Appeal from Judge's Decision. What happens if the judge does (improperly, unlawfully) express an opinion upon a matter of fact, a function exclusively belonging to the jury? If the case be appealed to a higher court (as from the Superior Court to the Supreme Court), a new trial will probably be ordered as the result. Supposing the judge of the lower court is free from interference with the jury's duties but commits another error (through misapprehension) and declares that to be the law (applying to the case) which is in reality not the law; again an appeal to the higher court will result in setting aside the verdict and ordering a new trial or directing a different verdict, dependent upon the circumstances in each case.

Setting Aside Verdict of Jury. In case the jury makes the mistake of substituting its own ideas of justice instead of following the instructions of the court as to what the law is, the situation is of greater difficulty, since the action of the jury is secret and its methods of reaching a result are not evident; apparently to meet this emergency the law permits the judge to set aside any verdict of the jury which he regards as contrary to the law and the evidence," and even here a refusal to set aside the verdict may be overruled on appeal to the higher court, if this decides that he should have set it aside. If improperly set aside in the lower court, again there is a chance for reversal of decision. The judge in the trial of a case needs to keep his head clear, and to possess an intimate knowledge of the law, so as to avoid rendering any incorrect decision as to any question of law involved in the suit.

Mixed Questions of Law and Fact. While the duties of judge and jury may be stated simply enough, nevertheless the line of cleavage becomes in some cases hard to determine. For instance, when there existed a defect in a sidewalk where an accident occurred, if there was no conflicting testimony as to the condition of the sidewalk, the judge might properly decide, as a matter of law, whether the city (or the owner) was negligent. If, however, there was some conflicting evidence as to the condition, then the jury must determine what that condition was, and in connection with this must find whether the city (or the owner) was negligent. There is a mixed question of law and fact, and the jury settles this.

Trial Without Jury. The lawyer of the client who sues the city, or railroad, or manufacturing corporation, will generally present evidence of a character which raises questions of fact and so requires that the jury shall decide whether or not the corporation was negligent. Sometimes by arrangement between parties, the jury is dispensed with for some particular suit, and it is agreed that the judge shall decide in that suit all the questions, both of law and fact. This is a wise proceeding in those cases (not rare) where both parties to the suit desire what is right, but have

an honest difference of opinion on it and desire the decision of some one skilled in sifting evidence, as well as competent to unravel a complicated set of accounts or a mass of technical evidence.

INTERPRETATION OR CONSTRUCTION OF STATUTES

Definition. In the use of language, uncertainty and ambiguity are sure to occur. Feebleness or imperfection of language lends itself to various interpretations put upon it by ambitious fraud and also by honest difference of opinion. To settle such difference some tribunal is necessary, and the determination of the meaning, the "interpretation" or construction" of a statute is a matter for the judge, and is quite outside the functions of the jury; nor can the legislature interpret it, although it may by a new enactment change the law.

Controlled by Common Law. Rules of interpretation are derived from the Common Law, and since that law constitutes the foundation and primarily the body and soul of our jurisprudence, every statutory enactment is construed by its light and with reference to its cognate principles. "Interpretation" and "construction" signify the ascertainment of the meaning and intent of the author, and this intent is that expressed in the instrument itself; the intent is what the writer actually expressed, and not what he may have intended or did intend to say; when this statement is clear and unambiguous, nothing further is needed or is considered in law.

Construe as a Whole. It is necessary to look into the writing as a whole, and it is a rule of law that every part (even every word) shall be given effect if possible, and that is the correct construction which does harmonize all the parts. In general a meaning will not be given or supplied if the maker in a simple way could, and naturally would, have expressed that meaning, but failed to do so. Where two constructions are possible, one valid and the other invalid, that one will be adopted which is valid. Similarly a construction is adopted which shows a legal purpose rather than an illegal; effective and useful, rather than frivolous; reasonable and just, rather than the contrary; nevertheless the clear language and intent prevails, and an argument as to reasonableness and justice will not prevail against a reading showing clear intent. Neither does. bad grammar, nor wrong spelling, spoil what is clear in intent.

