, 80 W. 185. 407, 50 N. W 32. In an action involving the determination of the validity of an act of the legislature, the court is to be confined to matters of which it may take judicial notice. State ex rel. Atty. Gen. v. Cunningham, 81 W. 440, 51 N. W. 725, 15 L. R. A. 561n. Localities. 33. Courts take judicial notice of the local divisions of their country, as into counties, cities, towns and the like, and of the acts incorporating cities. Our courts will take judicial notice that there is a city of Janesville in this state; but they cannot judicially know or presume that there is another city of the same name in any other state or country. Woodward v. Chicago & N. W. R. Co., 21 W. 309. 35. Courts cannot take judicial notice of the geographical location of towns with reference to a proposed line of railway, and the probable action of the company or its engineers as to locating the road between two given points, so as to run the same to or near certain other places from which it receives subscriptions to its stock. Phillips v. Albany, 28 W. 340. 36. Where the right of a defendant in ejectment to recover for an improvement, consisting of a slaughter house, is denied, on the ground that the erection thereof was in violation of the statute prohibiting the erection of any slaughter house upon the bank of any river which shall flow through any city, etc. (ch. 273, L. 1862), even if the court could take judicial notice that a certain river flows through a certain city of this state, and should assume that such river was the one on which the lots in dispute in the action abut, still it could not take judicial notice of the position of said lots on the city plat, or assume that the river flows through any part of said city after passing said lots. Oberich v. Gilman, 31 W. 495. 37. The courts of this state will take judicial notice that Prairie du Chien and McGregor are separated only by the Mississippi river; that during the winter, when the river is frozen, each town may easily and speedily be reached from the other; and that, the market price of hogs in those places being to a great extent controlled by that of Chicago and Milwaukee, there could be no considerable difference in such price at the two places. Siegbert v. Stiles, 39 W. 533. 38. Where the proof of service of summons and complaint shows it to have been made in "Richland county," the court will take judicial notice that such county is in this state. Zwickey v. Haney, 63 W. 464, 23 N. W. 577. 39. In an action which involves the validity of an apportionment act, the court will take judicial notice of the location, general boundaries and juxtaposition of the several counties, towns and wards mentioned in the act, and of matters of common knowledge. State ex rel. Atty. Gen. v. Cunningham, 81 W 440, 51 N. W. 725, 15 L. R. A. 561n. 40. Courts will take judicial notice of the territory included within a judicial district and of maps published by state aufhority Davis v. State, 134 W. 632, 115 N. W. 151. Offices and officers. 34. The court will take judicial notice of the geographical divisions of the state, and whether a witness, whose place of residence 41. Our courts will take judicial notice is given in his deposition, resided more of who is governor, circuit judge, secretary than thirty miles from the place of trial, of state, treasurer, attorney general, clerk though that fact is not expressly stated. of circuit court, district attorney, or sheriff, Hinckley v. Beckwith, 23 W. 328. Our courts de facto, or when their title is undisputed, will take judicial notice that the village of but not who is such officer de jure, when Madison is in Dane county, and that there' that question is raised. State ex rel. Bash |