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No defence can be presented to a scire facias that might have been taken advantage of in the original action ;' nor can mere errors or irregularities in the original proceedings be presented in defence of the scire facias.2 Any defence which has arisen

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9 Tex. 498; Camp 2. Gainer, 8 Tex. wold v. Stewart, 4 Cow. (N. Y.) 459. 372; Whitworth v. Thompson, 8 Lea The plea of coverture to a scire faci(Tenn,) 480; Lavell v. McCurdy, 77 as to revive and continue the lien of a Va. 763. Compare Huston ?'. Ditto, judgment, entered on the warrant of at20 Md. 305; Conyngham 2'. Walter, 95 torney, in the bond of a married woPa. St. 85.

man, is not a denial of the existence of But where, in Massachusetts, a trial the judgment on which the scire facias justice, in an action against the admin- issued, nor an averment of the satisfacistrator of an estate, erroneously ren- tion or the discharge thereof; it is dered a judgment for damages and costs therefore inappropriate and insufficient against the estate, and the execution to prevent the entry of judgment, and issued thereon was declared illegal, an it is not error for the court to strike it order of the superior court, upon a pe- off. Coulyn i'. Parker, 113 Pa. St. tition for a writ of scire facias to ob- 29. tain a new execution on the judgment, Upon a scire facias to revive a judgthat execution should issue against the ment which was served on the defendestate for the damages, was affirmed by ant and on the voluntary assignee for the supreme court upon the plaintiff the benefit of creditors of a firm of entering a remittitur for the amount of which the defendant was a member as the costs. Look 2'. Luce, 140 Mass. terretenant, the latter, being a mere 461.

volunteer, cannot defeat a judgment of Alimony.—The writ will not lie to revival by averring generally in an affienforce the payment of temporary ali- davit of defence that the real estate asmony where the amount due cannot be signed to him was partnership real esascertained from the record. Chestnut tate, and as such not subject to the v. Chestnut, 77 Ill. 346. But it will lie lien of a judgment against one partner; for alimony where the amount is cer- and further, that the assigned estate tain. Morton 2. Morton, 4 Cush. being insufficient to pay partnership (Mass.) 518.

creditors, no surplus would remain for 1. Calhoun v. Adams, 43 Ark. 238; individual creditors. The plaintiff in Betancourt 2. Eberlin, 71 Ala. 461; such case is entitled to a judgment of Duncan V. Hargrove, 22 Ala. 150; revival, without prejudice to the subseBradford v. Bradiord, 5 Conn. 127; quent determination of the respective Camp v. Baker, 40 Ga. 148; Harrison rights of partnership and individual v. Hart, 21 Ill. App. 348; Vredenburgh creditors. Kepler v. Erie etc. Co., 101 7'. Snyder, 6 Iowa 39; McCutchen v. Pa. St. 602. Askew, 34 La. An. 340; Folger v. It is no defence to a scire facias to Slaughter, 33 La. An. 341; Bowen z. revive a judgment that the amount of Bonner, 45 Miss. 10; Pollard z'. Eckford, the judgment has already been allowed, , 50 Miss. 631; Smith v. Eaton, 36 Me. without a revivor, in a suit instituted by 298; s. C., 58 Am. Dec. 746; Stephens the personal representative for the purv. Howe, 127 Mass. 164; Riley 2. Mc- pose of administering the estate, as an Cord, 24 Mo. 265; Kemp 7'. Cook, 6 insolvent estate, and ordered to be paid Md. 305; Moore 2. Garrettson, 6 Md. its pro rata. McIntosh v. Paul, 6 Lea 444; NcFarland v. Irwin, 8 Johns. (N. (Tenn.) 45. See also Carter v. ColeY.) 77; Fereber u. Doxey, 6 Ired. (N. man, 12 Ired. (N. Car.) 274. Car.) 448; Dowling . McGregor, 91 In Louisiana, lack of jurisdiction of Pa. St. 410; Barber 2). Chandler, 17 Pa. the person is no defence to an action to St. 48; s. C., 55 Am. Dec. 533; Koon v. revive a judgment rendered by a court Ivey, 8 Rich. (S. Car.) L. 37; Bell 2. having jurisdiction ratione materiæ. Williams, 4 Sneed (Tenn.) 196; Love Theriot 2. Bayard, 37 La. An. 689. 7. Allison, 2 Tenn. Ch. 111; Dickson A judgment against a township may v. Wilkinson, 3 How. (U. S.) 57; May be revived by scire facias although it v. State Bank, 2 Rob. (Va.) 56; s. c., does not own real estate. Conyngham 40 Am. Dec. 726. See also Dunn v. z'. Walter, 95 Pa. St. 85. Brogden, 68 Ga. 63. Compare Gris- 2. Betancourt 2. Eberlin, 71 Ala.

since the judgment was rendered may be set up in scire facias proceedings based thereon.1

The remedy by scire facias has been abolished in some States and the remedy by action on the judgment substituted.2

St. 215.

