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not take notice of the time ex officio, the day was on which the day of the though Mr. Weston said that the opinion month fell.” 18 of Roll was that they might, if they Thus far we have dealt with one branch pleased.”
of our survey, and now let us pass to the The eighteenth century witnessed the consideration of the second, namely, judifull acknowledgment of the doctrine com- cial recognition ex officio of the days of the pleted. In Q. v. Dyer:
court's term. We commence here with a "all the court agreed
case dating from the end of the sixteenth almanac is part of the law of England century. In Bishop v. Harecourt,19 three of which the Court must take judicial justices said that where plaintiff expressly
alleges that the term began on June 7 and
defendant does not deny it, the justices Another prejudicial distinction was dis
are not constrained to search the rolls of carded next year:
the court. And Anderson, J., who opposed “The calendar is law of which we as
this view of the law gave judgment for judges must take notice. Such a fault
the plaintiff against his own opinion. may be assigned for error ore tenus at
Thirty years barely elapsed when Justhe Bar. ''15
tice Anderson's opinion was fully vindiTime, however, was given to Serjeant
cated in the case of Austen v. Bewley,20 Hall to argue the second point, but the
where it was said that the Court takes ex result was the same.
officio notice of the commencement of the By the end of the first quarter of this term.
. century the second point became strongly It will be noticed that the two last cases established, but as to the first some doubt merely established the rule that the Court still continued to exist. As late as 1720 takes judicial notice only of the commencePratt, C. J., said this:
ment of the term. It is only gradually "to affirm a judgment we will look into that the rule was extended to cover the the almanack, but I think we are not
whole term of the court. Only six years bound to do it to reverse one.
later, in Mitchel V. Ramsay, Jones and But a hundred years later the doctrine Doderidge, JJ., said: under review was upheld even at nisi
“Les termes de Pasche et Trinite comprius. In R. v. Brown, Littledale, J., re- mence sur moveable feasts et guide pur marked:
le change del lune. Et pur ceo si il ne “Even at this stage I am bound to
alleadge de facto que le terme finie detake judicial notice that the day averred
vant le 21 Julii nous ne interdomus, mes in the indictment is in fact within the
fuit issint averre en essignment period mentioned in the statute."17
d'error. "21 The last English case where the point
This doctrine that the Court takes judical was raised is Hanson v. Shackelton, where
notice of immoveable feasts, but not of the following statement was made by Cole moveable seems to have been upheld in ridge, J.:
another case closely following the one just
cited: “I have consulted the other judges of the court and they are of opinion that
“Oncore le Court nest lie a prendre
notice de ceo sans avernment de ceo, nec I ought to take judicial notice of what
a inspecter Almanack pur ceo. Mes fuit (14) (1703) 6. Mod. 81 and see Brough v. Parkings (1703). 2 Lord Raymond 992.
(18) (1835) 4 Dowl. 48. and see Pearson v. Shaw (15) (1704) Harvey V. Broad, 6 Mod. 196 and (1844), J. Ir. L. R. 1. at p. 160; 2 Salk. 626. (16) Hoyle v. Lord Cornwallis. 1 Strange 387. (20) (1620) Cro. Jac. 548. (17) (1828) 1 Mood. & Malk, 163,
(21) (1626) Latch. 118.
(1590) Cro. Eliz. 210.
dit per Justice Jones que ils sont lie a days of the terms or at least its indisprendre notice de immoveable feasts
cretion.''28 nesmy de moveable feasts come ceo Another step forward was made in Ball
v. Rowe. The report s'ates tliat : The year 1666 was especially rich in de
“The Court will take notice of the end cisions upon the point now under consid of term. eration. In Courtney v. Phelps 13 it was In the next case of Pullein v. Benson, held that the Court is not obliged to take doubt was cast upon the hitherto prevailing notice of the day of the month on which opinion in regard to the non-recognition of the return of the moveable term falls The the days on which moveable terms fall, judges expressed divergent opinions as to e. g. : how such a fact is to be tried. Windham "for they (the Court) will take notice J., said that:
of the beginning and end of the fixed “had an issue been joined upon it, it terms, if they will not of the morrable were triable by the almanacks as well as terms. words by dictionaries, which are proofs.' And only the eighteenth century brought But Twisden, J., declared :
about complete recognition of the doc"the Court is to take notice that Hilary
trine. Thus, in Thompson v. Southwell it term begins eight days after the feast,
was said: but not on what day of the month that
“The Court would judic'ally take feast is, and though a day were put as
notice of the first day of that term. viz, a fact in issue it must be tried by jury
what day of the month it was. and not by almanacks.'.4
And, finally, in Estwick v. Cooke it was
affirmed that: In Champion v. Skipweth:
“The Court will take notice of the be“le Court doubt si il doent prender notice del jour del mois de commence
ginning and end of a moveable term.”3%
We have now completed the tracing of ment et fine des termes de Trinite et
the origin of the modern legal doctrine Pasche quia sont moveable.''96
that the Court takes judicial notice of the Finally, in re Sterling the Court took time. We have seen that it had developed judical notice of the end of the term. The
from the ancient mode of proof known as reporter's note adds: “coment ne voent the trial by almanacs. It remains for us ceo faire in le primer cas, devant. ''26 to test the modern rule by proving, if pos
By the end of this century the judges sible, that the almanac still governs the seem to have adopted a compromise be application of the present day law on this tween the two extreme views. In Kelsey v.
