Bean v. Briggs

Weight, C. J. It is conceded in the argument that the [468] certificate of deposit, was made and indorsed in Illinois; It is further admitted by appellants, that - the law of that state entered into, and became a part of the contract of indorsement, and that the liability of the defendant, must be determined by said laws. And thus we perceive' that we aré left to inquire whether, unblér the pleadings, the testimony offered was admissible, and whether the instructions based thereon, should have been given. And this inquiry we must answer in the negative. ¥e suppose it to be well settled, that the courts of this state will not take judicial notice of the laws or statutes of another state. If a contro-' versy arises in our courts upon a contract made in another jurisdiction, prima facie it is'to be governed by the law of this state, for the reason, that as we know nothing, in the first instance, of the statutes of such foreign jurisdiction, we presume them to be the same as ours, and therefore make ours the rule of decision. And, therefore, if it is claimed that the law of the place of contract, establishes a rule unknown to our law, such foreign law should be proven, and to'be admissible in proof, should be properly averred or set out in the pleadings. The established doctrine now is, that no court takes judicial notice of the laws of a foreign country, but they must be proved as facts. Story’s Conf. of Laws, § 637, and the authorities cited in note 2. And if a party would introduce such proof, it is not sufficient to aver, as a plaintiff, in his pleadings, that his right to recover is warranted by the law or statute of another state, where his contract was made; nor as a defendant, in his answer, that plaintiff cannot recover by reason of the provisions of such foreign statute, but he must plead the particular statute relied upon, and set it out, as he would any other fact in the case, that the court may be able to see and judge whether the proceeding is warranted, or the defence tenable, under such law. 1 Ohitty Pleading, 247; Holmes v. Broughton, 10 Wend. 75 ; Pearsoll v. Dwight, 2 Mass. 34. In the case before us, there is no pretence that the statute of Illinois, relied upon, is set out -in the answer. Nor, indeed, is there any statute even referred to by the pleader. [469] It is simply averred that- the contract was made in Illinois, and not in Iowa — an averment, which' standing alone, is without either pertinency or' force. Eor though made in Illinois,- it is. not presumed by our courts,'as already shown, that a different rule of - decision -is applicable to it, than would be, if made in this state. Under such an averment, we are very clear that it was not proper to admit proof of the laws of Illinois. .It is said, however, that it appears from the petition, .and was established by plaintiff’s proof, that the.contract was made in Illinois, and that it' was his duty, therefore, to show that under said law, defendant was liable.-. - But it must be remembered that he had brought his action under our-law; and he had a right, therefore, to claim that the court could only administer the lex forir until it was in some legitimate manner shown that the lex loci was different. And finally,.it is insisted that this pleading was sufficient under the Code, to authorize the admission of this evidence. We do not so understand the system of pleading and practice introduced by the Code. It contemplates plainness of averment, and a clear and logical statement of the. very matter r.elied upon for a Recovery, or .defence, and even more particularly than was necessary under the common law practice. If the averment would, as we. have seen, at common law, been insufficient to admit this proof, much more is it defective under the Code. . . : We think that the evidence should not have been received, and that the court erred under the circumstances, in giving the instructions stated, to the jury. '■