461; Anthony v. Humphries, 9 Ark. of what has occurred since the judg76; Richardson v. Walcott, 10 Allen ment was entered, the plaintiff is not (Mass.) 439; Langston 2. Abney, 43 entitled, according to the terms of a Miss. 164; Bank v. Dunn, 4 Blackf. verbal agreement between the parties, (Ind.) 513; Ford 2. Beckwith, 48 Ill. to have his execution. Bown 2. Mor210. See also Brown v. Neale, 3 Al- ange, 108 Pa. St. 69. len (Mass.) 74

A judgment absolutely void cannot 1. Brown 3. Morange, 108 Pa. St. be revived. Levy z'. Calhoun, 34 La. 346; Thompson z'. Hurley, 19 Iowa An. 413; In re Administrators' Board, 331; Downey 2. Forrester, 35 Md. 37 La. An. 916; McFadden z'. Lock117. Compare Shaw ?'. Boyd, 12 Pa. hart, 7 Tex. 573; Phelps ?'. Hawkins,

6 Mo. 1971- See also Gray i'. Stuart, Nui tiel record is a good plea to a 33 Gratt. (V'a.) 351; Jones z'. Dilworth, writ of scire facias. Bergen 7". Will- 63 Pa. St. 447. iams, 4 McLean (U. S.) 125; Hager v. Where the period of the statute of Cochran, 66 Md. 263.

limitations has elapsed from the date of If the original judgment has been re- the judgment, and no fi. fa. was issued, versed, the writ will not lie. Mills '. or, if issued, no levy was made, and no Conner, i Blackf. (Ind.) 7.

steps taken as provided by law to revive A terretenant may defend by show- the same, proceeding by scire fucius is ing that the judgment was never a lien barred in some States. Siebels 2. on his land. Colwell z'. Easley, 83 Pa. Hodges, 65 Ga. 245. Compare Betan

court z'. Eberlin, 71 Ala. 461. The pendency of an appeal with su- In a scire facias against heirs and persedeas which does not prevent the devisees to continue the lien of a failure of the judgment lien is no de- judgment entered against an executor fence to a scire fucias to revive the within five years of the decedent's judgment. Merchants' Mut. Ins. Co. death, the defendants may contest the 7. Fill, 17 Mo. App. 590; Farrelly z'. debt, not the lien. Colwell z. Rockwell, Cross, 10 Ark. 407.

100 Pa. St. 133. Where the judgment debtor, on the Discharge in bankruptcy is a proper order to show cause, made affidavit defence to scire facias to revive a that the judgment was paid and satis- judgment, and if not set up the defendfied, it was held error to revive it with- ant will be concluded by a judgment of out hearing testimony. Garrison revival. Thomas z'. I'owns, 66 Ga. Aultman, 20 Neb. 311; Cowan ?".

I'. 78; Murphy 2. Crawford, 114 Pa. St. Shields, i Overt. (Tenn.) 64. See also 496. Hartman v. Alden, 31 N. J. L. 518; 2. Humiston ?'. Smith, 21 Cal. 129; Seymour v. i lubert, S3 Pa. St. 376. Ilughes i'. Shreve, 3 Metc. (Ky.) 547; Upon the trial of a scire facias to Alden z'. Clark, 11 How. Pr. (N. Y.)

( revive a judgment, it is competent to 209; Thurston '. King, I Abb. Pr. (N. show by parol testimony that by reason Y.) 126.

150;

St. 31.

JUDICIAL NOTICE—(See FOREIGN LAWS; NOTICE). 1. Definition, 151.

13. Municipal Ordinances, 168. 2. Generally, 151.

14. Geographical Facts, 169. 3. Public Functionaries, Seals and 15. Historical Facts, 174. Acts of State, 152.

16. Selection of Officers, 179. 4. Public Elections, 157.

17. Official Signatures and Seals, 191. 5. Public Statutes, 157.

18. Judicial Proceedings and Terms of 6. Public Treaties, 160.

Courts, 182. Public Institutions, 161.

19. The General Course of Nature, 8. Constitutional Law, 161.

195. 9. Law of Nations, 162.

