/2/ They may take judicial cognizance of a
custom of merchants. /3/ In former days, at least, they might
inquire about it in pais after a demurrer. /4/ They may act on
the statement of a special jury, as in the time of Lord Mansfield
and his successors, or upon the finding of a common jury based on
the testimony of witnesses, as is the practice to-day in this
country. But many instances will be found the text-books which
show that, when the facts are ascertained, they soon cease to be
referred to, and give place to a rule of law.
[152] The same transition is noticeable with regard to the
teachings of experience. There are many cases, no doubt, in which
the court would lean for aid upon a jury; but there are also many
in which the teaching has been formulated in specific rules.
These rules will be found to vary considerably with regard to the
number of concomitant circumstances necessary to throw the peril
of conduct otherwise indifferent on the actor. As the
circumstances become more numerous and complex, the tendency to
cut the knot with the jury becomes greater. It will be useful to
follow a line of cases up from the simple to the more
complicated, by way of illustration. The difficulty of
distinguishing rules based on other grounds of policy from those
which have been worked out in the field of negligence, will be
particularly noticed.
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