was cut, that the court might see whether it was a reasonable time or not. But the court decided that the objection was untenable; for though in Co. Litt. 56 b. it is said that in some cases the court must judge whether a thing be reasonable or not, as in the case of a reasonable fine, a reasonable notice, or the like, it would be absurd to say that in a case like the present the court must judge of the reasonableness; for if so, it ought to have been stated in the plea not only how long the corn lay on the ground, but what weather it was during that time, and many other incidents which it would be ridiculous to insert in a plea. And the court was of opinion that the matter was sufficiently averred, and that the defendant might have traversed it if he had pleased, and then it would have come before a jury, who, upon hearing the evidence, would have been proper judges of it. In the case of Bell v. Wardell1, the defendant pleaded in justification, to a declaration in trespass, a custom for the inhabitants of a town to walk and ride over a close of arable land at all seasonable times: the plaintiff replied de injuriâ, and the defendant demurred. And the court held that seasonable time was partly a question of fact, and partly a question of law; and that as the custom was laid, if it were not a seasonable time, the justification was not within the custom; and that though the court may be the proper judges of this, yet, in many cases, it may be proper to join issue upon it, that is, in such cases where it does not sufficiently appear on the pleadings whether it were a seasonable time or not.

Before a precise and definite rule had been established on the subject, the question as to reasonable notice of the dishonour of a bill of exchange, the question was held to be one of fact for the consideration of the jury.

And the question whether a party has been guilty of laches in not presenting a bill payable at sight, or a certain time after, has been held to be a question for the jury where no established rule of law prevails; Fry v. Hill.2 So it has been held to be a question for the decision of a jury whether tithes have been removed within a reasonable time.

1 Willes, 202.

27 Taunt. 397.

2

Facey v. Hurdom. 1 The same has also been held as to the removal of a distress; Pitt v. Shew. And although the question whether a particular covenant was an usual covenant in a lease might at first view seem to be of a legal character, yet it has been held to be one proper for the determination of a jury. Doe v. Sandham. 3

Upon inquiries concerning homicide, where the question arises whether the party charged used due and reasonable care to prevent mischief, it is ordinarily one for the decision. of the jury. 4 Thus it was left by Mr. Justice Foster as a

question for the jury to say whether the prisoner on such a charge had not reasonable grounds for believing that a gun which went off accidentally in his hands was not loaded. In the case of death from the administration of a violent drug, without any intention to injure, it is a question for the jury whether the prisoner was guilty of gross negligence.

There are numerous decisions and dicta to the effect that reasonable time may be a question of law, and that it is a question of law in all cases where any such rule has been laid down, and perhaps also in all cases where a rule warranted in legal principle can be laid down. The former general position is so notorious, that the instances require no particular attention; it being clear in principle, as has already been observed, that expressions of known popular meaning used in the definition of a right or liability must primâ facie be understood in that sense, and that whenever that meaning is controlled by a legal rule, which either alters or limits the sense, or renders the case an absolute and peremptory exception to the general elementary rule, defining the provinces of the court and jury, the technical rule must prevail.

Questions as to reasonable fines, customs, and services have frequently been held to be for the decision of the court. 5 Quam longum (tempus) esse debet non definitur in jure, sed pendet ex discretione justiciariorum :" and this being

66

1 3 B. & C. 213., and see the observations of Bayley and Littledale Js. in that

case.

2 4 B. & A. 206.

3 1 T. R. 705., and per cur. K. B. Hil. Term, 1828.

4 See Fost. 264, 265.

5 Co. Litt. 56. b. 4 Co. 27. Litt. s. 69.

said of time, the like, says Lord Coke, may be said of things uncertain, which ought to be reasonable; for nothing that is contrary to reason is consonant to law.1 A reasonable time for countermanding a writ was held to be a question of law.2

of

In many instances where no doubt could exist upon the question of reasonable time, whether it were to be referred to one tribunal or another, the courts have, of their own authority, decided the question, there being, in truth, no such doubt as would justify the trouble and expense of a trial by the country, and the merits being so clearly in favour of the determination one way that a finding by a jury on the other would have seemed to be extravagant. Power having been given to the lessor's son to take a house to himself on coming age, it was held that he was bound to make his election within a reasonable time; that a week or a fortnight was reasonable; a year unreasonable; Doe v. Smith. The court held, on demurrer to a plea justifying an imprisonment on a suspicion of felony, that the detention of the prisoner for three days to give the prosecutor an opportunity for collecting witnesses was an unreasonable time; Wright v. Court. It was held by the court that six days was a reasonable time for removing the goods of a lessor by his executors after his death; Stodden v. Harvey. A lapse of five days after intelligence of the loss, and before notice of abandonment was given, was held by the court to be too long; Hunt v. Royal Exchange Assurance Company.6