20. Facts of Uniform Occurrence, 196. 10. Foreign Laws, Customs; Laws of 21. Facts Generally Occurring in the Sister States, 163,

Usual Course of Life, 199. 11. General and Local Customs, 165. 22. Cases in Which Judicial Notice 12. Private and Special Statutes, 167.

Was Refused, 200.

1. Definition. ---Judicial notice is the exercise, by courts, of knowledge of facts of uniform natural occurrence, immemorial usage, historical sanction, or general notoriety; and, when admissible, so recognizing and acting upon them without averment or proof.

2. Generally.—Courts will usually take notice of whatever ought to be generally known or generally ascertainable within the limits of their jurisdiction. The general principie upon which this class of facts is received, without averment or proof, is that the court knows; and if it is not sufficiently advised, the fact may be ascertained by special enquiry and reference to any authentic means of knowledge.

The judges do not assume any private or technical information of the matter, but they simply recognize the fact as being already sufficiently established. When such fact is of universal application it will be judicially noticed, generally; but where its operation is absolute within certain limitations, it will only be recognized within the jurisdiction to which the same extends. Thus impressed with absolute verity, such facts may be embraced in instructions to juries without infringing upon their province of determining issues of fact. While the rules governing the exercise of this peculiar power by the courts are founded in well settled principles of the law, the subjects requiring such determination are so various and diverse in character, it would seem, those rules cannot, in every instance, be made strictly to apply, and the decision must frequently depend upon the particular circumstances in such

The admissibility of those classes of facts, which are in their nature official, political,

1. Brown 7. Piper, 91 U. S. 37; I subject of the realm may fairly be preGreenleat's Ev. (14th ed), $ 6.

sumed to be acquainted with them; and General Principles Upon Which Facts partly, that the matters so noticed are Are Judicially Noticed.—The principle generally quite collateral to and unupon which certain matters are judi- connected with the point in issue, and cially noticed, without any proof being are of such a kind that there is no risk required in respect to them, appears in dispensing with the strict formal to be partly, that they are of such proof, whereas, in requiring it there general and public notoriety that every might be great inconvenience by reason

cases,

historical, geographical, commercial, judicial, legislative, scientific and artistic, can be accurately determined; but, in addition to these, notice will be taken of a wide range of matters of natural occurrence, and of those arising in the usual course of life, the recognition of which depends upon the completeness of their certainty and notoriety. With regard to such facts care must be taken that the requisite notoriety exists... This power of judicial notice is to be exercised with caution. Every reasonable doubt upon the subject should be resolved promptly in the negative.1

As will be seen, the most practical view of these questions will be acquired from the adjudicated cases upon this subject.

3. Public Functionaries, Seals and Acts of State.—All civilized nations recognize each other's existence as members of the great family of sovereignties, and general public and external relations. The national flag and seal are the universal symbols of nationality and sovereignty. Every sovereign power, therefore, recognizes, and its public tribunals take notice of, the existence and titles of all the other sovereign powers in the family of nations, their respective flags and seals of state.2 The seal is held to be evidence of the highest character, and public acts, decrees and judgments authenticated by it are received as true and genuine. The recognition of a new nation belongs to the executive function, and when a de facto power has not been thus recognized by the sovereignty under which the court is organized, its seal cannot be admitted to prove itself. The courts also recognize all executive acts of this department of their own government, when the same are so promulgated as to have the force of law; as proc

of the expense or difficulties in procur- matter of notoriety, and will be taken ing it. i Phillips' Ev. (5th Am. ed.) 514, notice of as part of the law of $ 619.

nations acknowleged by all. Lincoln 1. The courts should exercise this v. Battelle, 6 Wend. (N, Y.) 476. power with caution; care must be taken Seal of De Facto Government.-But that the requisite notoriety exists, and courts cannot take judicial notice of a every reasonable doubt upon the sub- foreign government not acknowledged ject should be promptly resolved in the by the government of the country in negative. Per SWAYNE, J., in Brown v. which the court sits; and the fact of Piper, 91 U. S. 37.

acknowledgment is matter of public 2. The National Flag and Seal.—The notoriety. United States v. Palmer, 3 public seal of a kingdom or sovereign Wheat (U. S.) 610. The seal of such state is, by common consent and usage acknowledged government cannot be of civilized communities, the highest permitted to prove itself, but it may be evidence and the most solemn sanction proved by such testimony as the nature of authenticity in relation to proceed- of the case admits. City of Berne, in ings, either diplomatic or judicial, that Switzerland v. Bank of England, 9 Ves. is known in the intercourse of nations; Jr. (Eng.) 347; Dolder v. Lord Huntingand as such is taken notice of judicially field, 11 Ves. Jr. (Eng.) 283. by all courts of justice in other States. Authentication of Foreign Judgments. Griswold v. Pitcairn, 2 Conn. 90: The Foreign judgments are authenticated,

