justice. Our present inquiry will be confined to a subject on which a conflict of opinion has been manifested, and which has given birth to numerous decisions- the distinction between matter of law and matter of fact.

The well-known elementary rule, "ad quæstionem juris respondent judices, ad quæstionem facti respondent juratores,” very clearly defines the provinces of the court and of the jury. Be questions of law and fact ever so intimately connected by legal definition or allegation, although the terms of the issue to be tried involve both, yet, upon the trial, the distinction is usually made without confusion or difficulty, the power and duty of the jury being directed and confined wholly to the question of fact, and their decisions being expressed either simply by means of a special verdict, to which the court afterwards applies the law in giving judgment, or being embodied in a general verdict, in which case, although such verdict comprise matter of law as well as matter of fact, as where they find a defendant guilty of a conversion, or a criminal guilty of theft, their office is still confined merely to the facts. For, in delivering a verdict which contains matter of law, they act only according to the direction of the court, that the facts, if proved, constitute a conversion in law in the one case, or a larceny in the other. So far the application of the general rule is plain and clear; nor could it well be otherwise, so long as the functions of a jury were confined simply to the finding of mere facts, as distinguished from such conclusions as will presently be noticed. Doubts which arise whether a particular question be one of law or fact, as contradistinguished from each other, seem to concern only such general conclusions from facts as are essential to a conclusion in law, but which do not themselves depend upon the application of any rule of law.

It will be proper to premise a few remarks on the origin of such questions.

The administration of the law consists in annexing defined legal consequences to defined facts. The facts so defined must be expressed in terms of known popular meaning, or be capable of translation into such terms by virtue of legal interpretation. If technical expressions were not so convertible into ordinary language, they could not be explained

to a jury so as to enable them to apply those expressions, and embody them in a general verdict; nor could the court, a special verdict being found by a jury, detailing facts, in ordinary popular terms, determine their legal quality. But where facts are numerous, various, and complicated, the law cannot be defined by an enumeration of particular and minute facts or circumstances, but yet may be capable of sufficient definition by means of conclusions drawn from facts, however complicated such facts may be. Thus, the right may be made to depend on the question or conclusion whether an act has been done in reasonable time, whether due and reasonable caution has been used, or due and reasonable diligence exerted; for such questions or conclusions, although not the subject of testimony by eye or ear-witnesses, are capable of ascertainment, in a popular sense, by the aid of experience and knowledge of the ordinary course of human affairs.

The consideration then presents itself, how these questions stand in relation to the general elementary rule concerning questions of law and questions of fact: whether all such conclusions are to be referred either to the judge or to the jury; and, if not exclusively to either, how the distinction is to be determined.

Such questions seem properly to be questions or conclusions in fact; they are conclusions or judgments concerning mere facts, founded by the aid of sound discretion upon experience and knowledge of facts, that is of the ordinary affairs of life, and of what is usual or probable in the course of those affairs. Such conclusions are formed, and the relations which they determine exist independently and without the aid or application of any rule of law. What is reasonable or unreasonable, usual or unusual, diligent or negligent, probable or improbable, is the same, be the legal consequences. annexed what they may; such consequences may be altered at the will of the legislature, whilst those conclusions and relations remain unchangeable. A conclusion or judgment in law always involves the application of some rule of law, that is, the annexation of some legal artificial consequence to an ascertained state of facts; but those now under consideration are wholly independent of any legal rule or defi

nition; the very absence of any such rule or definition constitutes the necessity for resorting to them: for when the law defines what is reasonable, diligent, or probable, the conclusion by any other rule, or according to any other mode of judging, is immaterial. In the absence of any such rule, the conclusion, so far from being founded on any legal rule or judgment, is one of the foundations on which the legal conclusion is constructed.

