question be one of law or of fact. Thus far it is clear, that whenever upon particular facts found, the court, by the application of any rules of law, can pronounce on their legal effect, with reference to the allegations on the record, such inference is matter of law. It is also clear, that whenever the court can pronounce on the legal effect of particular facts, and where it is requisite, to enable them to do so, that the jury should find some other inference or conclusion, such further inference or conclusion is a question of fact. It is most emphatically true, that a jury can decide matters of fact only; they may indeed apply the law as delivered by the court, but in this respect they act merely ministerially, under the direction of the court.

Every general verdict, and indeed every allegation on the record found by a jury to be true, involves matter of law as well as matter of fact; for it is always a question of law, whether the particular facts proved satisfy the allegations upon the record. Every legal definition, allegation, and every general verdict, involves both law and fact. Thus, in the simplest case, if the issue be whether A. assaulted B. it involves a question of law, as well as of fact; what A. did is a question of fact; whether what he so did amounted in law to an assault, is a question of law. Still the question for the jury is one of mere fact, for upon the advice of the court they find a general verdict, applying the law to the facts proved, or they find the facts, and the court afterwards applies the law. 1 Starkie, Ev. 406.

§ 494. Law and Fact, Distinction.—It is a frequent subject of inquiry and debate, whether certain words or phrases imply questions of fact, or questions of law, or both, or are conclusions of law. The following collection of decisions on the subject cannot fail to be useful. They are found in the opening chapter of Ram on Facts, a work well and favorably known to the profession.

The following words and phrases have been held to imply questions of fact: Negligence (Tobin v. Murison, 5 Moore, P. C. 110; Bernhardt v. Rensselaer & S. R. Co. 32 Barb. 165, aff'd 23 How. Pr. 166; Mettlestadt v. Ninth Ave. R. Co. 4 Robt. 377; Ginnon v. New York & H. R. Co. 3 Robt. 26; Buckingham v. Payne, 36 Barb. 81. But see Purvis v. Coleman, 1 Bosw. 321; Mangam v. Brooklyn R. Co. 36 Barb. 237; Foot v. Wiswall, 14 Johns. 304). Diligent inquiry (Carroll v. Upton, 3 N. Y. 274).

Unlawfully converted (Covell v. Hill, 6 N. Y. 381; Decker v. Mathews, 12 N. Y. 324. But see Ensign v. Sherman, 13 How. Pr. 37, 14 How. Pr. 422; Fletcher v. Calthrop, 1 New Sen. Cas. 541). Instigation and request (Ives v. Humphreys, 1 E. D. Smith, 200). Reorganization (Hyatt v. McMahon, 25 Barb. 458). That indorsements on notes were made "as surety" (Dow v. Platner, 16 N. Y. 567). Necessity (McCullough v. Moss, 5 Denio, 567)Possession (Parsons v. Brown, 15 Barb. 593). That a vessel "was not engaged in any illicit trade" (Ocean Ins. Co. v. Francis, 2 Wend. 72). That "a bill was presented for payment and payment demanded" (Graham v. Machado, 4 Duer, 514). That plaintiff became the owner by purchase (Prindle v. Caruthers, 15 N. Y. 427). That plaintiff was seized as of fee (Vigers v. Dean of St. Paul's, 14 Jur. 1017). That a woman is the widow of a particular man, naming him, or that a person is the son of another man, naming him (Reg. v. Aberdaron, 1 New Mag. Cas. 51). Reputed ownership (Edwards v. Scott, 1 Man. & G. 962, 2 Scott, N. R. 266). Sound or unsound (Lewis v. Peake, 7 Tannt. 153). What is actual, and what constructive possession (O'Callaghan v. Booth, 6 Cal. 63). Reasonable time (Fry v. Hill, 7 Taunt. 397; Pitt v. Shew, 4 Barn. & Ald. 206; Facey v. Hurdon, 3 Barn. & C. 213; Tennant v. Bell, 16 Law Jour. Rep. (M. C.) 31; Burton v. Griffiths, 11 Mees. & W. 817; Sage v. Hazard, 6 Barb. 179; Conger v. Hudson River R. Co. 6 Duer, 375; Serle v. Norton, 2 Mood. & Rob. 401. See Vantrot v. McCulloch, 2 Hilt. 272; Gallagher v. White, 31 Barb. 92; Green v. Haines, 1 Hilt. 254; Lawrence v. Ocean Ins. Co. 11 Johns. 241; Hall v. Merrill, 9 Abb. Pr. 116, 124). Whether a sale was completed or not (De Ridder v. McKnight, 13 Johns. 291). Whether or not reasonable search has been made for a lost document to authorize secondary evidence of its contents (Clark v. Owens, 18 N. Y. 435). When an undated instrument was made (Coons v. Chambers, 1 Abb. Pr. 165). Usual covenants (Bennett v. Womack, 3 Car. & P. 96). Whether an abandonment was or was not accepted (Bell v. Smith, 2 Johns. 98). Ordinary care (Aymar v. Astor, 6 Cow. 267). Seaworthy or not (Sherwood v. Ruggles, 2 Sandf. 55; Patrick v. Hallett, 1 Johns. 241; Clifford v. Hunter, 3 Car. & P. 16). Deviation (Child v. Sun Mut. Ins. Co. 3 Sandf. 26). Necessary furniture (Willson v. Ellis, 1 Denio, 462; Whitmarsh v. Angle, 3 Code Rep. 53).

