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.1 So, the question whether the sum mentioned in an agreement to be paid for a breach, is to be treated as a penalty, or as liquidated damages, is one of law to be decided by the judge, upon a consideration of the whole instrument; and the question whether a letter amounts to a guarantee must be determined by the court alone, provided it contains no words of doubtful trade meaning, and the extrinsic facts are not in controversy. So it seems clear,-notwithstanding one or two authorities to the contrary,*—that the court must determine, whether a written acknowledgment of a debt," or of title, is sufficient to take the case out of the statutes of limitation; though, perhaps, in a doubtful case, it may be a prudent

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inventions, and the consequent want of novelty in the second. See, too, Betts v. Menzies, as ultimately decided in the House of Lords, 10 H. of L. Cas. 117; and Seed v. Higgins, 8 H. of L. Cas. 550, 561, 565. But see also the observations of Ld. Westbury, Ch., on Bush v. Fox, and the law supposed to be there laid down, in Hills v. Evans, 31 L. J., Ch. 461, 462.

1 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.; Griffiths v. Rigby, 1 H. & N. 237; Hills v. London Gaslight Co., 27 L. J., Ex. 60; Kirkland v. Nisbet, 3 Macq, Sc. Cas., H. of L. 766; Montgomery v. Middleton, 13 Ir. Law R., N. S. 173.

2 Sainter v. Ferguson, 7 Com. B. 727, per Wilde, C. J. This question was in former times occasionally left to the jury. See Crisdee v. Bolton, 3 C. & P. 240, per Best, C. J.

3 Bk. of Montreal v. Munster Bk., I. R. 11 C. L. 47.

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

5 Morrell v. Frith, 3 M. & W. 402; Routledge v. Ramsay, 8 A. & E. 222, per Ld. Denman.

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

course for the judge to express his own opinion, and also to take the opinion of the jury; and if the document is connected with other evidence affecting its construction, then the whole must be submitted to the jury together.

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§ 44. With respect to the construction of letters, the rule of law § 36 appears to be, that, if extrinsic circumstances be not capable of explaining them, then, like other documents, their interpretation is a pure matter of law, in however ambiguous language they may be couched; but if they be written in so dubious a manner as to bear different constructions, and if they can be explained by other transactions, the jury, who are clearly the judges of the truth or falsehood of such collateral facts, which may vary the sense of the letters themselves, must decide upon the whole evidence. Thus, where a question arose in Ireland whether the defendant had adopted the acceptance of a bill, it was held that the construction of a letter written by him on the subject, taken in connection with his subsequent conduct, was entirely for the jury. So, where a contract has to be made out partly by letters, and partly by parol evidence, the jury must deal with the whole question. If a document be lost, and oral evidence be given of its contents, the judge must construe its meaning in the same manner as if it had been produced, but the jury may, of course, in such a case be called upon to declare whether they believe the oral testimony.7

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§ 45. The power of the jury to interpret expressions is not con- § 37 fined to such as are employed in contracts, or have a peculiar

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

2 Routledge v. Ramsay, 8 A. & E. 222, per Ld. Denman; Morrell v. Frith, 3 M. & W. 402; Moore v. Garwood, 4 Ex. R. 681; Ashpitel v. Sercombe, 5 Ex. R. 163, 164; Foster v. Mentor Life Ass. Co., 3 E. & B. 48.

3 Furness v. Meek, 27 L. J., Ex. 34.

4 Per Buller, J., in Mackbeath v. Haldimand, 1 T. R. 182; Smith v. Thompson, 8 Com. B. 44. See Lyle v. Richards, 35 L. J., Q. B. 214, in Dom. Proc.; 1 Law Rep., H. L. 222, S. C.

Wilkinson v. Storey, 1 Jebb & Sy. 509. See Brook v. Hook, 6 Law Rep., Ex. 89; 40 L. J., Ex. 50, S. C.

Bolckow v. Seymour, 17 Com. B., N. S. 107.

7 Berwick v. Horsfall, 27 L. J., C. P. 193; 4 Com. B., N. S. 450, S. C.

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commercial meaning; but seems to extend to all phrases, capable of being used in a technical sense, which do not require any knowledge of the law to explain them. Thus, the courts have more than once refused to entertain the question, whether an excavation is a mine,1 and as such not rateable to the relief of the poor; but having so far laid down a legal principle with reference to the subject, as to decide that the method of working was to be considered, and not the chemical or geological character of the produce, they have declined to go further, and have left the magistrates in Sessions to apply to the question, as one of fact, the information they possess, and their knowledge of the English language. So, it has been held, that the jury must determine what constitutes such a representation of part of a dramatic production, as to subject the person representing it to penalties under the Act of 3 & 4 W. 4, c. 15.1 But if a word of doubtful import be used in an Act of Parliament, the judge ought to explain its general meaning; and, therefore, when, on the trial of an issue whether a railway was passing through "a town," within the meaning of the Railway Clauses Consolidation Act, the judge merely told the jury that the word "town" was to be understood in its ordinary and popular sense, the court held that this was a misdirection, and granted a new trial in consequence. the jury will not be allowed to examine a record, for the purpose of giving their opinion as to what word has been written above an erasure; for the inspection of a record is within the peculiar province of the court."

So,

If any question arises as to whether a mine is a mine within the meaning of the Mines Regulation Acts, 1872, it "shall be referred to a Secretary of State, whose decision thereon shall be final." 35 & 36 V., c. 76, § 70; and c. 77, § 39.