When, therefore, conclusions concerning facts, but which are essential to a legal judgment, are expressed in popular terms the sense of which is not controlled or restricted by any legal rule or authority, they must, it seems, be regarded as conclusions in fact. And when such terms are used, but are to a limited and partial extent restricted by technical rules, they must of course, to the extent to which they so are limited, be questions of law, but beyond those limits must still be understood in their natural and ordinary sense as conclusions in fact. And therefore, when a doubt arises in any such case, whether the question or conclusion be one of fact or in law, the real question seems to be, whether there exists any rule or principle of law which controls or limits the plain and natural import of the terms, and so converts what is apparently a question of fact for the the jury into a question of law to be governed by the technical rule. It may not, perhaps, be deemed irrelevant in this place to observe that the same reason does not exist for abstracting matters of fact from the decision of the judge which applies to the excluding a jury from the decision of matters of law; the latter rule is properly founded on the presumed incapacity of jurors so to decide. Judges, on the contrary, are qualified in an eminent degree to decide on matters of fact, in consequence of their knowledge and experience in ordinary affairs necessarily arising from forensic habits and long practice. At present, however, the question is, not whether the general elementary rule be founded in consummate wisdom, but as to the proper application of the rule consistently with its principle.

But however desirable it might possibly be to refer to the judge, and not to the jury, those conclusions which seem to us to be mere conclusions in fact, the advantage cannot

be attained to, but at the price of violating the general elementary rule.

It is now proposed to notice a few of the numerous instances in which questions have arisen relating to the application of the elementary rule, and briefly to examine to what extent the positions above advanced are consistent with the applications of that rule.

The branch of the rule which confines the decision of matters of law to the judgment of the court seems to have been inflexibly applied.

The construction of all acts of parliament, of all written instruments which possess any artificial or legal force or authority, and which do not operate simply as mere evidence tending to the proof of a fact, belongs undoubtedly to the

court.

The inspection of all records, and of all matters determinable by such inspection, is also a matter peculiar to the decision of the court. It falls also within the province of the court to decide, in all litigated cases, whether the particular facts alleged in order to establish a claim or charge, are sufficient to satisfy the general terms or requisites of the law on which right or liability depends. So it is for the court in all cases to decide on questions of variance, and to determine whether the facts which are proved, or which the evidence tends to prove, satisfy the averments on the record, and which are put in issue by the pleadings.

So it is a well-established rule that questions occurring collaterally in the course of a trial are determinable by the court, although they involve questions of fact. For, as has already been intimated, even an encroachment on the clementary rule, in referring matter of fact to the decision of the court when it is essential to a decision in fact, is not so much open to objection as an enlargement of the functions of the jury in referring any question of law to them would be; the ordinary exclusion of the former being founded principally on considerations of legal œconomy and convenience, not on incapacity. Thus all questions as to the competency of witnesses, the reception of secondary evidence of the contents of a written instrument on proof of the loss of the original, of evidence of a declaration made by a party in extremis, are to be'

decided by the court, and not by the jury. The last of these instances involves the consideration of a simple fact of a nature peculiarly fit for the consideration of a jury — the belief of the declarant that his dissolution was impending. This, however, and such other facts as are usually for the decision of the courts in order to warrant their interlocutory judgments, are usually so simple as regards proof, and in their own nature so little subject to conflict, that they form no material exceptions to the general rule.

The numerous decisions upon the question of reasonable time accord mainly with the general elementary rule, and with the positions above advanced: in the absence of any special rule applicable to particular cases, the conclusion is one of mere fact to be made by a jury. The law cannot prescribe in general what shall be a reasonable time by any defined combination of facts: so much must the question depend upon the situation of the parties, and the minute circumstances peculiar to individual cases, which, from their multitude and variety, are incapable of such a selection as is essential to a precise and particular law. If a man has a right by contract to cut and take crops from the land of another, it is obvious that the law can lay down no rule as to the precise time when they shall be cut and removed: all that can be done is to direct or imply that this is to be done in a reasonable and convenient time; and this must necessarily depend on the state of the weather and other circumstances, which cannot, from their nature and multiplicity, form the basis of any legal rule or definition. The question as to reasonable time was much considered in the case of Eaton v. Southby. The plaintiff in replevin pleaded to an avowry, justifying the taking of goods as a distress for rent in arrear, that he took the growing crops under an execution, and afterwards cut the wheat, and let the same lie on the premises until the same, in a course of husbandry, was fit to be carried away; and that the defendant distrained the same before it was fit to be carried away. It was objected by the defendant, on demurrer to this plea, that the plaintiff ought to have set forth how long the corn lay on the land after it

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1 Willes, 131.