Intent. When a construction harmonious throughout cannot be secured, the intent is still the thing sought, and where words are written into a printed instrument or form, the written words are held to, as more surely having been in the minds of the maker of the instrument. The circumstances attending the making of the writing, the purpose in having

the paper written, are proper subjects for inquiry when nothing more certain is available. In the case of contracts, anything which may show in what way the writing had previously been interpreted by the parties to it will have definite weight. While punctuation is said not to control, yet if the clear meaning can be better found by the help of punctuation, and not without it, then the punctuation is important, or even controlling. Clerical errors may be corrected, words added where clearly intended, or words left out in a similar way, but only when adding, omitting, or correcting leads to maintaining the clear intent. Sometimes meaningless words will be rejected as surplusage; but in general a strong effort will be made to give effect to every word.

Ordinarily words will be used in their general and popular sense rather than in any technical sense; but in a statute, or more especially in a contract covering special trade or technical operations, the technical rather than the popular sense will often be clearly intended. Where there is an irreconcilable conflict in parts of a statute the last is of greater weight and will control. Where an inferior court, or the officers even, have for a long time acted upon a certain construction of a statute, a higher court will hesitate about setting aside this accepted view and will tend to stand by the Common Law principle of holding to usage and custom. A statute expressed in such form that no useful construction can be put upon it is in effect void.

Strict or Liberal Construction. Whether statutes shall be interpreted strictly" or "liberally" is sometimes of considerable importance; but it is unsafe to attempt in this short treatise to lay down any rules, since these oftentimes have sufficient variation locally to require a somewhat careful study of authorities. In general, statutes in derogation of Common Law, of the common rights of individuals, are to be strictly construed; for instance, the statute providing for mechanics' liens, it is generally held, should be construed strictly, and no more power assumed than the strict reading allows.

Repeal of Previous Statutes. The rule has been stated that a later enactment serves to repeal not only the Common Law previously in force but also probably repeals any previous statutes or parts of statutes which are inconsistent. It is best, however, for the repealing act to state that "all previous inconsistent acts are hereby repealed." The courts do not favor repeal by implication, and an act well drawn will leave no uncertainty on this score.

Certain Special Words. It will be found that, in the case of certain words, court decisions have determined the meaning under the Common Law. For instance, the words "and" and "or" are very commonly construed as equivalent, although not always. Again, "shall" is some

times construed "may," and "may" sometimes construed "shall"; the distinction as to these is often of great difficulty and the true intent is not easily determined by the layman, not always even by the experienced lawyer; but it will sometimes depend only on the decision of the court, which in a close case is sometimes jocularly said to "have the last guess" at the meaning.

Importance of Clear Expression. It would be quite improper to leave the question of the interpretation of writings without making the suggestion that the engineer who has to do either with the production or interpretation of writings can have no better preparation than a thorough training in the clear expression of English and a critical analysis of its meaning. The school training must be supplemented by systematic individual work in this direction.

CHAPTER II

EVIDENCE

Definition. Evidence, in a legal view, is the means by which any alleged fact is established or disproved. There are two important sides or features of evidence; first, its "competency "; second, its "weight.” Competent evidence is that which is appropriate in its nature as a means of proof. Satisfactory or sufficient evidence is that amount or "weight" of evidence which is adapted to convince a reasonable mind.

Duties of Judge and Jury. It is for the judge to decide whether evidence offered is competent or admissible; the jury decides as to the weight" or sufficiency of evidence presented which bears upon the point at issue; that is, what credit shall be given to it. The jury has no opportunity to decide whether evidence offered shall be admitted; the judge settles this, and often sends a jury out while the attorneys argue whether certain evidence ought to be admitted or not.

Erroneous Rulings. If the judge rules improperly, in view of precedents forming the Common Law, or in view of special statutes, this constitutes an error on his part, and if the ruling be on a point material to the decision of the case, it probably will result in a new trial being ordered if the case is appealed to a higher court, just as is done in any other case of misinterpreting the law. The judge may, and occasionally does, exceed his functions by passing judgment upon the "weight" to be given to certain evidence presented; this again is error on his part. The jury is, in the first instance, the sole judge of the "weight" of evidence, the credit to be given it; but after the verdict of the jury is rendered, the judge may, and occasionally does, set the verdict aside because, in his opinion, it was clearly against the weight of evidence.

When, however, the judge directs a verdict either because the evidence is harmonious, or because, even if true it makes no case in law; in neither of these cases does he pass on the weight of evidence, but only upon its legal effect, and this lies within his proper functions.

Standards of Evidence. It is said that mathematical truth alone is susceptible of actual demonstration beyond possibility of error. Demonstration beyond reasonable doubt is the utmost that can be demanded or