38

BONA FIDES-KNOWLEDGE-MALICE.

entitle the plaintiff to a verdict? In these and the like cases, therefore, the question has usually been left entirely to the jury, and even when they have found a verdict in opposition to the opinion of the presiding judge, the court has generally refused to grant a new trial (m). In some cases, where the question relates to matters of legal practice, as, for instance, if a sheriff be charged with neglect of duty in not executing a writ, or if an attorney be sued for negligence in conducting an action, the judges would seem to be more competent than a jury to decide whether the facts proved amount to a want of reasonable care; and perhaps, in such cases, the question would be for them (n), though on more than one occasion, such questions have been treated as questions of fact, and have been left for the determination of the jury (0).

§ 31. The proper tribunal for deciding questions of bona fides (p), actual knowledge (q), express malice (r), or real intention (s), is the

(m) Id. 260—266, per Cur., commenting on, and explaining, Shiells v. Blackburne, 1 H. Bl. 158; Moore v. Mourgue, 2 Cowp. 479.

66

(n) 2 A. & E. 260, 261, per Taunton, J. See Godefroy v. Dalton, 6 Bing. 460, where the judges decided that an attorney had not been guilty of such negligence as would render him liable to an action. "The cases," said Tindal, C.J., in pronouncing the judgment of the court, appear to establish in general, that the attorney is liable for the consequences of ignorance or non-observance of the rules of practice of this court; for the want of care in the preparation of the cause for trial; or of attendance thereon with his witnesses; and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst, on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or of such as are usually intrusted to men in a higher branch of the profession of the law." P. 468.

(0) Reece v. Rigby, 4 B. & A. 202, per Abbott, C. J.; Shilcock v. Passman, 7 C. & P. 292, 293, per Alderson, B.

(p) Wedge v. Berkeley, 6 A. & E. 663; 1 N. & P. 665, S.C.; Moore v. Mourgue, 2 Cowp. 480; Gray v. Dinnen, 2 Jebb & Sy. 265; Coxhead v. Richards, 2 Com. B. 584, per Cresswell, J.; Hazeldine v. Grove, 3 Q. B. 1007; Hughes v. Buckland, 15 M. & W. 346. See ante, § 26.

(2) Harratt v. Wise, 9 B. & C. 712.

(r) As in actions for malicious prosecution or arrest. Mitchell v. Jenkins, 5 B. & Ad. 588; 1 Camp. 207, n. a.

(s) Doe v. Wilson, 11 East, 56: Powis v. Smith, 5 B. & A. 850; Doe v. Batten, 1 Cowp. 243; Zouch . Willingale, 1 H. Bl. 312, per Gould and Wilson, Js.

MALICE-INTENTION-PRIVILEGED COMMUNICATIONS.

39

jury; but we shall presently see, in the chapter on Presumptive Evidence, and in other parts of this work, that the law will sometimes presume the existence of fraud, knowledge, malice, and intention, from the proof of other remote acts, and, whenever these presumptions are embodied in rules of law, the Court will either draw the inference without the aid of a jury, or the jury will be bound to follow the directions of the judge. Moreover, for particular purposes, the decision of these questions is sometimes intrusted to the judge by the express language of the Legislature. Thus, sect. 2 of the Act of 3 & 4 Vict., c. 24, enacts, that if the plaintiff in an action of trespass or on the case, shall recover less damage than forty shillings, he shall not be entitled to costs, unless the judge, or presiding officer (which last words include an arbitrator, when the case is referred at Nisi Prius) (t), shall, immediately after the verdict (u), certify on the back of the record, or of the writ of trial or writ of inquiry, that the action was brought to try a right, or that the trespass or grievance was wilful and malicious (v). So, under the stat. 8 & 9 Will. 3, c. 11, § 1, if several persons be sued in trespass, and one or more of them be acquitted by verdict, the judge, by certifying upon the record immediately after the trial, in open court, that there was reasonable cause for making the parties acquitted defendants, may deprive them of costs (w).

§ 32. When a question arises as to whether a communication was privileged or not, the respective duties of the judge and jury seem to be as follows: first, the jury must determine as a question of fact, whether the communication was made bond fide; and then, if the fact be found in the affirmative, the judge must decide, as a

(t) Spain v. Cadell, 8 M. & W. 129.

(u) See Thompson v. Gibson, 8 M. & W. 281; Shuttleworth v. Cocker, 1 M. & Gr. 829; 2 Scott, N. R. 47; and 9 Dowl. 76, S.C.; Page v. Pearce, 8 M. & W. 677.

(v) See Foster v. Pointer, 8 M. & W. 395; Sherwin v. Swindall, 12 M. & W. 783.

(w) See Spener v. Harrison, 2 C. & Kir. 432. See also Townsend v. Syms, id. 381, as to a certificate, under 43 Eliz. c. 6, § 2, to deprive a plaintiff of costs, where less than 40s, are recovered in an action on promises. See also 8 & 9 Vict. c. 93, ss. 81, 83.

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SEAWORTHINESS-NECESSARIES.

question of law, whether the occasion of the publication was such as to rebut the inference of malice (w).

§ 33. It seems that questions respecting permissive occupation (x); the assent of an executor to a bequest (y); the unsoundness of a horse (z); the seaworthiness of a ship (a); or the materiality of facts not communicated in effecting an insurance (b), are for the jury, though the judge ought to take care that they are not misled by anything that comes out in the evidence (c). So, it is the undoubted privilege of the jury to determine, whether there has been an acceptance of goods sufficient to satisfy the Statute of Frauds (d). So, the jury must decide whether articles supplied to an infant be necessaries; but their decision is subject to the control of the Court (e) who have laid down, as general rules of law, first, that this question does not, in any degree, depend upon what allowance the infant may have received from his father, and may have misapplied (f); secondly, that the articles must be really useful, and therefore that merely ornamental jewellery (g), or luxurious confectionery (h), are not necessaries; and thirdly, that,

(w) Coxhead v. Richards, 2 Com. B. 584, 603, per Cresswell, J.; 600, per Coltman, J.

