Page:Harvard Law Review Volume 4.djvu/189

LAW AND FACT IN JURY TRIALS. 1 73 profits sometimes by the advice of a common-law jury. So courts of common law, in construing a writing, sometimes ask the jury for the mercantile meaning or understanding of it, — not because they intend to leave the decision of the question to them, but in order to profit by their opinion ; just as Lord Mansfield and others built up the commercial law by taking the opinion of special juries and their reports as to mercantile usage, and founding rules of pre- sumption upon them when they appeared to be reasonable. To aid them in the construction of writings, judges may well have the evidence of mercantile experts.^ And, on the same principle, they may take the opinion of a special jury; and may submit to any jury any proper question, that is to say, any question depending upon a judgment of matters which the jury may fairly be supposed to know more about than the court. In such cases, instead of first receiving the opinion of the jury and then deciding the point, a judge may leave the question to them with contingent instructions, e.g., that if they find that the usage, custom, understanding, or practice' of merchants is so and so, then they shall find so and so as to the interpretation of a certain contract or a certain transac- tion. A good illustration of this is found in Hawes v. Forster.^ In the great case of Lickbarrow v. Mason, where were brought in question the respective rights of an unpaid seller of goods, and of one who, in good faith, without notice and for value, had bought from the first buyer, taking an indorsement of the bill of lading, — after the case had gone to the House of Lords on a demurrer upon the evidence, and had been sent back to a new trial for informairty in the demurrer, the jury, at the new trial, in accord- ance with the judge's request, found a special verdict, stating the facts and adding the understanding and custom of merchants as to the rights of the parties under such circumstances. Thereupon the court, " understanding that the case was to be carried up," gave judgment, without reasons, for the plaintiff, who represented the sub-vendee. The case was settled, and was never carried up. Now, as regards the law upon this important point, two-thirds of the twelve judges who had been concerned in the case had been against the final opinion of the King's Bench, the one which accorded with the famous advisory opinion of Mr. Justice Buller to the Lords. Yet the law has always been considered as ^ As in Pickering v. Barkley, Style, 132. 2 I Moo. & Rob. 368; s. c. Lang. Sales, 410.