7 Or. 54 | Or. | 1879
By tbe Court,
The first ground of error assigned is that of excluding the evidence offered by the appellant. It is claimed tbat the excluded evidence was offered for the purpose of showing tbat the laws of the Chinese Empire relating to the subject
Thus it will be seen that it is directly provided by this section, that the unwritten law of a foreign country must be shown by “oral testimony of witnesses skilled therein,” or “by the published reports of the decisions of the courts” of that country. We think there was no error in excluding the evidence offered by appellant.
It is further claimed that there was error in the instructions of the court to the j ury.
They were instructed as follows: “That as to what the laws and customs of China are upon the subject of marriage was a question of fact for the jury,” and they were allowed to find upon that subject. The court also instructed the jury “ that it was their duty to construe the said agreement in writing, purporting to be a marriage contract, and that it was only admitted as evidence on the ground that it was part of the transaction which was claimed to be a marriage between the said Moy Mow and the said Wong Ho.”
The general rule is that courts do not take judicial notice of the laws of a foreign country, but they must be proved as facts. Mr. Story, in discussing the question whether they are to be proved as facts to the jury or to the court in trials at common law, says: “All matters of law are properly referable to the court, and the object of the proof of foreign laws is to enable the court to instruct the jury what, in point of law, is the result of the foreign law to be applied
The construction and legal effect of the written agreement introduced in evidence by appellant was a question of law for the court, which should not have been left to the determination of the jury. And the last instruction of the court, which undertook to submit the construction and legal effect of that written agreement to the jury, was erroneous. The judgment of the court below should be reversed and a new trial awarded the appellant.