§ 39. In all other proceedings in the High Court the costs are now, by virtue of the New Rules, Order LV., in the court's discretion; subject, however, to this proviso, that if the action or issue be tried by a jury, "the costs shall follow the event, unless, upon application made at the trial for good cause shown, the judge before whom such action or issue is tried, or the court, shall otherwise order." As this rule virtually repeals the old statutes relating to costs, it follows that the recovery of a farthing damages by verdict will carry costs in the absence of an order to the contrary. And it ought further to be carefully borne in mind, that the application for such an order must be made at the trial, and must be dealt with either by the judge before whom the action is tried, or by the Divisional Court. A judge at chambers, even though he be the same judge as presided at the trial, will have no jurisdiction in the matter.3

4

§ 40. When a question arises as to whether a communication be § 33 privileged or not, and the privilege be of a character which is not regarded as absolute on public grounds, 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 bonâ fide; and then, if the fact be found in the affirmative, as it must be if the evidence be not sufficient to raise a probability that the communication was colourably made,5-the judge must decide, as a question of law, whether the occasion of the publication was such as to rebut the inference of malice. If, however, any doubt should exist as to whether or not the defendant had in some respect exceeded the limits of his privilege, and had made comments, which

1 Parsons v. Tinling, L. R., 2 C. P. D. 119; 46 L. J., C. P. 230, S. C. See as to the old law, 3 & 4 V., c. 24, § 2; 8 & 9 W. 3, c. 11, § 1; and 8 & 9 V., c. 93, §§ 81, 83.

* Baker v. Oakes, L. R., 2 Q. B. D. 171; 46 L. J., Q. B. 246, S. C.

3 Id.

As to such privileged communications, see Dawkins v. Paulet, 5 Law Rep., Q. B. 94; 9 B. & S. 768 ; 39 L. J., Q. B. 53, S. C.; and Dawkins v. Ld. Rokeby, 8 Law Rep., Q. B. 255, per Ex. Ch. ; 42 L. J., Q. B. 63, S. C.

553.

Taylor v. Hawkins, 16 Q. B. 308; Somerville v. Hawkins, 10 Com. B.

Coxhead v. Richards, 2 Com. B. 584, 603, per Cresswell, J.; 600, per Coltman, J.; Stace v. Griffith, 6 Moo. P. C., N. S. 18.

might be regarded as evidence of actual malice, the opinion of the jury must be taken upon the effect of such evidence.1

6

3

§ 41. It is still a moot point whether, on an indictment for § 34 perjury, the materiality of the matter in which the false swearing is proved, is a question of fact for the jury, or a question of law for the judge; but, according to the better opinion, it ought to be regarded in the latter light. It seems, however, that questions respecting permissive occupation; the assent of an executor to a bequest; the unsoundness of a horse; 5 the delivery of a document as an escrow, unless the question turn solely on the construction of writings; the infringement of a patent, where such infringement does not depend merely on the construction of the specification;8 the novelty of a design, within the meaning of the Acts relating to copyright of design for articles of manufacture; the existence of a nuisance, as caused by erecting a bridge or weir in a navigable stream; 10 the definition of the word street; "11 the seaworthiness of a ship; 12 the materiality of facts not communicated in effecting an insurance; 13 the competency of a testator in a will cause; the cruelty of a husband as a ground for judicial separation; 14 and the

1 Cooke v. Wildes, 5 E. & B. 328.

66

9

2 See and compare R. v. Courtney, 7 Cox, 111; 5 Ir. Law R., N. S. 434, S. C.; R. v. Lavey, 3 C. & Kir. 26; R. v. Dunstan, Ry. & M. 109.

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

4 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 also Elliott v. Elliott, 9 M. & W. 27, per Ld. Abinger.

5 See per Patteson, J., in Baylis v. Lawrence, 11 A. & E. 926.

• Furness v. Meek, 27 L. J., Ex. 34. See post, § 43, 1834.

7 De la Rue v. Dickenson, 7 E. & B. 738; Lister v. Leather, 27 L. J., Q. B. 295; 8 E. & B. 1004, S. C.

* Seed v. Higgins, 8 H. of L. Cas. 550, 561, 565. See post, § 43.

9 Harrison v. Taylor, 29 L. J., Ex. 3.

10 R. v. Betts, 16 Q. B. 1022; R. v. Russell, 6 B. & C. 566; R. v. Ward, 4 A. & E. 384.

11 R. v. Fullford, 1 L. & Cave, 403; 9 Cox, 453, S. C.

12 Clifford v. Hunter, 3 C. & P. 16, per Ld. Tenterden ; M. & M. 103, S. C.

13 Rawlings v. Desborough, 2 M. & Rob. 328, per Ld. Denman.

11 Tomkins v. Tomkins, 1 Swab. & Trist. 168.

condonation of a conjugal offence,1 are for the jury, though the judge ought to take care that they are not misled by anything that comes out in the evidence. 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.3 So, the question whether a tender be absolute or conditional is usually one for the jury; the court, however, being mindful to point out that a tender is not invalid in law as being conditional, if it merely implies that the debtor admits no more to be due, but that it must go further, and imply that the creditor, if he consents to take the sum offered, will be required to admit that his entire claim is satisfied. The jury, also, in any question relating to the amount of interest payable on a foreign bill of exchange, will determine as facts, first, what rate of interest is usually paid at the respective places where the bill was drawn or indorsed or accepted, and next, whether the plaintiff has sustained any damage requiring the payment of interest at all; but the judge will decide as a pure question of law, whether the case is to be governed lege loci contractus, or lege loci solutionis.