3

The terms negligence and gross negligence are terms of popular import, and involve conclusions drawn from conduct and circumstances which ordinarily are mere conclusions in fact, being independent of the application of any rule of law. The question of negligence is therefore usually one of fact for the jury; but the question may be one of law, and is so where the case falls within any settled rule or principle of law; and where no such rule or principle is applicable, the conclusion seems to be one of mere fact. A medical practitioner is bound to exercise a reasonable and competent degree of art and skill; and in an action against such a person by a patient in respect of damage from improper treatment,

1 Co. Litt. 56. b. 4 4 B. & C. 596.

2 1 B. & P. 388.
5 Cro. J. 204.

3 2 T. R. 436.

65 M. & S. 47.

it is a question for the jury whether the injury is attributable to the want of that degree of skill; Lanphier v. Phipos.1 In an action against an attorney for negligence in the conduct of a cause, it is a question for the jury whether the defendant has used reasonable care. This question was so left to the jury by Abbott Lord C. J. in the case of Reece v. Righy. This, it is observable, is a strong instance manifesting the extent to which such questions are to be regarded as questions of fact: a question as to the conduct of a cause by a legal practitioner might, at first sight, seem to be rather a matter of legal consideration than a question for "lay gens." Where the master of a vessel filled the boiler of a steamengine with water at night in winter, and a frost ensuing the water was frozen, and a pipe burst, and water in consequence escaped and did damage, it was held that the jury were warranted in finding that the loss was occasioned by the negligence of the master, and not by the act of God; Siordet v. Hall.3

In an action by a merchant against his agent for negligence in not insuring goods, Lord Mansfield directed the jury generally that if they thought there was gross negligence, or that the defendant had acted malâ fide, they should find for the plaintiff, otherwise for the defendant; Moore v. Mourgue. But conclusions of this description, like all other general conclusions, may be governed by rules and principles so far as they extend. If mice eat the cargo, and thereby occasion no small damage to the merchant, the master must make good the loss, because he is guilty of a fault; yet if he had cats on board he shall be excused. Wherever any promise, duty, or course of conduct, whether express or implied, is prescribed by law, the mere omission to perform it must, in point of law, amount to negligence without any conclusion of negligence in fact.

Whether particular acts or conduct occasion nuisance or hurt to another is also an ordinary conclusion of fact, in

1 8 C. & P. 475.

3 4 Bing. 607.

5 Roccus, 58.

Abbott on Shipping, 241. the author), although bearing somewhat of a tration of the general principle.

2 4 B. & A. 202.
4 Cowp. 479.

The rule and exception (observes ludicrous air, furnish a good illus

dependently of any law which gives a remedy for, or punishes the author of, such nuisance or hurt. And in this popular sense these terms are usually to be understood when essential by definition or otherwise to a legal claim or liability without any legal restraint or limitation. But if a new market be erected near to, that is, within twenty miles of, a pre-existing legal market, and be held on the same day, the conclusion that the former is to the nuisance of the latter has been deemed to be a mere conclusion or inference of law. But it may be within that limit, and yet not necessarily a nuisance; "et poterit esse vicinum et infra prædictos terminos et non injuriosum.” 1 It is in such a case a question of fact for the jury whether the new market be to the nuisance or detriment of the owner of the pre-existing market or not, according to the ordinary and popular meaning of the term nuisance or hurt. But if the new market were erected beyond the limit of twenty miles, the law would not infer that it was a nuisance, although held on the same day.

Malice, in the ordinary popular sense of the term, means simply an evil disposition of mind to cause misery, hurt, or suffering. The law, however, distinguishes between malice in law and malice in fact. The former terms import a legal inference, but it is one which is made by the law wherever a hurt or damage is wilfully done without any lawful authority or excuse. It is founded, therefore, on that which is ordinarily mere matter of fact, the wilful doing of a hurtful act which is prohibited to be done except where the law sanctions the doing. The adjudication, therefore, that any act is maliciously done in a legal sense, involves the conclusion that the law does not sanction the act. It frequently, however, happens that the law does not prohibit the doing of an act altogether, although its tendency may be to cause hurt or annoyance, but only sub modo; as where it is not done bonâ fide, but, on the contrary, with the disposition to occasion hurt, pain, or suffering, that is, where it is done of malice in fact or malice in the ordinary popular sense of the term. Thus the law prohibits the malicious publishing of a writing hurtful to the character of another person: if such a writing

1 Fl. b. 4. ch. 28. s. 13., Com. Dig. Market, C. 3.