/1/ The [115] distinction between the functions of court and jury
does not come in question until the parties differ as to the
standard of conduct. Negligence, like ownership, is a complex
conception. Just as the latter imports the existence of certain
facts, and also the consequence (protection against all the
world) which the law attaches to those facts; the former imports
the existence of certain facts (conduct) and also the consequence
(liability) which the law attaches to those facts. In most cases
the question is upon the facts, and it is only occasionally that
one arises on the consequence.
It will have been noticed how the judges pass on the defendant's
acts (on grounds of fault and public policy) in the case of the
thorns, and that in Weaver v. Ward /1/it is said that the facts
constituting an excuse, and showing that the defendant was free
from negligence, should have been spread upon the record, in
order that the court might judge. A similar requirement was laid
down with regard to the defence of probable cause in an action
for malicious prosecution. /2/ And to this day the question of
probable cause is always passed on by the court. Later evidence
will be found in what follows.
There is, however, an important consideration, which has not yet
been adverted to.
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