respective duties of the judge and jury are not yet clearly defined. For instance, if the question be whether a certain party had probable cause for doing an act, or whether he has done an act within a reasonable time, or with due diligence, it is difficult to say whether the definition of what constitutes probable cause, reasonable time, or due diligence, be for the judge or the jury, and specious arguments will not be wanting in favour of the claims of either party. On the one hand, it may be said, that these terms are as capable of judicial interpretation, as the words conversion, or asportation, which must clearly be explained by the judge; while, on the other hand, it may be urged, that they seem rather addressed to the practical experience of practical men, than to the legal knowledge of the mere lawyer; that being terms of degree, their meaning is subject to indefinite fluctuation, according to the varying circumstances of each particular case, and consequently, they defy all attempts to compass them within exact à priori definitions. In truth, they are neither matters of fact, nor matters of law, exclusively, but are rather matters of quality or opinion, which, for want of a more appropriate name, have been generally termed “mixed cases." They form, in logical phrase, the middle term, and are alike common to both the premises, which are respectively entrusted to the judge and jury, and upon which the ultimate decision must proceed.'

Having said thus much respecting the general nature of this class of cases, it remains to be seen what decisions have been reported on the subject; and although some of these will be found to rest rather on arbitrary authority than on any definite principle of law, it is hoped that their collection and partial classification may be of some service to the profession, the more especially as precedents have ever been considered in this country as deservedly entitled to respect and deference.

First, it is now clearly established, that the question of probable cause must be decided exclusively by the judge, and that the jury can only be permitted to find, whether the facts alleged in support of probability, and the inferences to

See, on this difficult subject, 1 St. Ev. 512-526.

be drawn therefrom, really exist.1 This rule is equally binding however numerous and complicated the facts and inferences may be 2; for, although in some cases, it would doubtless be attended with great difficulty to bring before the jury all the combinations of which numerous facts are susceptible, and to place in a distinct point of view the application of the rule of law, according as all or some only of the facts and inferences from facts, are made out to their satisfaction, yet the task is not impracticable; and it would obviously savour of gross inconsistency to hold that a rule, which is undisputed in a simple case, should not equally apply where the facts were complicated. For where could the line be drawn, and who should determine what degree of complexity would transfer the burthen of decision from the judge to the jury? The difficulty, too, is more apparent than real, for it rarely happens but that there are some leading facts in each case, which present a broad distinction to the view, without having recourse to the less important circumstances; and as the judge has a right to act upon all the uncontradicted facts, it is only where some doubt is thrown upon the credibility of the witnesses, or where some contradiction occurs, or some inference is attempted to be drawn from some former fact not distinctly sworn to, that he is called upon to submit any question to the jury. Although the rule is as we have stated it, where, in an action

5

1 Michell v. Williams, 11 M. & W. 205.; Panton v. Williams, 2 Q. B. 169. ; 1 G. & D. 504. S. C.; Sutton v. Johnstone, 1 T. R. 493. 510. 544, 545. 547. 784.; 1 Br. P. C. 76., 2d ed. S. C. in Dom. Proc.; Mitchell v. Jenkins, 5 B. & Ad. 594-596.

? In Panton v. Williams, 2 Q. B. 192., Tindal C. J. observes, "Upon this bill of exceptions, we take the broad question between the parties to be this; whether, in a case in which the question of reasonable or probable cause depends, not upon a few simple facts, but upon facts which are numerous and complicated, and upon inferences to be drawn therefrom, it is the duty of the judge to inform the jury, that, if they find the facts proved and the inferences to be warranted by such facts, the same do or do not amount to reasonable or probable cause, so as thereby to leave the question of fact to the jury, and the abstract question of law to the judge? And we are all of opinion that it is the duty of the judge so to do."

3 Panton v. Williams, 2 Q. B. 194, 195., per Tindal C. J., pronouncing the judgment of the Ex. Ch.

4 Id.

5 Michell v. Williams, 216, 217., per Alderson B.

on the case for malicious prosecution, the question of probable cause arises, it seems to have been held both in England and Ireland, that in an action of trespass, the reasonableness of a suspicion upon which a party acts in causing an arrest, or in detaining goods, is a question which the jury may be called upon to decide.' As these decisions appear to be at variance with the late case of Panton v. Williams, for it is submitted that no sensible distinction can be taken between questions of reasonable suspicion and those of probable cause, it may admit of a serious doubt, whether they would be considered as binding authorities at the present day.

The question of reasonable time is open to more doubt than that of probable cause. With respect to some subjects indeed, which from their frequent recurrence admit of the adoption of precise rules, as to what constitutes reasonable time, the courts, for the sake of commercial convenience, have laid down such rules; and in these cases, the duty of the jury is clearly confined to the simple task of ascertaining whether the facts proved fall within the rules or not. Thus, notice of dishonour of a bill of exchange must be given within a reasonable time, and this has been held by the judges to mean, according as the parties live in the same, or in different, places, either that the letter, containing notice, should be so posted, that in the due course of delivery, it would arrive on the day following that when the writer receives intelligence of dishonour2, or that such letter should be posted before the departure of the mail on the day following the receipt of intelligence3; or if there be no post on that day 4, or if it start at an unseasonable hour in the morning 5, then the writer shall have an additional day. So, the holder of a cheque, or of a bill or note, payable on demand,

1 Wedge v. Berkeley, 6 A. & E. 663.; 1 N. & P. 665. S. C.; Annett v. Osborne, 2 Jebb & Sy. 376.

2 Stocken v. Collin, 7 M. & W. 515.; Smith v. Mullett, 2 Camp. 208., per Ld. Ellenborough; Hilton v. Fairclough, id. 633., per Lawrence J.

