Page:Harvard Law Review Volume 4.djvu/178

162 1 62 HARVARD LAW REVIEW, Of these judicial definitions our books are full. Sometimes they begin by fixing an outside limit of what is rationally permissible, as in many of the cases about reasonable time and the like ; and then grow more precise. In this way what is reasonable notice of the dishonor of a bill grew to be fixed. Juries were resisted by the court when they sought to require notice within an hour, and, on the other hand, to support it if given within fourteen days, or within three days, when ** all the parties were within twenty minutes' walk of each other ; " ^ and so the modern rule be- came established that ordinarily notice is sufficient if given on the following day. In the case of uncertain fines in copyholds, the courts had previously gone through a like process of regulating excess, until at last, not without the aid of courts of equity, they had fixed a specific outside limit.^ 2. Very soon, as it seems, after the general practice began of allowing witnesses to testify to the jury, an interesting con- trivance for eliminating the jury came into existence, the demurrer upon evidence. Such demurrers, like others, were demurrers in law; but they had the efi"ect to withdraw from the jury all consideration of the facts, and, in their pure form, to sub- mit to the court two questions, of which only the second was, in strictness, a question of law: (i) Whether a verdict for the party who gave the evidence could be given, as a matter of legiti- mate inference and interpretation from the evidence ; (2) As a matter of law. Of this expedient, I do not observe any mention earlier than the year 1456, and it is interesting to notice that we do not trace the full use of witnesses to the jury much earlier than this. Near the end of the last century demurrers upon evidence were rendered useless in England, by the decision in the case of Gibson v. Hunter (carrying down with it another great case, that of Lickbarrow v. Mason, which, like the former, had come up to the Lords upon this sort of demurrer),^ that the party demurring must specify upon the record the facts which he admits.* That the rule was a new one is fairly plain from Pike, 49 N. H., pjJ. 436-442, and Boardman v. Woodman, 47 N. H. pp. 146-150; and the opinion of the court (Ladd, J.) in State v. Jones, 50 N. H. 369. 1 Tindal v. Brown, i T. R. pp. 168-9. and it is taken to have been the ground of the judgment.
 * Per Lord Loughborough, Doug. 724, note.
 * Gibson v. Hunter, 2 H. Bl. 187 ; Lickbarrow v. Mason, ib. 211.
 * This is the rule laid down by Eyre, C. B., in his advisory opinion to the Lords,