of fact more than of law. An action brought against an attorney for negligence turns upon matter of law rather than fact. It charges the attorney with having undertaken to perform the business properly; and alleges, that from his failure to do so, such and such injuries resulted to the plaintiff. Now, in nineteen cases out of twenty, unless the court told the jury that the injurious consequences did, in point of law, follow from the misconduct of the defendant, they would be utterly unable to form a judgment on the matter. Yet even there the jury have to determine whether in point of fact the defendant has been guilty of that particular misconduct. On the other hand, take the case of an action against a surgeon for negligence in the treatment of his patient. What law can there possibly be in the question whether such and such conduct amounts to negligence? That must be determined entirely by the jury." Bona fides, actual knowledge, express malice, and real intention, are questions for a jury. In Harratt v. Wise (d), the action was on a policy of insurance of goods which had been shipped to a blockaded port and there seized. It was found by the jury that notification of the blockade had been published in the London Gazette, and that information of it might have reached the captain of the vessel before he arrived at the port. that it had not reached him A verdict was found for the plaintiff, and a rule for But it was also found when he arrived there. (d) 9 B. & C. 712. a new trial applied for, on the ground that notice in the Gazette was notice to all the King's subjects: and that it must be presumed that the captain knew of it. But it was refused': and Lord Tenterden in his judgment observed:-"Knowledge, like other matters, must become a question of fact for the decision of a jury." So in indictments for libel and all felonies it is for the jury to pronounce on the animus or malice of the act. But In questions whether a communication is privileged, the jury must speak to the bona fides; and, if they affirm it, it is a question of law whether the occasion of publication was such as to rebut the inference of malice. Thus in actions for defamation it is matter of law for the judges to determine whether the occasion of writing or speaking criminatory language, which would be otherwise actionable, repels the inference of malice, and constitutes what is called a privileged communication (e); but if there is any evidence of malice it should be left to the jury (ƒ). It may be stated broadly, but subject to limitations, that In all cases where the character of a fact depends on an inference from circumstances, the jury must pronounce on the character and the fact; but where the character of a fact depends on a latent intention, there it is (e) Cook v. Wildes, 5 E. & B. 340, per Lord Campbell, C. J. (f) Harrison v. Bush, 5 E. & B. 344; Beatson & Skene, 5 E. & B. 838. the duty of the jury to find the fact, and of the judge to declare its character and meaning. Thus in an action for goods sold and delivered, where the plea is infancy, and the replication that the goods are necessaries, the jury will pronounce them to be necessaries or not necessaries according to the condition of the infant. But the court will tell the jury in such a case that the goods can only be considered necessaries so far as they are really useful and suitable to the infant's condition (g). So the suppression of evidence, such as a will, by an adverse holder will warrant the jury in inferring that it is consistent with the case of the other party (h); and generally where the facts warrant an inference the court will not disturb a verdict (i). An illustration of the second branch of this rule is found in the maxim, that— The construction of written documents is for the judge; but the construction of peculiar or technical phrases is for the jury. Thus the judge will instruct the jury as to the meaning of Acts of Parliament, records, deeds, wills, and written contracts generally, even where the evidence is secondary (k); and the jury is bound to follow his construction. But it seems that the question whether an article is of a certain description (g) Harrison v. Fane, 1 M. & Gr. 550. mentioned in an Act of Parliament, is for the jury (1). In Hutchinson v. Bowker (m), Parke, B. said :— "The law I take to be this: that it is the duty of the court to construe all written instruments; if there are peculiar expressions used in it which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what the meaning of those expressions was, but for the court to decide what the meaning of the contract was." In that case, it was attempted to prove a contract, for the sale of barley, by letters, one of which offered good barley, and the other accepted the offer, "expecting you will give us fine barley and good weight:" and the court held that, though the jury might be asked as to the mercantile meaning of the words "good" and "fine," yet, after having found a distinction between them, they could not further decide that the parties did not misunderstand each other; but were bound to take the interpretation of the contract as a matter of law from the judge. In patent cases it is for the judge to construe the specification of a patent (n), but for the jury to decide whether or not there has been an infringement of the patent (o). In libel it is for the judge to say whether words in ordinary use have a defamatory meaning; but for the jury to say whether words of a cant or slang character have acquired such a meaning (p). So the substantial truth of the alleged libel will also be for the jury (q). Thus the court have (1) Brunt v. Midland Railway Co. 2 H. & C. 889. (m) 5 M. & W. 542. (n) Bovill v. Pim, 11 Ex. 718. (0) Delarue v. Dickenson, 7 E. & B. 738. (p) Barnett v. Allen, 3 H. & N. 376. (9) Alexander v. N. E. Railway Co. 34 L. J. Q. B. 152. directed juries, that the words "as soon as possible," in a contract, mean without unreasonable delay according to the circumstances (q); that "forthwith" has a similar meaning (r); but the signification of words, according to the custom of particular trades, such as "bales," is for a jury (s). Under this rule also is contained the general principle that whenever facts have to be proved by oral evidence or extrinsic circumstances the jury pronounce the inference; but when the evidence assumes a written form this function belongs to the judge. Thus when the question is whether a contract has been executed as an escrow, or not, if the question depend on facts the jury decides: if on the construction of writings it belongs to the judge (t). But when secondary oral evidence of writings is admitted it has been settled lately that the judge and not the jury construes the evidence, because the issue is substantially one on the construction of a writing (u). The court, however, will not consider the question of improper rejection of a document by a judge, unless it clearly appears that it was formally tendered in evidence at the trial (x). This rule does not apply in cases of actionable or indictable tort, where guilt or innocence is to be inferred from the contents and meaning of a writing. Thus, on an indictment for writing a menacing letter, the jury will say whether the language amounts to a menace (y). In libel, the question of libel or not libel (q) Attwood v. Emery, 1 C. B. N. S. 110. |