It now appears that the telegram sent by the plaintiff was received in evidence to prove the truth of the facts asserted therein. The writing was a self-serving statement, made five hours after the occurrence of the event described. During this time the plaintiff had abundant opportunity for reflection or fabrication, and the statement was made on her own volition. The element of spontaneity was lacking. It could not be found from the facts surrounding the declaration. Hence it follows that the admission of the statement in evidence was error of law, correctable upon exception. St. Laurent v. Railway, 77 N.H. 460, and cases cited. *Page 523
This conclusion renders a new trial necessary; but as the question of the proper procedure for proving the Canadian law has been fully argued and must arise upon a retrial of the case, it has been considered. Foreign law is a question of fact. Kimball v. Kimball, 75 N.H. 291. Being one of fact, it is not reviewable here, nor can it be transferred to this court for decision in the first instance. Nawn v. Railroad, 77 N.H. 299. In Jenne v. Harrisville, 63 N.H. 405, the statutes and decisions in Vermont were made parts of an agreed state of facts, and the damages were to be thereafter assessed in accordance with the Vermont law as the same should be determined at the law term. 151 Briefs and Cases, 143. The refusal of the law court to act in the premises shows that the theory upon which the present question was disposed of at the trial is erroneous. If the law court cannot undertake to construe and apply foreign law when the parties have agreed to such procedure, and when the issue is not complicated by the addition of expert opinion pro and con, much less can it do so upon the motion of the trial court, especially when there is opinion evidence to be weighed and considered.
The question to be determined as a fact by the trial judge (Hall v. Costello, 48 N.H. 176) is not wholly what has been held in some earlier Canadian cases, but what would be held if the present suit had been brought in that jurisdiction. The mere fact that the trial court there is bound to follow a precedent established by a committee of the privy council of England does not settle the matter. It might be that the precedent was palpably erroneous, and that there was every probability that it would be overruled, if the present case were taken there for final decision. In short, it is, as the cases hold, a question of fact what the foreign law is.
No doubt there may be a case where there is a positive statute, or a uniform and manifestly sound line of decisions, upon which the evidence would warrant but one conclusion. That would present the ordinary situation calling for a conclusion as matter of law, because of a lack of evidence upon which to base any other result.
"The law of another State is a fact to be proved, like any other fact, by evidence. Where the evidence is a single statute or a decision of a court, the language of which is not in dispute, the interpretation of it presents a question of law for the court; but where the law is to be determined by considering numerous decisions which may be more or less conflicting, or which bear upon the subject only collaterally, or by way of analogy, and where inferences must be drawn from them, the question to be determined is one of fact, and *Page 524 not of law. . . . The judge of the Superior Court, in considering the evidence, was called upon to determine, as well as he could, what is the present state of judicial opinion in the highest court of New York in reference to the question before him, as manifested by the published decisions of that court. The matters involved in reaching this conclusion presented a question of fact. On this bill of exceptions we cannot revise his finding upon this part of the case, unless it appears that there was no evidence to warrant it, or, in other words, unless the statutes and decisions conclusively show, in spite of any possible inference of fact or doubts in the interpretation of them, that his finding is wrong." Wylie v. Cotter, 170 Mass. 356, 357, 358.
The only question of law arising is whether there is any evidence to sustain the conclusion reached. In this case that question was determined in the affirmative in the foregoing opinion.
It has been suggested in argument that doubt is thrown upon the authority of the earlier cases by the course pursued in Kimball v. Express Company,76 N.H. 81. In that case there was apparently no consideration of the foreign law in the superior court. In the argument here, counsel for the defendant claimed that the law of Indiana, where the contract was made, was in its favor, and cited cases from that jurisdiction to sustain the position. The question of Indiana law, as it was "understood" to be, was then considered without argument or consideration of the nature of the question involved. In so far as this case is in conflict with earlier decisions, both here and elsewhere, it cannot be sustained.
The question is one of fact, to be decided by the presiding justice as a foundation for instructions to the jury, if his conclusion is such as to make the case one for their consideration. In deciding it the statutes and decisions of the foreign state are to be considered, so far as they are put in evidence, and the opinions of experts may also be received. Wig. Ev., s. 1953. Exceptions to his finding can raise only questions of the admissibility or sufficiency of the evidence. Its weight is finally determined by him.
Verdict set aside.
PARSONS, C. J., and WALKER and PLUMMER, JJ., concurred.