point. Greene decided in 1674 it was said:
In Collier v. Nokes, the Court was asked "per Curiam : the Court at discretion to take judicial notice of a certain hour, may by almanacks examine whether the and Wilde, C. J., said: day be after the term
and “The Court took judicial notice of the though it doth not appear when the days of the calendar, but not of the term began or ended
hours. In case like this if the time was And
material it must be proved.''33 “The Court cannot take notice of the And in Tutton v. Darke34 the Court did (22) (1632) Griffin Bedle, Roll's
(28) 3 Keeble, 397.
(29) (1693) I Lord Raymond, 4. (23) (1666) 1 Lev. 196.
(1698) 1 Lord Raymond, 349 at p. 354. (24) (1666) 2 Keeble, 122.
(31) (1701) 12 Mod. 647. (25) (1666) 1 sid. 308.
(32) (1729) 2 Lord Raymond, 1557. (26) (1666) 1 Sid. 304.
(33) (1849) 2 C. & Kir. 1011. (27) 3 Keeble, 385.
(34) (1859) 29 L. J. Ex. 271.
not know without the proof whether a cer- The second authority, which is the case tain hour was after sunset and another of Hedderich v. The State37 is still less in hour before sunset. Such decisions are point. It was held there that the Court difficult to reconcile or explain, granted takes judicial notice of the usual method that we know that the Court does take of reckoning time, for this is a matter of judicial notice of the divisions of time. common knowledge. Such common knowl. The answer to the riddle is supplied by edge was applied there by the Court in Chief Baron Pollock in the last mentioned interpreting a sentence in a statute which case: the old almanac does not give the mentioned a period of time “between the time of sunrise and sunset or the hours, hours of eleven p. m. and five o'clock a. m.” for the smallest division of time contained This decison, therefore, in no way may be in it is the day. So that, we may justly cited as
cited as an authority for a proposition paraphrase the late Professor Maitland, that the Court takes notice ex officío of that the trial by almanacs is dead, but its the hours, minutes and seconds. spirit still rules us from its grave.
In Finney v. Callendar, Emmett, Chief There are two American cases which
Justice of Minnesota, said: seem to accept the view that the Court
“As to the other question3s the plaintakes judicial notice of the hours-such,
tiff claims that such an answer is decepat least, is the opinion of some of the text
tive as indicating only that the time of writers on the law of evidence. 35
making the note was misstated without In Safford v. Douglas the opening words
advising nim of the defense relied upon. of M'Coun, V. C., are:
On the other hand the defendant urges
that the allegation is sufficient the Court “It seems that courts are bound to
being bound as they allege to take judilook to the fractional parts of a day in
cial notice of the calendar time. order to determine the priority of liens
"The almanac has long been regarded by judgment and executions where several have been obtained on the same
and held as a part of the law of the land. day.36
It cannot be said to be a special law, * The revised statutes, vol. 2, p. 359,
therefore it must belong to the general
law; and being so it is governed by the par. 3, speak of the time of docketing a judgment (not of the day) as giv
ordinary rule applicable to all general
laws and need not be specially pleaded. ing a lien on lands; and executions take
At least the necessity of making this exeffect, as to personal property, from the
ception has not been demonstrated to hour and minute they are received by the sheriff; and they are to be paid in the order in which they are received-the
The origin of the doctrine of the judicial
notice of the time is well known and is exact time being noted upon them by the officer. The case of Lemon v. Staats correctly understood in the United States (1823), 1 Cowen 592, is a direct and ex
in the same sense as in England. There
is no necessity therefore to ingraft doubtplicit authority for the rule; and see 2
ful distinctions here upon this doctrine by R. S. 365, par. 13. And the same rule is applicable here, in respect to the filing
the use of forced interpretation of authoriof creditor's bills which create an equit.
ties bearing only slight reference to the able lien, as at law with respect to judg
point in question.
