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to the infant's condition.1 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;2 and generally where the facts warrant an inference the court will not disturb a verdict.3

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 ; and the jury is bound to follow his construction. In Hutchinson v. Bowker,5

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 inter

1 Harrison v. Fane, 1 M. & Gr. 553.

2 Sutton v. Devonport, 27 L. J. 54, C. P.

3 Gibson v. Doey, 27 L. J. 37, Ex.

Berwick v. Horsfall, 27 L. J. 193, C. P.; 31 L T. Rep. 117. 55 M & W. 535.

pretation of the contract as a matter of law from the judge. Accordingly 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.1 Thus the court have directed juries, that the words " as soon as possible," in a contract, mean without unreasonable delay according to the circumstances: that "forthwith" has a similar meaning :3 but the signification of words, according to the custom of particular trades, such as "bales," is for a jury. 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.5 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.6

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. In libel, the question of libel or not libel is entirely for the jury in civil cases, it would appear, as well as criminal cases, and the judge may only give a general definition of the offence.8 But if the jury

1 Barnett v. Allen, 27 L. J. 412, Ex.
2 Attwood v. Emery, 26 L. J. 73, C. P.
3 Roberts v. Brett, 25 L. J. 280, C. P.

4 Gorrissen v. Perrin, 27 L. J. 29, C. P.

5 Furness v. Meek, 27 L. J. 34, Ex.

Berwick v. Horsfall, 27 L. J. 193, C. P.; 31 L. T. Rep. 117.

R. v. Girdwood, 2 East P. C. 1120.

8 Sup. p. 10.

find against the defendant, the court will arrest the judgment, if the writing, on the face of it, appear not to be libellous.1

Finally, it is for the jury, apparently, to determine the meaning of foreign law and documents, on the testimony of skilled witnesses; but for the court to decide on the competency of the witnesses, the admissibility of documents, and the applicability of the foreign law to the matter in issue.2

1 Hearne v. Stowell, 12 A. & E. 719; Goldstein v. Foss, 6 B. & C. 154.

• Tayl. § 40; R. v. Picton, 30 How. St. Tr. 536 to 540,864 to 870.




WHERE either party to an action considers that the judge has wrongly admitted or rejected evidence at the trial, he may appeal from the ruling by a bill of exceptions, or by motion for a new trial.

The former right is a statutory privilege which was given by the 13 Edw. 1, c. 31. It is there enacted that "if one impleaded before any of the justices, allege an exception, praying that the justices will allow it; if they will not, and if he write an exception and require the justices to put their seals to it, the justices shall do so, and if one will not another shall."


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It has always been doubted whether this right extends to criminal proceedings; and the weight of authority is in the negative. At Sir H. Vane's trial for high treason the court would not grant a bill of exceptions, "because criminal cases were not within the statute, but only actions between party and party." "Whether a bill lies or not in any criminal case is a point not settled." And in the recent case of The Attorney-General v. Radloff, it seems to have been held that an information for penalties is a criminal proceeding on which a bill of exceptions will not lie, even with the consent of the Attorney-General.3 But when a verdict is against evidence, a new trial may be granted on an indictment in the nature of a civil proceeding, as for obstructing a navigable strait.4

The exception must be taken at the trial, and before

1 1 Lev. 68. 2 Per Lord Hardwicke, R. v. Preston, Rep. temp. Hard. 323 L. J. 240, Ex. 4 R. v. Russell, 23 L. J. 173, M. C.


verdict.1 It must state the alleged misdirection; and be tendered to the judge, who will seal it. After it is sealed it may be amended.2 If the court above be of opinion that the evidence was improperly received or rejected, they will grant a new trial.3 The same matter cannot be raised by bill of exceptions and also by a motion for a new trial; but if there are independent questions, and one of them may, but the other cannot be raised by bill of exceptions, a party is not precluded from moving as to the latter, because a bill of exceptions has been tendered with respect to the former.4

To entitle a person to a new trial on the ground of the rejection of evidence, it must appear not merely that it was offered and not received, but that the judge was given to understand that its reception was pressed, and that he deliberately rejected it."


If a judge misstates evidence in summing-up, a new trial will be granted if the misstatement was pointed out to the judge at the time, but not otherwise. So it is ground for a new trial if he omit to call the atten tion of the jury to material circumstances.7 A new trial will also be granted if a jury misconduct themselves, or if the judge be dissatisfied with their verdict; and in civil proceedings the courts exercise a general discretion of granting new trials where the verdict appears to have been against the weight of evidence. But no new trial is ever granted in cases of indictable felonies and crimes; nor as a general rule in misdemeanors, although in a few instances it has been granted in the latter cases.9

When facts are established, but it is disputed how far they maintain an issue, it was formerly a practice to demur to the evidence. By this course all facts are

1 Wright v. Sharpe, 1 Salk. 288

Cully v. Doe d. Taylerson, 11 Ad. & El. 1008.
De Rutzen v. Lloyd, 5 A. & E 457.

• Marquis of Salisbury v. Gladstone, 7 W. R. 408.
5 Whitehouse v. Hemmant, 27 L. J. 295, Ex.

6 Payne v. Ibbotson, 27 L. J. 341, Ex.

1 Hemming v. Garson, 31 L. T. 176. Allum v. Boulbee, 23 L. J. 208, Ex.

92 Phill. 548. Sup. p. 19.

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