3 Williams v. Smith, 2 B. & A. 496.

W. 436.

See Shelton v. Braithwaite, 7 M. &

4 Geill v. Jeremy, M. & M. 61., per Ld. Tenterden.

5 Hawkes v. Salter, 4 Bing. 715.; 1 M. & P. 750., S. C.; Bray v. Hadwen,

5 M. & Sel. 68.; Wright v. Shawcross, 2 B. & A. 501. n.

need not present the instrument for payment till the day following that on which it was received, for the judges have put this construction on the term "reasonable time," within which the instrument must be presented.1 They have also, with respect to the presentment of bills for payment, taken upon themselves to decide, as a question of law, what constitutes reasonable hours, and have held, that if an instrument be payable at a banker's, it must be presented within banking hours 2; if elsewhere, at any time when the drawee may be expected to be found at his place of residence or business, though it be as late as eight or nine o'clock in the evening.3 In like manner, a reasonable notice to quit a tenancy has for centuries received a legal construction, as meaning a six months' notice; and where the tenant holds different portions of the premises from different days, it has been further decided that the notice refers to the day of entry on the substantial subject of the holding.5 So, in the case of domestic servants, a reasonable notice to quit, is a calendar month's warning. In all these cases, the question, being decided by a precise rule of law, is entirely withdrawn from the consideration of the jury. Formerly the judges endeavoured to limit to a period of three days, the reasonable time, for which a suspected party might be committed for re-examination 7; and, although it was afterwards held that no precise rule could be laid down on this subject, inasmuch as the length of time must vary according to the special circumstances of ' Rickford v. Ridge, 2 Camp. 539.; Boddington v. Schlencker, 4 B. & Ad. 752.; Moule v. Brown, 4 Bing. N. C. 266.

6

• Parker v. Gordon, 7 East, 385.; Elford v. Teed, 1 M. & Sel. 28.

3 Wilkins v. Jadis, 2 B. & Ad. 188.; Jameson v. Swinton, 2 Taunt. 224. ; Barclay v. Bailey, 2 Camp. 527., per Ld. Ellenborough. As to the delivery of goods within reasonable hours, see Hartup v. Macdonald, 2 M. & Gr. 395.

Doe v. Spence, 6 East, 123., per Ld. Ellenborough.

5 Doe v. Snowdon, 2 W. Bl. 1224.; Doe v. Spence, 6 East, 120.; Doe v. Watkins, 7 East, 551.; Doe v. Rhodes, 11 M. & W. 600. In this last case the question raised, but not decided, was, whether, where a tenant holds a farm from year to year, the land from the 2d of Feb., the house from the 1st of May, a notice to quit the whole, given half a year before the 2d of Feb. is sufficient to entitle the landlord to recover the whole in ejectment. The inclination of Lord Abinger's opinion appears to have been in support of the affirmative.

• Nowlan v. Ablett, 2 C. M. & R. 54.; Fawcett v. Cash, 5 B. & Ad. 904. ; 3 N. & M. 177. S. C.

7 Scavage v. Tatham, Cro. El. 829.

5

each case, and must depend upon the probability of obtaining further evidence, yet the better opinion seems to be that, as in the case of probable cause, the jury must ascertain the existence of the facts, leaving the court to determine, upon these facts, whether the time was reasonable or not.1 On two occasions, indeed, in England, and on one in Ireland2, the entire question appears to have been submitted to the jury 3, but the latter of the two English cases rested upon the authority of the former 1, and in the former no objection was taken at Nisi Prius to the summing up of the judge, but on a subsequent motion in Banc, its correctness was questioned, and at the second trial, the course stated above was distinctly adopted. So, in an action against a sheriff for an escape, the question whether the officer was guilty of unreasonable delay in taking the party arrested to prison, is one for the determination of the judge; as also are the questions, whether an arrest has been countermanded within a reasonable time, whether a witness has been served with a subpoena a reasonable time before the trial, or whether an executor has had reasonable time to remove the goods from the testator's mansion. It seems, also, that the judges are the proper parties to decide whether fines, customs, or services are reasonable 1o, as also whether deeds contain reasonable covenants or powers.11 On the other hand it appears to have been held, that the questions, whether a crop has been left on the ground for a rea

1 Davis v. Capper, 10 B. & C. 28. ; 5 M. & R. 53. ; 4 C. & P. 134. S. C. 9 Gillman v. Connor, 2 Jebb & Sy. 210.

3 Davis v. Capper, 10 B. & C. 30., per Gaselee J.; Cave v. Mountain, 1 M. & Gr. 260., per Ld. Abinger; 1 Scott, N. R. 132. S. C.

Cave v. Mountain, 263., per Tindal C. J., who adds that Ld. Abinger, who tried the cause, 66 was, under all the circumstances, satisfied with the verdict," and consequently the propriety of his leaving the question to the jury could not practically be questioned in the court above.

5 Davis v. Capper, 4 C. & P. 134. (a), 138.; 10 B. & C. 33. 35, 36.

• Benton v. Sutton, 1 Bos. & Pul. 28., per Heath J.

Scheibel v. Fairbain, 1 B. & P. 388.

ought to have been countermanded in the

was received.

Heath J. there held that the arrest

course of the day in which the debt

8 Barber v. Wood, 2 M. & Rob. 172., per Ld. Abinger.

9 Co. Lit. s. 69., and p. 56. b.

10 Co. Lit. 56. b; Id. 59. b; Wilson v. Hoare, 10 A. & E. 236.; Bell v. Wardell, Willes, 202.

11 Smith v. Doe dem. Jersey, 2 B. & B. 592., per Abbott C. J.