Fraud (Erwin v. Voorhees, 26 Barb. 127). Usual length of a voyage (Mackay v. Rhinelander, 1 Johns. Cas. 408).

The following words and phrases have been held to imply questions of law: What constitutes an account stated (Lockwood v. Thorne, 11 N. Y. 170). The sufficiency of the notice of the dishonor of a note, when there is no dispute about the facts. (Cayuga County Bank v. Warden, 6 N. Y. 29; Dole v. Gold, 5 Barb. 490; Farmers Bank v. Vail, 21 N. Y. 487). Probable cause, reasonable cause (Bulkeley v. Keteltas, 4 Sandf. 450, 6 N. Y. 384; Ransford v. Copeland, 6 Ad. & El. 482). That a written instrument is or is not a mortgage (Fairbanks v. Bloomfield, 2 Duer, 353). Seasonable time (Bell v. Wardell, Willes, 204). Reasonable notice (Tindal v. Brown, 1 T. R. 167; Williams v. Smith, 2 Barn. & Ald. 496; Scheibel v. Fairbain, 1 Bos. & P. 388). Whether a receipt is a bailment or sale (Wadsworth v. Allcott, 6 N. Y. 64). Whether a contract has been rescinded or not (Healy v. Utly, 1 Cow. 345). Fraud (Sturtevant v. Ballard, 9 Johns. 337; Jennings v. Carter, 2 Wend. 446; Gage v. Parker, 25 Barb. 141; Erwin v. Voorhees, 26 Barb. 127; Edgell v. Hart, 9 N. Y. 213).

The following words and phrases have been held to imply questions mixed of law and fact: necessaries or not necessaries (Wharton v. Mackenzie, 5 Q. B. 606). Due diligence (Carroll v. Upton, 3 N. Y. 272). That the company was illegally associated (Ransford v. Copeland, 6 Ad. & El. 482). Duly (Gillet v. Fairchild, 4 Denio, 83; Beach v. King, 17 Wend. 197; White v. Joy, 13 N. Y. 86). "Duly convened" implies regularly convened (People v. Walker, 2 Abb. Pr. 422). Flagrant nuisances (Hentz v. Long Island R. Co. 13 Barb. 647, 657). Negligence (Purvis v. Coleman, 1 Bosw. 321). Whether or not defects in articles sold. were visible (Birdseye v. Frost, 34 Barb. 367). Due course of law (Backus v. Shipherd, 11 Wend. 629; Penniman v. Hudson, 14 Barb. 579; Thomas v. Woods, 4 Cow. 173; Cumpston v. MeNair, 1 Wend. 457). Ram, Facts, chap. 1, note.