(x) Lessee of Phayre v. Fahy, Hayes & Jon. 128; Jones v. Boland, 2 Jebb & Sy. 289; but see Whiteacre v. Symonds, 10 East, 13.

(y) Mason v. Farnell, 12 M. & W. 674, even though "the question depends upon the careful and somewhat critical comparison of the terms of a deed, with the other circumstances and facts of the case," per Alderson, B., id. 682, pronouncing the judgment of the court.

(*) See per Patteson, J., in Baylis v. Lawrence, 11 A. & E. 926.

(a) Clifford v. Hunter, 3 C. & P. 16, per Lord Tenterden; M. & M. 103, S.C.

(b) Rawlins v. Desborough, 2 M. & Rob. 328, per Lord Denman.

(c) Per Lord Abinger in Mackintosh v. Marshall, 11 M & W. 126.

(d) Lillywhite v. Devereux, 15 M. & W. 291, per Alderson B., recognising Edan v. Dudfield, 1 Q. B. 302, 307; 4 P. & D. 656, S.C.

(e) Harrison v. Fane, 1 M. & Gr. 553, per Tindal, C. J.

(f) Burghart v. Hall, 4 M. & W. 727; Peters v. Fleming, 6 M. & W. 46.

(g) Peters v. Fleming, 6 M. & W. 47, 48, per Parke & Alderson, Bs. In that case it was held to be properly left to the jury, whether a watch and gold chain were necessaries for an undergraduate. The jury found that they were necessaries.

(h) Brooker v. Scott, 11 M. & W. 67; Wharton v. Mackenzie, and Cripps v. Hills, 1 D. & Mer. 544; 5 Q. B. 606, S.C.

CONSTRUCTION OF DOCUMENTS.

41

if useful, they must be such as would be necessary and suitable to the degree and station in life of the infant (i). In a late case, where the jury, in opposition to the opinion of the judge, found that the hiring of horses and gigs was necessary for an Oxford undergraduate, he being the younger son of a man of fortune, and keeping a horse of his own, the Court set aside the verdict as perverse, and granted a new trial (j). Perhaps the safest rule that can be laid down on this subject, is, that the judge must determine whether the articles are capable of being necessaries, regard being had to the position of the defendant; and if he should decide in the affirmative, the jury will then have to say, whether under the circumstances they were necessaries or not (k).

§ 34. It has been recently laid down as a general rule of law, that "the construction of all written documents," which term it is presumed would necessarily include Acts of Parliament, judicial records, deeds, wills, agreements or letters, belongs to the Court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the Court, either absolutely, if there be no words to be construed as words of art or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law; for a misconstruction by the Court is the proper subject, by means of a bill of exceptions, of redress in a court of error; but a misconstruction by the jury cannot in any way be

(i) Peters v. Fleming, 6 M. & W. 42.

(j) Harrison v. Fane, 1 M. & Gr. 550.

(k) Wharton v. Mackenzie, and Cripps v. Hills, 5 Q. B. 606; 1 D. & Mer. 544, S. C.; in which cases, juries having decided that wine parties and suppers were necessaries for Oxford undergraduates, the Court of Queen's Bench granted new trials. In Chapple v. Cooper, 13 M. & W. 252, the Court held that the funeral of a husband, who had left no property to be administered, might be regarded as "necessaries," supplied to his infant widow.

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CONSTRUCTION OF DOCUMENTS.

effectually set right (). Thus the Court will construe the specification of a patent, though the interpretation of such an instrument, relating as it does to matters of science and skill, would seem peculiarly adapted to the practical information of jurors (m); and where a contract for the sale of barley was attempted to be proved by letters, one of which offered good barley, and the other accepted the offer, "expecting you will give us fine barley and good weight," 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 that there was 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 (n). So, it seems clear, notwithstanding one or two authorities to the contrary (0), that the Court must determine, whether a written acknowledgment of a debt (p), or of title (9), is sufficient to take the case out of the statutes of limitation; though, perhaps, in a doubtful case, it may be a prudent course for the judge to express his own opinion, and also to take the opinion of the jury (r); and if the document is connected with other evidence affecting its construction, then the whole must be submitted to the jury

(7) Per Parke, B., pronouncing the judgment of the Court, in Neilson v. Harford, 8 M. & W. 823.

(m) Neilson v. Harford, 8 M. & W. 806, 818, 819; 2 Webst. Pat. R. 295, 328, S. C. This case virtually overrules Hill v. Thompson, 3 Mer. 630, where Lord Eldon observed, that the intelligibility of the description of a specification was a matter of fact.

(n) Hutchison v. Bowker, 5 M. & W. 535. Parke, B., there observed, "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. P. 542. See also Bourne v. Gatliffe, 3 M. & Gr. 643, 689, 690; 3 Scott, N. R. 1, S. C.

(0) Lloyd v. Maund, 2 T. R. 760; Linsell v. Bonsor, 2 Bing. N. C. 241.

(p) Morrell v. Frith, 3 M. & W. 402; Routledge v. Ramsay, 8 A. & E. 222, per Lord Denman.

(9) Doe v. Edmonds, 6 M. & W. 302, per Parke, B.

(r) Bucket v. Church, 9 C. & P. 211, per Parke, B.; Morrell v. Frith, 3 M. & W. 406, per id.