To questions of fact judges do not answer — To questions of law the jury do not answer.
Matters of fact are tried by jurors, matters of law by the judges, and the duty of the jurors is to find the truth of the fact, and to leave the decision of the law to the judges.
If, in the trial of an issue, the issue to be tried be one of fact only, it is to be decided by the jury ; if of law, by the judge. In the trial of an action at law, though the issue joined is one of fact for the jury to decide or to find ; yet it is for the judge to determine the law, upon that finding, and this he either does at the trial ; or, if a difficult point of law arise, leaves to be done by the court above upon a general verdict, subject to a special case, stating the facts for the consideration of the court.
In the trial of an action mixed questions of law and fact frequently arise ; as upon a contract, either by parol or in writing, in which case the jury find the existence of the contract and the nature of it, and the judge determines the construction in law to be put upon such contract.
In some cases a jury may be said to exercise the office of both judge and jury ; as, when they are directed as to the law by the judge, but, in giving their verdict, misapply it, whether from willfulness or misapprehension.
Though the jury are judges of the facts upon which depend the main issue in question, yet they are not to determine all facts arising incidentally during the trial of a cause ; as, for instance, On a question as to the admissibility of evidence, the consideration of the facts relating thereto, and the rejection and reception thereof, are matters altogether within the province of the judge. In practice, on a trial at Nisi Prius, after the evidence is closed, the judge states to the jury, for their information and guidance, the question really in dispute between the parties, and directs their attention to the evidence ; and when a question of law is mixed up with the facts, he states and explains to them the principles of law governing tho case, and by which it must be decided ; but he does not interfere further with what may be considered the province of the jury, and he only goes so far as has been stated, when he considers it necessary to prevent a failure of justice.
Recent legislation has made great inroads into this old maxim, by giving to judges of the county courts, and of the superior courts, power to decide matters of fact, as well as of law, without the intervention of a jury ; in some cases with, and in others without, the consent of the parties. Courts of equity, as well as courts of law, have also now the power of determining matters of fact by means of a jury, without directing an issue to be tried by a court of law as formerly, the. functions of the equity judge and jury being in such eases somewhat similar to those at lav,'. Courts of equity, however, do not seem of a construction suitable to the adoption generally of trial by a jury ; but only in those cases where a plain question of fact has to be determined : for, equity judges are themselves, in general, judges of the facts and of their application to the law, and of the application of the law to them on the evidence brought before them ; and are well able legally and equitably to determine the facts upon the evidence, and to apply the law, as equitably administered by them, to tho facts. But, out of deference to the old institution of trial by jury, a matter arising in pais must still be determined in pais.
Co. Litt. 12.-,, 225, 220, 205 ; 8 Co. 308 ; 9 Co. 13; II) Co. 02 ; 3 Bla. Com. ; Elliott r. South Devon Railway Company, 2 Exch. 725 ; Bartlctt r. Smith, 11 M. & W. 480 ; Panton v. Williams, 2 Q. B. 10!); Doe v. Lewis. 1 Burr. 017; Gibson v. Overbury, 7 31. & \V. 555; Fryer ,. Coombes, 3 Q. B. 587 ; Davidson ,-. Stanley, 3 Sc. N. R. 4!) ; Medley v. Smith, 3Ioore, 53 ; Baylis t: Lawrence, 11 A. & li 020; Doe v. Crisp, 8 A. <ft E. 770 ; Heslop c. Chapman, 23 L. J. 52, Q. B.