it is a question for the jury (m). In patent cases it is for the judge to construe the specification after the jury have ascertained the meaning of the technical terms (if any) (n). Novelty and infringement, when they depend merely on the construction of the specification, are, of course, questions for the judge, but they are generally mixed questions of law and fact (o). The question, libel or no libel, is, since Fox's Act (32 Geo. III. c. 60), for the jury, subject to the direction of the judge in criminal cases: and it was formerly held that the practice in civil cases should be the same as in criminal cases (p). A judge, however, can and ought to withdraw the case. from the jury when the words are in his opinion not reasonably capable of defamatory meaning (2), although it is only when the judge is satisfied that the publication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance (r). But where the plaintiff's complaint was of a circular published by the defendants, to which the plaintiffs, by innuendo, attached a particular meaning, namely, that it imputed to (m) Routledge v. Ramsay, 6 A. & E. 231. (n) Neilson v. Harford, 1 Web. Pat. Cas. 370. (6) Delarue v. Dickenson, 7 E. & B. 738; Seed v. Higgins, 8 H. L. Cas. 550. (p) Baylis v. Lawrence, 11 A. & E. 920. (2) Hunt v. Goodlake, 43 L. J., C. P. 54. () Per Kelly, C. B., Cox v. Lee, L. R., 4 Ex. 288; 38 L. J., Ex. 221. them insolvency in their business, but at the trial gave no evidence in support of such innuendo, it was held by the House of Lords that the case might be dealt with as if there was no innuendo, and that there was no case to go to a jury (s). In Thomas v. Williams (t), where the plaintiff sought an injunction from a judge of the Chancery Division to restrain the publication of a libel injurious to his trade, it was objected by the defendants that, since Fox's Act, no relief could be given by any court upon a libel unless the libel had been in the first place submitted to the decision of a jury. But the judge, Fry, J., granted the injunction, and said that the objection was untenable, that Fox's Act has nothing to do with civil actions based on libel, and that under the Judicature Act an action for libel can be tried in the same way as any other action. 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 (u), or what meaning and construction would render the publication of the words complained of libellous per se (x); and the substantial truth of an alleged libel will also be for the jury (y); as well as the questions whether the alleged libel goes beyond the limits of fair criti (8) Capital and Counties Bank v. Henty, L. R., 7 App. Cas. 741; 52 L. J., Q. B. 232; 31 W. R. 157. (t) L. R., 14 Ch. Div. 864; 49 L. J., Ch. 605; 28 W. R. 983. (u) Barnett v. Allen, 3 H. & N. 376. (z) Stannus v. Finlay, Ir. R., 8 C. L. 264. (y) Alexander v. North Eastern Railway Co., 6 B. & S. 340. eism (s), and whether a report of legal proceedings is a fair one (a). The court has also directed juries, that the words "as soon as possible," in a contract, mean without unreasonable delay according to the circumstances (b) ; that "forthwith" has a similar meaning (c); but the signification of words, according to the custom of particular trades, such as "bales," is for a jury (d); and where on a sale of goods the invoice provided that they should be paid for "in from six to eight weeks," this was held to be a phrase for the jury to interpret (e). 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 (f). But when secondary oral evidence of writings is admitted it has been decided that the judge and not the jury construes the evidence, because the issue is substantially one on the construc (z) Jenner v. A' Beckett, L. R., 7 Q. B. 11; 41 L. J., Q. B. 14; 20 W. R. 181. (a) Street v. Licensed Victuallers' Society, 22 W. R. 553. (b) Attwood v. Emery, 1 C. B., N. S. 110; Hydraulic Engineering Co. v. McHaffie, L. R., 4 Q. B. D. 670; 27 W. R. 221. (e) Roberts v. Brett, 6 C. B., N. S. 611. (d) Gorrissen v. Perrin, 2 C. B., N. S. 631. (e) Ashworth v. Retford, L. R., 9 C. P. 20; 43 L. J., C. P. 57. (f) Furness v. Meek, 27 L. J., Ex. 34. tion of a writing (g). 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 (h). In cases of indictable tort, where guilt or innocence is to be inferred from the contents and meaning of a writing, the construction is for the jury. Thus, on an indictment for writing a menacing letter, the jury will say whether the language amounts to a menace (i). Finally, it is for the jury to determine the meaning of foreign law on the testimony of skilled witnesses; but for the court to decide on the competency of such witnesses, and the applicability of the foreign law to the matter in issue (k). (g) Berwick v. Horsfall, 4 C. B., N. S. 450. (i) R. v. Girdwood, 2 East, P. C. 1120. (k) R. v. Picton, 30 How. St. Tr. 536-540, 864-870. CHAPTER III. THE COMPETENCY OF WITNESSES-THE COMPETENCY IN OF PARTIES TO CIVIL PROCEEDINGS-THE It has already been stated (a) that all objections to the competency of witnesses are for the decision of the judge, who will, if there appear to be any doubt on the subject, examine into the competency or incompetency of the proposed witness before allowing him to be sworn. This preliminary examination is called the examination on the roir dire, i. e., vrai dire, and witnesses may be called for the purposes thereof, to establish the competency or incompetency of the person tendered as a witness. Under this head it may be considered to be the general and established principle of evidence, that All persons of sound and adult mind, provided they take an oath, or make a solemn affirmation to speak the truth (a) Supra, p. 12. |