; Santissima Trinidad, 7 Wheat. (Ú. S.) I, by an exemplification under the 283

great seal; 2, by a copy proved to be a National Seal Proves Itself.—The pub- true copy; 3, by the certificate of an lic seal of a State, affixed to the exem- officer authorized by law, which cerplification of a law or judicial proceed- tificate must itself be properly authening, it seems, proves itself; it is a ticated. These are usual, and appear

lamations of the president announcing a state of war, or the establishment of peace; 2 the granting of general amnesty, or pardon, for political offences ; 3 the fixing of rules for conducting business by the executive departments, and the like. While the same rules as to judicial notice are followed in both countries, in Engiand many facts are noticed which do not arise in the American courts.

5

to be the most proper, if not the only, United States, 45th congress, chapter mode of verifying foreign judgments. 150, will be considered such an act of the If they are all beyond the reach of the executive department of the United party, other testimony inferior in its States as the courts will take judicial nature might be received. Church 2'. notice of under the Revised Statutes of Hubbart, 2 Cranch (U. S.) 187.

Montana; and it is not necessary to set Proclamations of Governor. — The out such rules in a complaint seeking courts of Indiana take judicial notice to recover for an infringement thereof. of the proclamation of the governor, United States ?'. W’illiams, 6 Mont. declaring in force an act of the legis. 379. lature containing an emergency clause. The rules adopted by the treasury Dowdell r'. State, 58 Ind. 333.

department of the United States gov1. President's Proclamation and Laws ernment for the payment of arrears of of Congress.—The federal courts take pay due to deceased officers, seamen judicial notice of the general enact- and mariners in the United States navy, ments of congress, and of the duly pro- have the force of law, and courts will mulgated proclamations of the presi- take judicial knowledge of them. Low dent. The late civil war, being a mat- v. Hanson, 72 Me. 104. ter of public history, is likewise ju- 5. Facts Taken Notice of by the Courts dicially known to the courts; and from of England-Public Matters.--The Engthis general historical fact they will lish courts will take judicial notice of also take judicial notice of particular all public matters which affect the goracts which led to it, or happened during ernment; such as the time of the acits continuance, whenever it becomes cession demise of the sovereign. essential to the ends of justice to do so. Holman v'. Borough, 2 Ld. Raym. 791, Cuyler v. Ferrill, 1 Abb. (U. S.) 169. 794; s. C., Salk. 658. They will also

2. Close of the Civil War.-It was take notice of the correspondence of the held that the court would take judicial year of any particular reign with the notice of the ending of the rebellion, year of our Lord. Henry z'. Cole, 2 although no proclarnation to that effect Ld. Raym. 811; s. c., Mod. 104. Rex z'. had been made by the president. Pringle, 2 Mod. & R. 276. United States v. Fifteen Hundred Bales Prerogatives and Privileges.—They of Cotton, 10 Internal Rev. Record (U, will take notice of the prerogatives of

the crown and the privileges of the 3. Amnesty Proclamation —The proc- royal palaces. Elderson's Case, 2 Ld. lamation of pardon and amnesty made Raym. 978; S. C., Salk. (Eng.) 284; by the president on December 8th, Winter 2. Miles, i Camp. (Eng.) 475; 1863, is a public and official act, of s. c., East 578; Atty. Gen. v. Donaldwhich the courts will take judicial son, 10 M. & W.117. notice. The Greathouse Case, 2 Abb. Royal Seals.-In like manner they (U. S.) 382.

also take notice of the great and privy Foreign Officers

and Seals.—The seals, and also of the sign manual. courts of this country take judicial Rex 7'. Miller, 2 W. Bl. 797; S. C., 1 Lea. notice of all other nations and their C. C.74; Rex z'. Gully, i Lea. C. C., 98. seals of state, but not of their inferior See also Lord Melville's Case, 29 How. departments and their officers and seals. St. Tr. (Eng.) 706. Schoerkin v. Swift and Courtney and Royal Proclamations. — They also Beecher Co., 19 Blatch. (U. S.) 209. take notice of royal proclamations as

4. Executive Acts.—The rules and being acts of state. Wells v. Williams, regulations as to the cutting of timber 1 Ld. Raym. 283; s. C., I Salk. 46; Duupon the public lands of the United puys r". Shepherd, 12 Mod. (Eng.) 216; States prescribed by the secretary of Rex z'. Oulton, 4 M. & S. 532. the interior under the laws of the Orders of Council.—But they do not 12 C. of L.--10*5

153

S.) 52

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