So, where a question arises as to the admissibility of evidence, the facts upon which its admissibility depends are to be determined by the judge, and not by the jury. If the opposite course were adopted, it would be equivalent to leaving it to the jury to say whether a particular thing were evidence, or not (y). There are also certain statutes which give to the Court in particular cases cognizance of certain facts (z); and there is another and distinct class of cases, in which the Court, having a discretionary power over its own process, is called upon to depart from the usual course, upon the suggestion of some matter which renders such departure expedient or essential for the purposes of justice, as where a venue is to be changed because an impartial trial cannot be had, or where the sheriff is a party. In such a case it is manifest that the suggestion cannot be traversed, for to whom should the writ be directed for trial of the fact? Surely not to the sheriff of the county, to be tried by a jury of that county whether they are impartial, or to be tried by a jury of his own selection whether he be a party? These cases, therefore, imply the necessity of a preliminary determination by the Court itself to whom the process should be directed (a). It remains to add, that, where the judge misconceives his Misdirection. duty, and presents the question at issue to the jury in too limited and restrained a manner, and where, consequently, that which ought to have been put to them for the exercise of their judgment upon it as a matter of fact or of 280; Co. Litt. 56. b. See Burton (z) See some instances, judgment, Watson v. Quilter, 11 M. & W. 768. (a) Judgment, Watson v. Quilter, 11 M. & W. 768, 769. inference, is rather left to them as matter of law, to which they feel bound to defer, the Court in banco will remedy the possible effect of such misdirection by granting a new trial (b). So, likewise, in a penal action, the Court will grant a new trial when they are satisfied that the verdict is in contravention of law, whether the error has arisen from the misdirection of the judge or from a misapprehension of the law by the jury, or from a desire on their part to take the exposition of the law into their own hands (c). QUI JUSSU JUDICIS ALIQUOD FECERIT NON VIDetur Dolo MALO FECISSE, QUIA PARERE NECESSE EST. (10 Rep. 76). -Where a person does an act by command of one exercising judicial authority, the law will not suppose that he acted from any wrongful or improper motive, because it was his bounden duty to obey. Where a Court has jurisdiction of the cause, and proceeds inverso ordine, or erroneously, then the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, will not be liable to an action. But when the Court has not jurisdiction of the cause, then the whole proceeding is coram non judice, and actions will lie against the above-mentioned parties without any regard to the precept or process; and in this case it is not necessary to obey one who is not judge of the cause, any more than it is to obey a mere stranger, for the rule is, judicium à non suo judice datum nullius est momenti (d). (b) See Edwards v. Scott, 2 Scott, N. R., 266, 271. (c) Attorney-General v. Rogers, 11 M. & W. 670. (d) The Marshalsea case, 10 Rep. 70; cited Taylor v. Clemson, 2 Q. B. Further, suppose an action is brought in a court where there is a limited jurisdiction, and the defendant pleads to the jurisdiction, the Court must decide whether they have jurisdiction or not; and, if they decide that they have jurisdiction in a case where they clearly have no pretence for it, and give judgment against the defendant, and act on that decision, they may be liable to an action (e). officer of in A very recent case (f) will serve to illustrate the above Example: general and very important doctrine-The commissioners ferior court. of a court of requests ordered a debt claimed by the plaintiff to be paid by certain instalments, "or execution to issue." The clerk of the court, on default of payment, and on application made to him by the plaintiff, issued a precept for execution without the further intervention of the Court. It was held, that the commissioners were required, when acting on such default, to execute judicial powers, which could not be delegated; and, therefore, that the clerk who made such precept was liable in trespass for its execution, though the proceeding was conformable to the practice of the court, inasmuch as the court could not institute such a practice; but it was further held, that the sergeant who executed the precept, and