(37) (1895) 101 Ind 564. ment and execution."
Whether defendant has sufficiently inter
posed a defense by aileging in his complaint that This case was, therefore, clearly decided
was made on October 13. 1861, which on statutory grounds.
appeared on the examination to have been Sun
day, although there was no allegation of that fact. (35) Chamberlayne's Evidence. par. 704.
(39) (1862) 8
Smithwick (1851), 4 Fla. 158; Cohn v. Kahn (1895), (36) (1844) 4 Edw. (N. Y.), 537.
14 Misc. Rep. 255.
MODEL OF AUTOMOBILE
FELAKOS V. AETNA INS. CO.
119 Atl. 277
(Sup. Court of New Jersey, Nov. 8, 1922)
The warranty that the automobile insured against theft was a model 1916, when in fact it was a model 1913, was of a material nature, defeating recovery on the policy.
Likewise held where a 1907 car was repre. sented to be a 1910 model. Smith v. American Auto. Ins. Co., 188 Mo. App. 297, 175 S. W. 113.
And where a car represented to be a 1909 model was in fact a model of 1906. Solomon v. Federal Ins. Co., 176 Cal. 133, 167 Pac. 859.
And where a 1906 model was said to be that of 1907. Harris v. St. Paul F. & M. Ins. Co., 126 N. Y. Supp. 118.
In Felakos v. Aetna Ins. Co., N. J. L., 119 Atl. 277, it is held that a statement that the automobile insured against theft was a model 1916, when in fact it was a model 1913, was a breach of warranty as to the description of the automobile insured, and not a statement of opinion or belief or of a matter which the insurer knew was not within the personal knowledge of the applicant, and defeats recovery under the policy.
A representation that the automobile insured against theft and fire was a 1918 model, when in fact it was a 1917 model, the list price of which was less than the list price for the 1918 model, was material to the risk and would avoid the policy as matter of law, even though the representation was innocently made, if it was relied on by the insurer and formed the basis of the insurance. Kenney v. Franklin
William Huck, Jr., of Jersey City, for appellant.
Feinberg & Feinberg, of Bayonne, for appellee.
PER CURIAM. This was a suit based on a theft policy covering an automobile. On the trial it appeared that the automobile described in the portion of the policy entitled "Warranties” as model of 1916 when in fact it was of model 1913.
(1) The trial judge was asked, and refused, | F'where
, the company knows, or has
means at hand to ascertain the year in which the car was made, a misrepresentation as to that fact will not necessarily prove fatal to recovery. British & F. M. Ins. Co. v. Cummings, 113 Md. 350, 76 Atl. 571; Berryman v. Maryland Motorcar Ins. Co., Mo. App., 204 S. W. 738.
In Locke v. Royal Ins. Co., 220 Mass. 202, 107 N. E. 911, it was held that the question whether such misrepresentation was material was for the jury, the other information supplied being correct.
ITEMS OF PROFESSIONAL INTEREST
to find for defendant on the ground that this was a breach of warranty, which was expressed by the terms of the policy as to “the description of the automobile insured” and other matters. The ground of this refusal seems to have been that the plaintiff believed the year was rectly given, relying on Dimick v. Metropolitan Life Ins. Co., 69 N. J. Law, 384, 393, 55 Atl. 291, 62 L. R. A. 774. But that case is not in point, for the statement berore us was not of an opinion or belief, but of a fact warranted as such, and is not a matter which the insurer must know is not within the personal knowledge of the applicant; on the contrary, the natural assumption would be that an owner would know the year's model of his car.
(2) The warranty was of a material matter within the plain implication of Rabinowitz v. Vulcan Ins. Co., 90 N. J. Law, 332, 100 Atl. 175.
The judgment will be reversed. We take the liberty of suggesting to counsel for respondent that, to incorporate into a brief part of the opinion of the court below, apparently as original matter, is not calculated to impress the court with the industry of counsel.
