the Superior Courts of Law at Westminster, shall, in pursuance of the power hereinafter given to them, make any general rule or order dispensing with such allowance, either in all cases, or in any particular class or classes of cases to be defined in such rule or order; and such issue of fact may thereupon be tried and determined, and damages assessed, where necessary, in open court, either in term or vacation, by any judge who might otherwise have presided at the trial thereof by jury, either with or without the assistance of any other judge or judges of the same court or included in the same commission at the assizes; and the verdict of such judge or judges shall be of the same effect as the verdict of a jury, save that it shall not be questioned upon the ground of being against the weight of evidence; and the proceedings upon and after such trial, as to the power of the court or judge, the evidence and otherwise, shall be the same as in the case of trial by jury.

By this section it will appear that the procedure of the New County Courts is so far grafted on the Superior Courts as to enable the parties to an action to dispense with a jury by leave of a judge, whenever they think that a question of fact will be decided better by a full court or a single judge. It will probably be held that the trial by a court or body of judges will be granted only in the almost obsolete privilege of trial at bar: and that, practically, when the right is allowed and exercised, all Nisi Prius business will be conducted as before, with the exception that no jury will be summoned. It will also be observed that a trial by a single judge will be by no means a rule of course, but that two conditions precedent to the right will be required; first, the consent of parties; second, the consent of the court, which will probably require a reasonable ground to be set forth on affidavit to show the propriety of the judge undertaking the double function: for it is hardly to be supposed that the additional responsibility will be undertaken in cases such as in many descriptions of

torts, where the question is one of mere damages, and their amount best ascertainable by a jury.

But, subject to the exceptions which have been stated, the rule, as laid down by Buller, J., is strictly maintained. Thus it is for the judge to decide on the competency of witnesses; to examine them as to their religious belief, before they are admitted to be sworn or to affirm; and to admit or reject them according to his view of the sincerity or insincerity of their belief in a Supreme Being, who will punish them, either in this life or a future life, for perjury and falsehood.1 It is for the judge to determine whether a witness be sane or insane; whether dying declarations 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; and generally on all conditions precedent to the reception of evidence. But when the judge has once admitted evidence, his function, pro tanto, is complete. He has nothing whatever to do with the credibility of evidence: but that is a consideration which is solely for a jury, where there is one.

In summing up a case to a jury the judge will, in his discretion, comment, or decline to comment on the weight of evidence. It would appear that the latter course is his strict duty; and that he may be regarded as functus officio when he has laid the real issues, and the evidence that bears on them, before the jury, and stated the law that is applicable to them. But practically this rule is not observed inflexibly; and in many cases which consist in equal and inseparable parts of law and fact, it is found to be impossible to declare the former without revealing opinions as to the latter. But it is the custom, as it is the constitutional duty, of the most distinguished judges, to avoid, as far as possible, every remark that may bias the jury in their verdict.

1 Omichund v. Barker, Willes, 538; 1 Sm. L. C. 195; 17 & 18 Vict. c. 125, s. 89.

It often becomes an important and difficult question whether a point is properly matter for the decision of the judge or for that of the jury. The general rule is more indisputable in theory than it is easy in application. In R. v. The Dean of St. Asaph,' Lord Mansfield said:- "Where a question can be severed by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the court: where by the form of pleading, the two questions are blended together and cannot be separated upon the face of the record, there the distinction is preserved by the honesty of the jury. The Constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know and are not presumed to know the law: they are not sworn to decide the law: they are not required to decide the law. It is the duty of the judge in all cases of general justice to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their consciences." A comprehensive and elaborate treatment of this branch of the Law of Evidence is beyond the scope and limits of this work; but it will be found fully discussed in the third chapter of Mr. Taylor's admirable work. The leading heads of this obscure and unsatisfactory doctrine seem to be the following

II. The question of probable cause is for the judge, and the jury can find only the facts, and the inferences from facts, on which the theory of probability is founded.

In Mitchell v. Williams2 Alderson, B., said:- "The judge has a right to act upon all the uncontradicted facts

121 How. St. Tr. 1039, 1040.

2 11 M. & W. 217.

of the case; and it is not necessary specifically to leave every fact to the jury-to ask them, for instance, "Do you believe this?" "Do you believe that?" "Do you think that was so and so?" It is only where some doubt is attempted to be thrown upon the credibility of the witnesses, or where some contradiction occurs, or some inference is attempted to be drawn from some former fact, not distinctly sworn to, that the judge is called upon to submit any question to the jury." The same learned judge delivered a similar opinion in Hinton v. Heather.1

It has also been held that

III. Questions as to what is or is not a reasonable time for the performance of an act, are generally for the decision of the judge.

Thus the judges have exercised the right to decide whether notice of the dishonour of a bill has been given within a reasonable time according to the circumstances of the case; 2 what are reasonable hours for presenting a bill for payment at a banker's;3 for tendering rent; for delivering goods.5 A reasonable notice for a tenant to quit has been decided to mean a notice of six months; and in the case of a domestic servant, a calendar month.7

On the other hand :

6

IV. Reasonable skill, due diligence, and gross negligence, are questions for a jury.8

Whether a surgeon has treated his patient negli

1 14 M. & W. 134.

2 Stocker v. Collin, 7 M. & W. 515.

2 Parker v. Gordon, 7 East, 385; Elford v. Teed, 1 M. & S. 28. 4 Startup v. Macdonald, 6 M. & G. 593, S. C.

5 Ibid.

• Doe v. Spence, 6 East, 123. 7 Fawcett v. Cash, 5 B.& Ad. 908. 8 Tayl. 37.

1

gently: whether a gratuitous bailee has lost his deposit by gross negligence, are examples of this rule. Thus, in Doorman v. Jenkins,2 which was an action to recover money belonging to the plaintiffs which had been lost by the defendant while in his custody as a gratuitous bailee, it was held that it was rightly left by the judge to the jury to say, on the facts, whether the defendant had been guilty of gross negligence; and Taunton, J., said :-"A great deal has been said on the question whether gross negligence is a question of law or fact. Such a question will always depend on circumstances. There may be cases where the question of gross negligence is matter of law more than of fact; and others where it is matter 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 for 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."

V. Bona fides, actual knowledge, express malice or real intention, are questions for a jury.

3

4

In Harratt v. Wise the action was on a policy of

1 2 Ad. & E. 261.

2 Ibid.

3 Tayl. 38. 4 9 B. & C. 712.