Of things which do not appear, and things which do not exist, the rule in legal proceedings is the same.
This rule is of special application to courts of law, both civil and criminal, which refuse to take cognizance of any matter not properly before them. As, in affidavits, pleadings, records, warrants, orders, etc, whatever does not appear upon the face of the document is deemed as not existing, and no presumption to the contrary will be entertained. This rule, in strict construction, however , has reference chiefly to criminal proceedings and other acts of a public nature ; as, where a warrant for the apprehension of any person, or for his imprisonment, omits to state the cause, in which case, no cause appearing upon the warrant, the apprehension or detention is in such case unlawful. There are, notwithstanding, some cases which seem to contradict this rule ; as, for example, evidence will be admitted to explain a latent ambiguity in a deed or other document between parties with a view to support it. So, where a deed is defective for want of consideration ; as, where a deed operating under the Statute of Uses omits to recite a consideration, the parties interested in supporting it may show a sufficient pecuniary consideration not inconsistent with the deed. So in a guarantee, when the consideration was required to appear upon the face of the instrument, where the consideration was ambiguously expressed as implying either a past or future consideration, parol evidence was allowed to show that the consideration was future. There are also matters of which the courts will take judicial notice without proof, as public general statutes, the course of proceedings in Parliament, the privileges of the House of Commons, the seals of State, public proclamations, the Gazette as to acts of State, judgments in rem, the jurisdiction of the several superior courts, the privileges of their officers, their records, and many others of a like nature.
Another rule having reference to the one under consideration, and particularly applicable to criminal cases, is “Quod non apparet non est, et non apparet judicialiter in isto casu ante judicium” — That which appears not, is not, and appears not in the case judicially before judgment. In accordance -with which, it is stated that a man cannot be punished for a second offence before he be adjudged for the first ; and that the second offence must be committed after judgment given for the first ; nor for the third before he be adjudged for the second ; and that the third must be committed after the judgment for the second ; for “ Multiplicata transgressione, crescat pcenae inflictio,”
It may be said that the maxim under consideration is contradictory of the rule, “ Id certain est, quod certain reddi potest” — That is certain which can be made certain ; but it is not so, for the application of this last rule prevents the necessity for the application of the one under consideration, by the production of the evidence necessary to establish the fact sought to be proved. Again, the rule “ Id incertum est, quod certum reddi nullo modo potest” — That is uncertain which cannot be made certain, may be used in support of the principal maxim ; for, that which is in itself uncertain cannot by itself be made certain ; nor can that which is in fact uncertain by possibility be made certain ; as, an event not within the control of human power.
1 Co. 17G ; 4 Co. 66 ; 5 Co. 6 ; 9 Co. 47 ; Co. Lift. 4.', 96 ; 2 Inst. 479 ; Tregany v. Fletcher, 1 Ld. Raym. 154 ; Ogle v. Norcliffe, 2 Ld. Raym. 869 ; Bishop of C, 1 T. R. 409 ; Jenk. Cent. 207 ; Dupay v. Shepherd, 12 Mod. 20G; Van Omeron v, Dowick, 2 Camp. 43; Tancred v. Christy, 12 II. &W. 316; Edwards v. Jovons, 8 C. B. 436; Lake v. King, 1 Saund. 131; Stock- dale v. Hansard, 9 A. & E. 1 ; Sims v. Marryatt, 17 Q. B. 281 ; 8 & 9 Vict, c. 113, s. 3 ; 13 & 14 Vict. u. 21, ». 7; 14 & 15 Vict, c. 99.