Whether the agents of a telegraph company have used reasonable expedition in delivering an important message will ordinarily be a question of fact for a jury. Such will be the case where its solution depends upon a variety of circumstances, or where the state of the evidence is such that fair minded men might differ as to the conclusion to be drawn from it. But many cases may arise where the question, one way or the other, will be so plain that the

judge may resolve it as a question of law, instructing the jury hypothetically and leaving them to resolve any disputed question of fact. Under the strict theory concerning the independence of juries which prevails in Texas, it seems that the question is always one for the jury (Western U. Teleg. Co. v. Cooper, 1 L. R. A. 728, 71 Tex. 507, 10 Am. St. Rep. 772); but this cannot be affirmed as a general proposition of American jurisprudence. 2 Thomp. Tr. § 1530 et seq. It is therefore erroneous, in the view of that court -and the view is probably a sound one-for the court to decide this question by instructing the jury "that if a party has a known place of residence and a known place of business in a city, it is no part of the defendant's duty to hunt said party up on the streets of the city, and the failure of the defendant's messenger to hunt the party on the streets is no evidence of negligence on the part of the defendant." Nor can the court declare to the jury, as matter of law, that going twice to the office of the addressee, a practicing physician, excuses the company for liability for damages, where his residence is near by, and he is well known in the town, and the messenger knows him and knows where his residence is, but does not go there to seek him, in a case where, although he had been in the country, he had returned before the message was received at the telegraph office. Ibid.

On similar grounds, an instruction that the company is required to deliver a message only at the office of the person addressed has been held erroneous. Pope v. Western U. Teleg. Co. 9 Ill. App. 283; Thompson, Electricity, § 287. Any statements made by persons to the messenger to whom the dispatch is delivered at its destination, for the purpose of finding and delivering it to the addressee, may apply, as to the whereabouts of the latter and have been held admissible in evidence, as bearing on the question of negligence in not finding him. Western U. Teleg. Co. v. Cooper, supra. Where a telegraph company sought to excuse non-delivery on the ground that the receiver was an obscure person whom the messenger could not find, specimens of printed cards and letter heads, which he had used in his business as grocer, were regarded as pertinent to the issue, and admissible, especially after he had testified, without objection, that he so used them. Gulf, C. & S. F. R. Co. v. Miller (Tex.) 7 S. W. Rep. 653; Thompson, Electricity, $292.

Where upon a question of fact the testimony shows two wit

nesses in favor of the defendant, one witness in opposition, and where all the witnesses are equally positive and equally credible, with the story of one as probable as that of the other, if there be any difference in probability, it is in favor of the defendant. In such a case the party presenting two witnesses must prevail over the party presenting but one. Mumpton v. The Dale, 46 Fed. Rep. 670.

On appeal upon questions of fact, findings of the jury, warranted by sufficient evidence, will not be disturbed. Morganthau v. King, 15 Colo. 413.

Rea

Whether or not the case falls within the Statute of Frauds is a question of law for the court, and not a question of fact for the jury. Hayward v. Conkling, 14 N. Y. Week. Dig. 236. sonable notice is a question of law for the court. Tyng v. Theological Seminary, 14 Jones & S. 250. While it is the province of the courts to construe contracts, yet where the meaning of a contract is obscure and depends upon facts aliunde, in connection with the written language, the question of construction may be one of fact for the jury. First Nat. Bank of Springfield v. Dana, 79 N. Y. 108. Question of negligence is for the jury. Wood v. New York Cent. & H. R. R. Co. 5 N. Y. Week. Dig. 85. The question of intent is one of fact, not of law, and must be left to be deduced by the jury from all the evidence before them. The denial of intent to defraud, by the parties concerned in the commission of a wrong, is not controlling, but its effect should be left to the jury. Robert v. Strasburger, 11 N. Y. Week. Dig. 373; Rice, Colorado Code Proc. § 78, p. 190, notes.