Page:North Dakota Reports (vol. 3).pdf/158

 mature deliberation—we think it would be unwise to hold that evidence is admissable to prove only such facts as the court would be bound to judicially note without proof, if such facts really exist. If it be true that the symbol writing is, as alleged by the answer, used in describing land, and “generally understood” by the taxpayers and the people of North Dakota and throughout the western states, the judges and courts of such states are bound to judicially note the existence of such usage. To borrow the words of Chief Justice Caton, ‘courts will not pretend to be more ignorant than the rest of mankind.” If evidence became necessary in this case to prove that the usage in question was generally understood and in common use by the taxpayers and people of this state and of the western states generally, then, and for the same reason, evidence would be needed to certify the same facts to any other trial court in the state in which the question might arise. Vanada v. Hopkins, (Ky.) 19 Amer. Dec. 92; Bailey v. Publishing Co., 40 Mich. 251; 12 Am. & Eng. Enc. Law, p. 197, note I.

The judges of the Supreme Courts of Minnesota and North Dakota alike rest under an official obligation to notice without proof such usages and customs as have become general among all classes of people in these states; yet in both states the courts have held squarely that the symbol writing, such as is found in the tax rolls in this case, has not the sanction of general usage in such states, respectively. Whena usage becomes general, the courts will notice the same. Bish. Cont. § 445. It is true that many usages are not judcially noticed in the courts. Such usages are often shown to exist by testimony. “The leading distinctions between customs, considered as usage, and law, is that the former is restricted to a particular locality or class of persons, or business, while the latter is universal throughout the state.” Section 446, Id. When a usage is special, i, e. limited to a particular locality or business or class of persons, the judges are not always supposed to be aware of its existence, and hence proof is sometimes resorted to, when the fact is disputed, to establish or disprove the existence of the usage. Section 450, Id. When it is shown that