on summons, shall, in their or his discretion, think fit to allow such trial; or, provided the judges of 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.

But, subject to the exceptions which have been stated, the rule, as laid down, is strictly maintained. Thus it is for the judge to explain the law to a jury; and the jury is bound to take the law to be that which the judge tells them that it is. It is for the judge to tell them how the law is applicable to the

issues of fact, and to distinguish for them questions of law from those of fact; 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 (k). It is for the judge to determine whether a witness be sane or insane; whether dying declarations, in cases of homicide, 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 (1); whether a document come from proper custody, or is properly stamped; and generally on all conditions precedent to the reception of evidence. But when the judge has once admitted evidence, his function is complete (m): though if, after admitting a witness to give evidence, he is convinced by proof of subsequent facts, and by observation of the witness's demeanour, that the latter is not competent, he may withdraw such evidence from the jury (n). He has nothing whatever to do with the credibility of evidence, which is a consideration solely for the jury.

It is also the duty of the judge to instruct the jury in the rules of law, by which evidence in particular cases has to be weighed (o). But in summing up a

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

(1) Boyle v. Wiseman, 10 Ex. 647.

(m) Heslop v. Chapman, 12 Q. B. 928.

(n) R. v. Whitehead, 35 L. J. M. C. 187; L. R. 1 C. C. R.

(0) See p. 24.

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, with the evidence that bears on them, before the jury, and stated the rules of law applicable to the evidence, and the general principles applicable to the case. 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. Thus in cases of libel it is the duty of a judge to define the law of libel to a jury, and to tell them generally what kind of written statements when published amount to a libel; but not to deliver his own opinion on the case (p).

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 (q), 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

(p) See Lord Campbell's Life of Lord Kenyon, pp. 51, 52. (g) 21 How. St. Tr. 1039, 1040.

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." The leading heads of this obscure and unsatisfactory doctrine seem to be the following:

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.

Thus in an action for false imprisonment the judge is to say whether the facts afford reasonable and probable cause for arresting (r); and in an action for malicious prosecution, what circumstances show that the defendant was actuated by malice or not (s).

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 cir

(r) West v. Barendale, 9 C. B. 141.

(s) Heslop v. Chapman, 12 Q. B. 928; cf. Mitchell v. Williams, 11 M. & W. 205.

cumstances of the case (t), what are reasonable hours for presenting a bill for payment at a banker's (u); for tendering rent (x); for delivering goods (y). A reasonable notice for a yearly tenant to quit has been decided to mean a notice of six months (z); and in the case of a domestic servant, a calendar month (a). On the other hand ::

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

Whether a surgeon has treated his patient negligently; whether a gratuitous bailee has lost his deposit by gross negligence (b), are examples of this rule. Thus, in Doorman v. Jenkins (c), 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

(t) Stocken v. Collin, 7 M. & W. 515.

(u) Parker v. Gordon, 7 East, 385; Elford v. Teed, 1 M. & S. 28.

(z) Startup v. Macdonald, 6 M. & G. 593.

(y) Ibid.

(2) Doe v. Spence, 6 East, 120.

(a) Fawcett v. Cash, 5 B. & Ad. 904.

(b) 2 Ad. & E. 261.

(c) Ibid.