who was the ministerial officer of the commissioners bound to execute their warrants, having no means whatever of ascertaining whether they issued upon valid judgments, or were otherwise sustainable or not, was well defended by it, because the subject-matter of the suit was within the general jurisdiction of the com 1014, 1015; Morrell v. Martin, 4 Scott, N. R., 313, 314; Baylis v. Strickland, 1 Scott, N. R., 540. As to the liability of servants of the Crown, justices, and others, see the cases collected, Broom, Parties to Ac tions, pp. 268-273. (e) Per Lord Abinger, C. B., Wingate v. Waite, 6 M. & W. 746. (f) Andrews v. Marris, 1 Q. B. 3, 16, 17, recognised Carratt v. Morley, Id. 29. E Constable. missioners, and the warrant appeared to have been regularly issued. The Court observed, that his situation was exactly analogous to that of the sheriff in respect of process from a superior court; and that it is the well-known distinction between the cases of the party and of the sheriff or his officer, that the former, to justify his taking body or goods under process, must shew the judgment in pleading as well as the writ, but for the latter it is enough to shew the writ only (g). The case of a justification at common law (h) by a constable under the warrant of a justice of the peace offers a further illustration of the rule now under consideration; for the plea is bad, if it does not shew that the justice had jurisdiction over the subject-matter upon which the warrant is granted; and, generally, when a limited authority is given, if the party to whom such authority is given extends the exercise of his jurisdiction to objects not within it, his warrant will be no protection to the officer who acts under it; and, by necessary consequence, where the officer justifies under a warrant so granted by a court of limited jurisdiction, he must shew that the warrant was granted in a case which fell within such limited jurisdiction (i). It must be observed, moreover, that, where an officer, for whom the writ or warrant of the Court alone would have been a sufficient justification, joins in pleading with the party for whom it would not, and who can only defend himself on the validity of the judgment or proceeding, he, by so doing, forgoes the benefit of the warrant (k); and that where, (g) See Cotes v. Michill, 3 Lev. 20; Moravia v. Sloper, Willes, 30, 34; post, p. 55. (h) As to the stat. 24 Geo. 2, c. 44, for the protection of constables, see p. 51. (i) Morrell v. Martin, 4 Scott, N. R. 313, 316. See Taylor v. Clemson (in error), 2 Q. B, 978. (k) Phillips v. Biorn, 1 Stra. 509; Smith v. Bouchier, 2 Stra. 993, cited 1 Q. B. 17. in so pleading, he unnecessarily sets out the whole proceedings, he will be bound by any defects which may be apparent on the plea (1). Effect of sta tute 24 Geo. By stat. 24 Geo. 2, c. 44, s. 6, it is enacted, that no action shall be brought against any constable, headborough, 2, c. 4+. or other officer (m), or against any person or persons acting by his order or in his aid, for anything done in obedience to any warrant under the hand or seal of any justice of the peace until demand shall have been made of the perusal and copy of such warrant, and the same refused or neglected for the space of six days after such demand; that in case, after such demand and compliance therewith, any action shall be brought against such constable, &c., for any such cause as aforesaid, without making the justice or justices who signed or sealed the said warrant defendant or defendants, then, on producing or proving such warrant at the trial, the jury shall give their verdict for the defendant or defendants, notwithstanding any defect of jurisdiction in such justice or justices; and if such action be brought against the justice and constable jointly, then, on proof of such warrant, the jury shall find for such constable, notwithstanding such defect of jurisdiction as aforesaid: and this statute extends as well to cases in which the justice has acted without jurisdiction, as where the warrant which he has granted is improper (n). It should be observed, however, that the officer must shew that he acted in obedience to the warrant (0), and can (1) Morse v. James, Willes, 122, cited 1 Q. B. 17. (m) See 2 Selw. N. P. 10th ed. 916, n. (8). This section does not extend to actions of assumpsit, Id. 917; or of replevin, Fletcher v. Wilkins, 6 East, 283. (n) Per Lord Eldon, C. J., Price v. Messenger, 2 B. & P. 158; Atkins v. Kilby, 11 A. & E. 777; 2 Selw. N. P. 10th ed. 918. (0) See Hoye v. Bush, 2 Scott, N. R. 86. |