To quote the words of Lord Brougham; "The law of evidence is the lex fori which governs the courts whether a witness is competent or not, whether a certain matter requires to be proved by writing or not, whether certain evidence proves a certain fact or not; these and the like questions must be determined, not lege loci contractûs, but by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it" (o).

(0) Bain v. Whitehaven Railway Co., 10 H. L. Cas. 1.

CHAPTER II.

THE FUNCTIONS OF JUDGE AND JURY.

Ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices. Whether there is any reasonable evidence is a question for the judge; but whether the evidence is satisfactory is a question for the jury (a).

THE meaning of this rule, which may be regarded as fundamental, is, that it is for the judge to decide on the character of all evidence that may be tendered, and to admit or reject it according to its consistency or inconsistency with the established rules of courts. The ancient rule is, however, exploded, by which a judge was bound to leave a case to a jury if there were any evidence for their consideration. Where there is merely a scintilla of evidence a judge ought not to leave it to a jury (b); and the test whether any evidence only amounts to a scintilla is to assume that there is no evidence to contradict such evidence, and then to inquire whether there would be evidence which would justify a jury in finding a verdict (c).

(a) Avery v. Bowden, 6 E. & B. 953; Wheelton v. Hardisty, 8 E. & B. 232.

(b) Per Cur. Avery v. Bowden, sup.

(c) Per Mellish, L. J., Ex parte Morgan, L. R., 2 Ch. D. 90; 45 L. J., Bank. 43; 24 W. R. 418.

It is of course a very delicate function for a judge to withdraw a case from a jury on the ground either that there is no evidence, or merely a scintilla; and it seems that when there is any sort of primâ facie presumption in a case (d), or a condition of facts. which does not clearly negative the supposition that there is some evidence, the decision is for the jury, and not for the judge (e), and the evidence has never been held to amount to a scintilla only in a case where a witness has positively sworn to something having taken place within his own knowledge, by which, if it did take place, the case was proved (ƒ).

It was laid down by the House of Lords in Metropolitan Railway Co. v. Jackson (g) that in actions for negligence it is for the judge to say whether from any given state of facts negligence can legitimately be inferred, and it is for the jury to say whether it ought to be inferred. In such actions it has been held by the Court of Exchequer Chamber that there are some accidents which imply negligence from the very nature of the circumstances, as where the plaintiff was struck by a brick which unexpectedly fell from a railway viaduct immediately after a train had passed (h); though when there is no such pre

(d) Dare v. Heuthcote, 25 L. J., Ex. 245.

(e) Jeusbury v. Newbold, 26 L. J., Ex. 247.

(ƒ) Per Mellish, L. J., Ex parte Morgan, ubi supra.

(g) L. R., 3 App. Cas. 193; 47 L. J., C. P. 303; 26 W. R. 175.

(h) Scott v. London Dock Co., 3 H. & C. 596; Kearney v. London, Brighton & South Coast Railway Co., L. R., 6 Q. B. 759; 40 L. J., Q. B. 285; 18 W. R. 1006.

sumption, the plaintiff must of course give affirmative evidence of negligence (i); and where the evidence is equally consistent with the existence or absence of negligence, the case must be withdrawn from the jury (k).

It is for the judge to explain the law to a jury; and the jury is bound to take the law to be that which the judge tells them that it is. It is for the judge to tell them how the law is applicable to the issues of fact, and to distinguish for them questions of law from those of fact; to decide on the competency of witnesses; to examine them as to their religious belief, before they are admitted to be sworn; and to decide whether or not the taking of an oath would have any binding effect on their consciences (1). So also it is the function of the judge to determine whether a witness be sane or insane; whether dying declarations, in cases of homicide, are admissible evidence as having been made by the deceased in the expectation of immediate death; whether secondary evidence may be substituted for primary evidence (m); whether a document comes from proper custody, or is properly stamped; and generally on all conditions precedent to the reception of evidence. But he cannot decide the question of the existence of an original document if denied by

(i) Hammack v. White, 11 C. B., N. S. 588; followed in Manzoni v. Douglas, L. R., 6 Q. B. D. 145; 50 L. J., Q. B. 289; 29 W. R. 425.

(k) Cotton v. Wood, 8 C. B., N. S. 568.

(2) See The Evidence Further Amendment Act, 1869, s. 4. (m) Boyle v. Wiseman, 10 Ex. 647.

the pleadings (n). When the judge has once admitted evidence, his function is complete (o): though if, after admitting a witness to give evidence, he is convinced by proof of subsequent facts, and by observation of the witness's demeanour, that the latter is not competent, he may withdraw such evidence from the jury (p). He has nothing whatever to do with the credibility of evidence, which is a consideration solely for the jury. Of course where the judge discharges at once his own peculiar functions and also those of the jury, then it is his duty to estimate the credibility as well as the admissibility of evidence. And in such cases where a judge of first instance has, the testimony being conflicting, based his decision on the credibility of the witnesses, a Court of Appeal will not, except in cases of extreme pressure, reverse his decision. When, however, the decision does not depend on the credibility of the witnesses, but is based on inferences drawn from the evidence, it may, even without such pressure, be reversed by the Court of Appeal (2).

It is also the duty of the judge to instruct the jury in the rules of law, by which evidence in particular cases has to be weighed: but in summing up a case to a jury the judge will, in his discretion, comment, or decline to comment, on the weight of evidence.

(n) Stowe v. Querner, L. R., 5 Ex. 155; 39 L. J., Ex. 60; 18 W. R. 466.

(0) Heslop v. Chapman, 12 Q. B. 928.

(p) R. v. Whitehead, L. R., 1 C. C. R. 33; 35 L. J., M. C. 187; 14 W. R. 677. See also R. v. Hill, 2 Den. 254.

(1) The Glannibauta, L. R., 1 P. D. 283.