Nearly every man thinks that he is naturally fitted to govern his fellow man and generally he has some pet theory he would put to the test of some hobby he would enforce all others to obey. Read what they are proposing in some of the state legislatures over the coun. try:
A measure prohibiting smoking in public places is now pending in the Minnesota Legis. lature. Another in the New York Assembly would limit the amount of damages collectible for broken hearts in breach of promise suits to 6 cents.
The Arkansas and Oklahoma Houses of Representatives have passed bills which would prohibit the teaching of the theory of evolution in public schools.
A bill to abolish all athletics in schools maintained by the state, cluding the univer
succeed have usually a vigor of body and mind, which of itself accounts for their longevity.Solicitors' Journal (Eng.), Jan. 6, 1923.
sities, has been introduced in the Kansas House of Representatives.
Pensioning of farmers is asked in a joint resolution now before the Kansas Legislature. The plan proposes a pension of $10 a month for every farmer who has actually farmed for ten years, $20 a month for one who has farmed twenty years and $30 a month for thirty years.
In Minnesota, too, any person who willfully furnishes a newspaper with a false statement is guilty of a misdemeanor, under the terms of a law enacted by the present Legislature. The law is aimed at practical jokers and malicious persons who send in false notices of weddings, engagements or other "events." Any person who gives such misinformation to a newspaper "willfully, knowingly and maliciously" comes under the provisions.-Saturday Blade.
SELLING DEADLY LIQUOR MADE MURDER
A bill has been introduced in the New York legislature proposing to add to the legal definition of murder, in this state, the following: "Any person who sells, gives away, or other. wise furnishes intoxicating liquor which causes the death of a human being is guilty of murder in the first degree and punishable accordingly.” -Chicago Legal News.
Judges, especially of appellate courts, would no doubt commend this volume to all practicing lawyers. Lack of scientific preparation of briefs is a common cause of complaint. This lack imposes upon the judges great additional labor as well as annoyance. The subject of brief drawing is apparently but little considered by lawyers generally, when the fact is that it is one of very great importance.
The author of Brief Drawing is Mr. Ralph Curtis Ringwalt, A.B., LL.B., of the New York Bar. He is also the author of Briefs on Public Questions, Modern American Oratory, Etc. The publishers are Longmans, Green & Co., New York. The book contains 214 pages.
Mr. Ringwalt treats his subject in a logical and systematic manner. Part I, being introductory, treats of, to use the chapter titles, The Brief and Its Importance; Library Research; Reading and Note Taking. Part II is headed The Elements of Argumentation, and covers The Topic; The Audience; What Must Be Proved; Method of Proof; Proof—Reasondng and Proof-Evidence. Part III, entitled Brief Drawing, contains chapters on, The Elements of the Brief Form; The Expianatory Paragraph; The Argumentative Paragraph; The Introduction; The Argument; The Conclusion; The Brief as a Whole.
The book is well and interestingly written, and fully meets the stated purpose, which is: “To tell: (1) how to collect facts, (2) how to reason about them logically, and (3) how to organize them systematically.
The work is recommended for its practical value to the practicing lawyer. In these days of high prices and profiteering, the price, $1.50 net, has a strong appeal.
NONAGENARIANS IN THE LEGAL PRO
The Law Times, in an interesting article on the legal changes of 1922, notes the passing away of a large number of distinguished or well-known figures in the courts whose average age it estimates at eighty-five years and several of whom had lived nine decades. This is certainly a remarkable testimony to the longevity of successful lawyers. Our contemporary explains this longevity by the possession of "regular daily habits of mind and body," plus the attribute of “character" in men who do well in the legal profession. No doubt, this has its effect. But among artisans and farmers and men of business similar regularity of habit and possession of character by no means neces. sarily seem to have the same effect. We rather think the correct explanation is different. What is true is that the Bar, essentially a "wearing” profession involving strenuous labor, requires as a rule exceptional robustness of constitution in those who succeed in it; even temporary illness often destroys a young man's practice for years, if not forever. Those who
CASES ON BUSINESS LAW
Acknowledgment is to be made to the West Publishing Company for “Cases on Business Law," by Prof. Britton of Indiana University, and Bauer of the University of Illinois, recently come to hand. This comprehensive collection of cases, although expressed to be intended for the use of students in schools of commerce and business administration, will please the professional law student as well. A particularly happy arrangement is that an explanatory