2 See Darvill v. Roper, 3 Drew. 303; Bell v. Wilson, 2 Drew. & Sm. 395; 35 L. J., Ch. 337, per Lds. Js., S. C.; 1 Law Rep., Ch. Ap. 303, S. C.; Dow. Duch. of Cleveland v. Meyrick, 37 L. J., Ch. 125, per Malins, V.-C.

3 R. v. Sedgeley, 2 B. & Ad. 65; R. v. Brettell, 3 B. & Ad. 424; R. v. Dunsford, 2 A. & E. 568; 4 N. & M. 349, S. C. "The Court of Quarter Sessions are judges of law and fact. The appeal to the Queen's Bench is confined to questions of law. The distinction, therefore, between the respective provinces of the two courts is so far analogous to the distinction under discussion, as to justify the drawing of illustrations from cases of appeal." 12 Law Mag. 64, n. 2. 4 Planché v. Braham, 4 Bing. N. C. 19.

Elliott v. South Devon Rail. Co., 2 Ex. R. 725. 6 R. v. Hucks, 1 Stark. R. 522, per Ld. Ellenborough.

§ 46. On the rule of law, which intrusts the judge with the § 38 interpretation of written instruments, an exception has been engrafted in certain cases, when the writing forms the subject of an indictment or an action on the case, and the guilt or innocence of the defendant depends upon the popular meaning of the language employed. Thus, on a prosecution for libel, the legislature,-after much acrimonious discussion between the judges on the one hand, and the advocates of popular rights on the other,1—has expressly determined, that the question whether the particular publication which is the subject of inquiry, is of a libellous character, and is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is one upon which the jury must exercise their judgment and pronounce their opinion, as a question of fact. The judge, indeed, as a matter of advice to them in deciding that question, may give his own opinion respecting the nature of the publication, but is not bound to do so as a matter of

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1 As to this celebrated dispute, see, in support of the claims of the judges, R. v. Udall, 1 How. St. Tr. 1289; R. v. Woodfall, 20 id. 913, 918, 920, per Ld. Mansfield; 5 Burr. 2661, S. C. ; R. v. Dean of St. Asaph, 21 How. St. Tr. 1033, per Ld. Mansfield: and in support of the rights of the jury, R. v. Tutchin, 14 id. 1128, per Ld. Holt; R. v. Owen, 18 id. 1223, 1227; R. v. Dean of St. Asaph, 21 id. 922, 971, arguments of Mr. Erskine, and 1040, per Willes, J.; 29 id. 49, per Ld. Ellenborough; 1 Woodfall's Junius, 14, et seq., 163, 169— As to the proceedings in the House of Lords on the passing of the Libel Act, see 22 How. St. Tr. 294, 297.

176.

2 32 G. 3, c. 60, § 1, declares and enacts that, on every trial of an indictment or information for a libel, "the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information; and shall not be required or directed by the court or judge, before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information." § 2 provides, that, "on every such trial, the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases." § 3 provides, that a jury may find a special verdict; and § 4 reserves to defendants a right to move in arrest of judgment.

Semble, the word "shall" should here be interpreted as if the word "may" had been used. See per Littledale, J., in Baylis v. Lawrence, 11 A. & E. 925.

law. The statute here noticed is strictly applicable to criminal trials only, but, being a declaratory Act, its provisions have been adopted in civil actions for libel, and, for a series of years, it has been the course for the judge,-in the event of his deciding that the words complained of are reasonably capable of bearing the defamatory meaning ascribed to them by the innuendoes,2-first to give a legal definition of the offence, and then to leave the jury to determine whether the writing complained of falls within that definition or not. It is not, however, absolutely necessary that the judge should explain what constitutes a libel, but he may leave the whole question without reserve to the jury; though if they find a verdict against the defendant, either on an indictment or an action, the court will arrest the judgment, if the writing on the face of it is not libellous.5

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§ 47. On indictments for writing threatening letters, the re- § 39 spective duties of the judge and jury are not very clearly defined. In some cases the jury have been permitted, upon examination of the paper, to decide for themselves whether or not it contained a menace. In other cases, the question appears to have been exclusively determined by the court; while on a few occasions the opinions of the jury, and of the judges, have alternately been taken on the point.9

§ 48. In regard to foreign laws,10 usages and customs, which we § 40 have already seen cannot be judicially noticed, but must be proved as facts in each particular case, 12 the distinction between

1 Per Parke, B., in Parmiter v. Coupland, 6 M. & W. 108.

2 Hunt v. Goodlake, 43 L. J., C. P. 54; Sturt v. Blagg, 10 Q. B. 906, 908, per Wilde, C. J. 3 Parmiter v. Coupland, 6 M. & W. 107, 108.

4 Baylis v. Lawrence, 11 A. & E. 920.

5 Hearne v. Stowell, 12 A. & E. 719; 4 P. & D. 696, S. C.; Goldstein v. Foss, 6 B. & C. 154; Parmiter v. Coupland, 6 M. & W. 106, per Alderson, B. See 24 & 25 V., c. 96, §§ 44, 46.

7 R. v. Girdwood, 1 Lea. 142; 2 East, P. C. 1120, S. C.

8 R. v. Smith, 1 Den. 510, 512; 2 C. & Kir. 882, 884, S. C.; R. v. Pickford, 4 C. & P. 227. 9 R. v. Robinson, 2 Lea. 755, 765. 11 Ante, § 5.

10 As to colonial laws, see ante, § 9. 12 Although a point of foreign law may have been proved and acted upon in one court, another court will not rely upon the report of such a case, but will