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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. But it was also found that it had not reached him when he arrived there. A verdict was found for the plaintiff, and a rule for 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:
"If the possibility, or even probability of actual knowledge should be considered as legal proof of the fact of actual knowledge, as a presumptio juris et de jure, the presumption might in some cases be contrary to the fact, and such a rule might work injustice.
Knowledge, like other matter, must become a question of fact for the decision of a jury." So in libel and all felonies it is for the jury to pronounce on the animus or malice of the act.
VI. 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.
This rule is laid down by Mr. Taylor1 nearly in the above terms, but is not supported by the sole authority which he cites-Coxhead v. Richards.2 In that case this subtle principle was much discussed, and the court equally divided in opinion. In Blackham v. Pugh,3 and in Bennett v. Deacon, the same point arose, and nearly the same difference of opinion prevailed.5 The weight of authority would seem to be in the affirmative,
1 Tayl. 39.
2 2 C. B. 569. 3 Ibid. 611.
4 Ibid. 628.
but the doctrine can hardly be regarded as fixed. A better authority for this rule is found in Toogood v. Spyring.1
It may be stated broadly, but subject to limitations, that
VII. 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 scientific intention, there it is 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.2
An illustration of the second branch of this rule is found in the maxim, that—
VIII. 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; and the jury is bound to follow his construction. In Hutchinson v. Bowker,3 Parke, B. said:—
11 C. M. & R. 181. Judgment of Parke, B. 2 Harrison v. Fane, 1 M. & Gr. 553.
3 5 M. & W. 535.
"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.1
But 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.2 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. But if the jury find against the defendant, the court will arrest judgment, if the writing, on the face of it, appear not to be libellous.3
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.4
1 See Tayl. 42.
2 R. v. Girdwood, 2 East P. C. 1120. 3 Hearne v. Stowell, 12 A. & E. 719; Goldstein v. Foss, 6 B. & C. 154 Tayl. 46; R. v. Picton, 30 How. St. Tr. 536 to 540, 864 to 870.
ON BILLS OF EXCEPTIONS AND DEMURRERS TO EVIDENCE-ON THE COMPETENCY OF WITNESSES.
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.
This 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."
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.1 "Whether a bill lies or not in any criminal case is a point not settled."2 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, ven with the consent of the Attorney-General.3
The exception must be taken at the trial, and before verdict. It must state the alleged misdirection; and be tendered to the judge, who will seal it. After it is
1 1 Lev. 68.
2 Per Lord Hardwicke, R. v. Preston, Rep. temp. Hard. 251. Wright v. Sharpe, 1 Salk. 288.
23 L. J. 240, Ex.
sealed it may be amended. If the court above be of opinion that the evidence was improperly received, they will grant a new trial.2
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 admitted, and the issue reduced to one of law. But as the same object can be obtained by taking a special verdict, or a verdict subject to a special case, and as these are more customary expedients, we need not enlarge here on a topic which belongs more strictly to treatises on the practice of courts.
We are now to consider the competency of witnesses. It may be considered to be the general and established principle of evidence, that—
IX. Objections may be taken to the credibility, but not to the competency, of witnesses.
This rule is subject to some exceptions which will be discussed subsequently.
Formerly, a witness might be objected to on many grounds, as being a party interested in the result of a case. But this principle was abolished by the 6 & 7 Vict. c. 85, usually called Lord Denman's Act. This statute recites that
"The inquiry after truth in courts of justice is often obstructed by incapacities created by the present law; and it is desirable that full information as to the facts in issue, both in criminal and civil cases should be laid before the persons who are to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced for the truth of testimony."
It then enacts that
"No person offered as a witness shall hereafter be excluded by reason of incapacity, from crime or interest, from giving evidence, either in person or by deposition, according to the practice of the court on the trial of any issue joined, or of any matter or question, or on any
1 Cully v. Doe d. Taylerson, 11 Ad. & El. 1008.
De Rutzen v. Lloyd, 5 A. & E. 457.