Page:Harvard Law Review Volume 4.djvu/185

169 LAW AND FACT IN JURY TRIALS. 169 verdict is, indeed, subject to the court's revision ; but at this stage, as we see, the court asks merely that " very different ques- tion," which Lord Blackburn mentions, whether the jury could reasonably find them to be necessaries. In Makarell v. Bachelor,^ in 1597, the plaintiff sued in debt for apparel, and upon a plea of infancy, replied that the defendant " was one of the gentlemen of the chamber to the Earl of Essex, and so it was for his necessary apparel ; and it was thereupon demurred. The court held that they were to adjudge what was necessary apparel; and such suits . . . cannot be necessary for an infant, although he is a gentleman." But in Ryder v. Wombwell,^ in 1868, where a like question went to the jury, and was found for the plaintiff, the court, in granting a nonsuit on the ground that there was no evi- dence sufficient to warrant the verdict, laid down the general prin- ciple (i) that the court may always say, vjQt)QY prima facie, having regard to ** the usual and normal state of things," which is known to judges as well as to juries, certain things " may be " neces- saries ; and (2) that if evidence is offered of special circum- stances, changing the usual state of things, the question for the court is whether, upon the evidence, the jury could reasonably find them necessaries. It seems, then, to be thoroughly plain that the attributing to the jury of questions of fact, in our common-law system, is to be taken with the gravest qualifications. Much fact which is part of the issue is for the judge ; much which is for the jury is likely to be absorbed by the judge, " whenever a rule about it can be laid down." ^ As regards all of it, the jury's action may be excluded or encroached upon by the cooperation of the judge with one or both of the parties; and, as regards all, the jury is subject to the supervision of the judges in order to keep it within the limits of reason. Before passing from questions of fact, it will be well to turn for a moment to what are called " mixed questions of law and fact," such as negligence, ownership, or insanity. What shall be said of these ?^ It seems that there is no occasion to speak of them as 1 Cro. El. 583. 2 L. R. 4 Ex. 32. 8 Tindal v. Brown, i T. R. 167, per Lord Mansfield; Holmes' Com. Law, 122-9. fact.
 * Austin (Jurisp. i. 236, ed. 1873) says, " They are questions neither of law nor of