§ 42. The jury must decide whether articles supplied to an infant § 35 be necessaries: but their decision is subject to the control of the judges, 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; secondly, that the articles must be really useful, and therefore that merely ornamental jewelry, or luxurious confec

8

1 Peacock v. Peacock, 1 Swab. & Trist. 183.

2 Per Ld. Abinger in Mackintosh v. Marshall, 11 M. & W. 126.

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.; Clark v. Wright, 11 Ir. Law R., N. S. 402.

* Eckstein v. Reynolds, 7 A. & E. 80; Marsden v. Goode, 2 C. & Kir. 133.

5 Bowen v. Owen, 11 Q. B. 130; Bull v. Parker, 2 Dowl., N. S. 345; Henwood v. Oliver, 1 Q. B. 409.

Gibbs v. Fremont, 9 Ex. R. 25.

7 Harrison v. Fane, 1 M. & Gr. 553, per Tindal, C. J.; Ryder v. Wombwell, 38 L. J., Ex. 8, per Ex. Ch. ; 4 Law Rep., Ex. 32, S. C.

* Burghart v. Hall, 4 M. & W. 727; Peters v. Fleming, 6 M. & W. 46. Peters v. Fleming, 6 M. & W. 47, 48, per Parke & Alderson, Bs.; Ryder v. Wombwell, 38 L. J., Ex. 8, per Ex. Ch.; 4 Law Rep., Ex. 32, S. C. In the

1

2

3

tionary, are not necessaries; and thirdly, that, if useful, they must be such as would be necessary and suitable to the degree and station in life of the infant. In a 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; and the same course was pursued, where an Irish jury had found that a hunter was "necessary" for a mere boy, who, having bragged at a ball that he was a member of the Surrey Stag Hunt, and worth 600l. a year, had induced an Irishman to sell him his horse for 150l., had hunted the animal through the season, and had then, when payment was demanded, set up, through his guardian, what was described by an indignant advocate as "the shabby defence of infancy." 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.5

§ 43. The construction of all written documents,—which term it § 36 is presumed necessarily includes Acts of Parliament, judicial records, deeds, wills, negotiable instruments, agreements or letters,-belongs to the court alone, whose duty it is to construe all such instruments

latter case, a pair of jewelled solitaires and a silver-gilt goblet were held not to be "necessaries"; but in the former case it was determined that the jury were entitled to say, whether a watch and gold chain were necessaries for an undergraduate. They found, as is their wont, in the affirmative.

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

2 Peters v. Fleming, 6 M. & W. 42. 3 Harrison v. Fane, 1 M. & Gr. 550.

4 Skrine v. Gordon, I. R. 9 C. L. 479.

5 Wharton v. Mackenzie, and Cripps v. Hills, 5 Q. B. 606; 1 D. & M. 544, S. C.; in which cases, juries having decided that wine parties and suppers were necessaries for Oxford undergraduates, the Court of Q. B. 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. Legal expenses in

3

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; 2 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 of redress in a court of error; but a misconstruction by the jury cannot in any way be effectually set right. Thus the court, after obtaining from the jury a mere explanation of technical terms,5 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; and where a contract

6

preparing a marriage settlement have also been held "necessaries" for an infant bride. Helps v. Clayton, 17 Com. B., N. S. 553.

1 See Ashforth v. Redford, 9 Law Rep., C. P. 20; 43 L. J., C. P. 57, S. C.; Alexander v. Vanderzee, 7 Law Rep., C. P. 530. But see Bowes v. Shand in Dom. Proc. 8 June, 1877, affirming Shand v. Bowes, L. R., 1 Q. B. D. 470; 45 L. J., Q. B. 507, S. C.

* See Tamvaco v. Lucas, 1 B. & S. 185; S. C. in Ex. Ch., 3 B. & S. 89; Lyle v. Richards, 35 L. J., Q. B. 214, in Dom. Proc.; 1 Law Rep., H. L. 222, S. C.

3 Key v. Cotesworth, 7 Ex. R. 595. In Lang v. Smith, 7 Bing. 284, the court held that the jury were rightly directed to determine, as a question of mercantile usage, whether certain Neapolitan bonds passed by the mere delivery of the coupons, without the production of the certificates.

4 Per Parke, B., pronouncing the judgment of the court in Neilson v. Harford, 8 M. & W. 823. 5 Hills v. Evans, 31 L. J., Ch. 457.

Neilson v. Harford, 8 M. & W. 806, 818, 819; 2 Webst. Pat. R. 295, 328, S. C.; Bovill v. Pimm, 11 Ex. R. 718. These cases virtually overrule Hill v. Thompson, 3 Mer. 630, where Ld. Eldon observed, that the intelligibility of the description of a specification was a matter of fact. It is worthy, of remark, that in America the sufficiency of the description in a patentee's specification is generally left as a question of fact to be determined by the jury, unless the statement be obviously too vague. Wood v. Underhill, 5 How. S. Ct. R. 1, 4. See Bush v. Fox, 5 H. of L. Cas. 707; Booth v. Kennard, 2 H. & N. 84; Hills v. London Gaslight Co., 5 H. & N. 312; 29 L. J., Ex. 409, S. C.; and Betts v. Menzies, 1 E. & E. 990, 1020; in which cases it was held that where in a patent cause the want of novelty appears distinctly from documents, such for instance as a prior patent and specification, the judge, and not the jury, must notice the identity of the two supposed