particular trades, such as "bales," is for a jury (d); and where on a sale of goods the invoice provided that they should be paid for "in from six to eight weeks," this was held to be a phrase for the jury to interpret (c). Under this rule also is contained the general principle that, whenever facts have to be proved by oral evidence or extrinsic circumstances, the jury pronounce the inference; but when the evidence assumes a written form this function belongs to the judge. Thus when the question is whether a contract has been executed as an escrow, or not, if the question depend on facts the jury decides: if on the construction of writings it belongs to the judge (f). But when secondary oral evidence of writings is admitted it has been decided that the judge and not the jury construes the evidence, because the issue is substantially one on the construction of a writing (g). The court, however, will not consider the question of improper rejection of a document by a judge, unless it clearly appears that it was formally tendered in evidence at the trial (h).

In cases of indictable tort, where guilt or innocence is to be inferred from the contents and meaning of a writing, the construction is for the jury. Thus, on an indictment for writing a menacing letter, the

(d) Gorrissen v. Perrin, 2 C. B., N. S. 631.

(e) Ashworth v. Retford, L. R., 9 C. P. 20; 43 L. J., C. P. 57. (f) Furness v. Meek, 27 L. J., Ex. 34.

(g) Berwick v. Horsfall, 4 C. B., N. S. 450.

(h) Campbell v. Loader, 3 H. & C. 520.

jury will say whether the language amounts to a menace (i).

Finally, it is for the jury to determine the meaning of foreign law and documents, on the testimony of skilled witnesses; but for the court to decide on the competency of such witnesses, the admissibility of the documents, and the applicability of the foreign law to the matter in issue (k).

(i) R. v. Girdwood, 2 East, P. C. 1120.

(k) R. v. Picton, 30 How. St. Tr. 536-540, 864-870.

CHAPTER III.

THE COMPETENCY OF WITNESSES-THE COMPETENCY OF PARTIES TO CIVIL PROCEEDINGS-THE INCOMPETENCY OF PARTIES TO CRIMINAL PROCEEDINGS-MATTERS NOT PROVEABLE BY A SINGLE WITNESS-THE TESTIMONY OF ACCOMPLICES.

Ir has already been stated (a) that all objections to the competency of witnesses are for the decision of the judge, who will, if there appear to be any doubt on the subject, examine into the competency or incompetency of the proposed witness before allowing him to be sworn. This preliminary examination is called the examination on the voir dire, i. e., vrai dire, and witnesses may be called for the purposes thereof, to establish the competency or incompetency of the person tendered as a witness. Under this head it may be considered to be the general and established principle of evidence, that—

All persons of sound and adult mind, provided they believe in the religious obligation of an oath, or make a solemn promise and declaration to speak the truth (including the parties to civil pro

(a) Supra, p. 12.

ceedings, but not a prisoner or defendant on a criminal charge), are competent, and, in general, compellable witnesses in every court of justice concerning the matters in issue.

Under this rule the first consideration will be

SECT. 1. The Incompetency from Defect of Understanding in Witnesses.

Persons who have not the use of reason are, from their infirmity, utterly incapable of giving evidence, and are therefore excluded as incompetent witnesses.

This description of incompetency may be either constitutional or accidental: and in the latter case it may be either temporary or permanent. It may also arise from imperfect development. Hence we have three classes of persons as to whom it may (subject to the qualifications hereinafter mentioned) be said that they are incompetent witnesses :

1. Idiots.

2. Lunatics.

3. Children of immature intelligence.

1. An idiot is one that hath had no understanding from his nativity, and therefore is by law presumed never likely to attain any; and such a person is incapable of giving evidence. Deaf and dumb persons were formerly regarded as idiots, and therefore

incompetent to testify, but the modern doctrine is, that if they are of sufficient understanding, and know the nature of an oath, they may give evidence (b) either by signs, or through an interpreter, or in writing (c). It has been laid down that "the presumption is always in favour of sanity, and there is no exception to this rule in the case of a deaf and dumb person, but the onus of proving the unsoundness of mind of such a person must rest on those who dispute the sanity" (d). When a deaf and dumb witness has been pronounced competent to testify, but it appears in the course of taking his evidence that he is incompetent, his evidence may be withdrawn from the jury (e).

2. A lunatic, or non compos mentis, is one who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason (ƒ).

As long as the suspension of the intelligence continues, the lunatic is an incompetent witness: but his competency is restored during a lucid interval (g). Nor will the disability extend to cases of mere monomania, nor where the hallucination permits the witness to understand the nature of the duty which is

(b) 1 Hale, P. C. 34; Rushton's case, 1 Leach, C. C. 408; Morrison v. Lennard, 3 Car. & P. 127.

(c) As to the procedure when a deaf and dumb person swears an affidavit, see Daniell's Ch. Forms, 3rd ed. 394.

(d) Per Ld. Hatherley, Harrod v. Harrod, 4 K. & J. 9.

(e) R. v. Whitehead, L. R., 1 C. C. R. 33; 35 L. J., M. C. 187; 14 W. R. 677.

(f) 1 Bl. Comm. 304.

(g) Com. Dig. Testim. (A. 1).