Langdon v. Young

33 Vt. 136 | Vt. | 1860

Red field, Ch. J.

Upon the principal question, how far the court will take judicial notice of the law of Canada, it is enough perhaps, to say, that we could not assume to know the law of any foreign state. But in the absence of all proof, courts assume certain general principles of law, as existing in all Christian states, as that contracts are of binding obligation, and that personal injuries are actionable. This would allow us properly to assume that flagrant violations of the fundamental principles of moral obligation, such as theft and murder, are regarded as crimes, and that to accuse one of such crimes, thereby exposing him to persecution, ignominy and disgrace, is an actionable slander. If this be sound, and it has not been questioned in the argument, (but we have had no time to examine the subject,) we think that a charge of giving poison to do great bodily harm, is equally to be regarded as slanderous, as if it were a charge of poisoning with intent to kill. Such an act was undoubtedly indictable at common law, and would be, we think, regarded as a grave offence in all Christian states.

Under the charge, in the present case, the jury might have found that the charge implied a purpose of injuring the child to any extent, short of taking life. And as there was testimony tending to show this, if there was such a count in the declaration, the plaintiff had the right to a charge applicable to the whole case.

The new count alleges that the defendant accused the plaintiff of giving the child poison with intent to kill or injure the child. This seems to put a different construction upon the act from that assumed by the court, as the only charge in the declaration, except that of giving the poison with intent to kill. This count certainly does raise the question how far it is slanderous to charge one with giving poison, with intent to injure the person to whom it was given. This does not necessarily imply that it was given with intent to do serious and extreme injury. As the construction is to be most unfavorable to the pleader, we could not fairly assume perhaps, in the present case, that any thing more is alleged in this portion of the count, than that the poison was given for the purpose of injuring the child. It does not readily occur to us how we "could fairly gauge the extent of this injury, at such a degree of intensity, as to be able to say that it necessarily partook of the same character, as a charge of giving poison with intent to kill, 'or with a reckless indifference to fatal results, and if not, we are not prepared to say, that in the absence of all proof such a charge was actionable, by the law of Canada, we could take judicial notice that it was-

As the laws of foreign countries, when relied upon in the trial of an action, are to be proved, like other -facts, there is perhaps no danger of doing injustice here, if we assume, that if the plaintiff could have shown the law of Canada to be su'ch as to be of advantage to him, he probably would have given evidence upon that point. We think it safe then to say that in the absence o£ such proof and with the fair presumption in such cases, it is proper to assume that such a charge is not slanderous in Canada, and if not so there, it gives no cause of action here.

The judgment is affirmed.