only justify that which he lawfully did under it (p); and where the justice cannot be liable, the officer is not entitled to the protection of the statute; for the act was intended to make the justice liable instead of the officer: where, therefore, the officer makes such a mistake as will not make the justice liable, the officer cannot be excused (g).

Lastly, the liability of a sheriff acting in his ministerial capacity depends in very many cases on the above maxim; but, in this place, we shall only refer to the recent case of Stockdale v. Hansard (r), as peculiarly worthy of consideration in connection with that important subject.

SII. THE MODE OF ADMINISTERING JUSTICE.

Having in the last section considered some maxims relating peculiarly to the judicial office, the reader is here presented with a few which have been selected, in order to shew the mode in which justice is administered in our Courts, and which relate rather to the rules of practice than to the legal principles observed there.

ACTUS CURIE NEMINEM GRAVABIT. (Jenk. Cent. 118).—An act of the Court shall prejudice no man.

Hence, if one party to an action die during a curia advisari vult, judgment may be entered nunc pro tunc, for the delay is the act of the Court, and therefore neither party should

(r) Peppercorn v. Hofman, 9 M.

& W. 618, 628.

(q) 2 Selw. N. P., 10th ed., 918; 1 Chit. Stats. 649 (y). As to the ope

ration of sect. 1, Id. 645 (/).

(r) 9 A. & E. 1. But see also stat. 3 & 4 Vict. c. 9.

suffer for it (a); but the practice has been to allow this to be done only where the delay has been so occasioned, and not where it arises from the act or laches of the party making application (b).

ACTUS LEGIS NEMINI EST DAMNOSUS.
An act in law shall prejudice no man (c).

(2 Inst. 287).

Thus, the general principle is, that, if a man marry his debtor, the debt is thereby extinguished (d): but still a case may be so circumstanced as not to come within that rule; for instance, a bond conditioned for the payment of money after the obligor's death, made to a woman in contemplation of the obligor's marrying her, and intended for her benefit if she should survive, is not released by the marriage, but an action will lie at her suit against the executor; and this results from the principle that the law will not work a wrong, for the bond was given for the purpose of making a provision for the wife in the event of her surviving the obligor, and it would be iniquitous to set it aside on account of the marriage, since it was for the very event of the marriage that the bond was meant to provide (e).

(a) Cumber v. Wane, 1 Stra. 425; per Tindal, C. J., Harrison v. Heathorn, 6 Scott, N. R. 797; Toulmin v. Anderson, 1 Taunt. 384; Jenk. Cent. 180, and cases cited 1 Smith, L. C. 147, n. (b).

(b) Vaughan v. Wilson, 4 B. N. C. 116; Green v. Cobden, 4 Scott, 486; Evans v. Rees, 12 A. & E. 167.

(c) 6 Rep. 68.

(d) 1 Inst. 264. b.

(e) Milbourn v. Ewart, 5 T. K. 381,385; Cage v. Acton, 1 Ld. Raym. 515; Smith v. Stafford, Hobart, 216. See another instance of rule, Calland v. Troward, 2 H. Bla. 324, 334; and see Nadin v. Battie, 5 East, 147.

IN FICTIONE JURIS SEMPER EQUITAS EXISTIT. (11 Rep. 51). -A legal fiction is always consistent with equity.

Fictio juris is defined to be a legal assumption that a thing is true which is either not true or which is as probably false as true(ƒ); and the rule on this subject is, that the Court will not endure that a mere form or fiction of law, introduced for the sake of justice, should work a wrong contrary to the real truth and substance of the thing (g). Hence, if a man disseises me, and during the disseisin cuts down the trees or grass or the corn growing upon the land, and afterwards I re-enter, I shall have an action of trespass against him vi et armis, for after my regress the law as to the disseisor and his servants supposes the freehold always to have continued in me; but, if my disseisor makes a feoffment in fee, gift in tail, or lease for life or years, and afterwards I re-enter, I shall not have trespass vi et armis against those who came in by title; for this fiction of the law, that the freehold always continued in me, shall not have relation to make him who comes in by title a wrongdoer vi et armis, but in this case I shall recover all the mesne profits against my disseisor (h). So, by fiction of law, all judgments were formerly supposed to be recovered in term, and to relate to the first day of the term, but in practice judgments were frequently signed in vacation; and it was held, that, where the purposes of justice required that the true time when the judgment was obtained should be made appear, a party

(f) Bell's Dict and Dig. of Scotch Law, p. 427.

(g) Per Lord Mansfield, C. J., Johnson v. Smith, 2 Burr. 950. See 10 Rep. 40; Id. 89. As to fictions

in pleading, see Steph. Plead. 5th ed., 489, 490.

(h) Liford's case, 11 Rep. 51; Hobart, 98.

might shew it by averment in pleading; and it was observed generally, that, wherever a fiction of law works injustice, and the facts, which by fiction are supposed to exist, are inconsistent with the real facts, a court of law ought to look to the real facts (2). Nor will a legal fiction be raised so as to operate to the detriment of any person, as in destruction of a lawful vested estate, for fictio legis inique operatur alicui damnum vel injuriam (k). The law does not love that rights should be destroyed, but, on the contrary, for the supporting of them invents notions and fictions (7).

rule.

However, an extraordinary instance of the doctrine of Exceptions to relation (which is a legal fiction (m)) working gross injustice, may be mentioned in a rule which formerly existed, that when the commencement of an act of Parliament was not directed to be from any particular time, it should take effect from the first day of the session in which the act was passed, which might be weeks, if not months, before the act received the Royal sanction, or even before the bill was brought into Parliament (n); but this rule was abolished by stat. 33 Geo. 3, c. 13, which enacted that the time when an act receives the Royal assent shall be the date of its commencement, where no other is provided.

cheriff.

Again, the state of the law prior to the recent stat. 2 & 3 Liability of Vict. c. 29, seems to offer another exception to the above rule. For, previously to the above-mentioned statute, a sheriff was held liable in trover, who seized and sold the goods of a bankrupt under a fi. fa. before commission issued, but after an act of bankruptcy of which he had no notice (0),

(i) Lyttleton v. Cross, 3 B. & C. 317, 325.

(k) 3 Rep. 36; per Cur., Waring v. Dewbury, Gilb. Eq. R. 223.

(1) Per Gould, J., Cage v. Acton, 1 Ld. Raym. 516, 517. (m) 3 Rep. 28.

(n) 2 Dwarr. Stats. 682. See an in

stance of the application of this rule,
Att.-Gen. v. Panter, 6 Bro. P. C.
486.

(0) Carlisle v. Garland, 7 Bing.
298; S. C. (in error), 2 Cr. & M.
31; Balme v. Hutton, 9 Bing. 471;
S. C. (in error), 1 Cr. & M. 262;
Cooper v. Chitty, 1 Burr. 20.

and the decisions establishing this position and proceeding, on the well-known doctrine by which the title of the assignees is held to relate back to the act of bankruptcy, were unquestionably productive of great hardship to individuals. It was, however, established, that trespass would not lie under the above circumstances, and the principle on which the distinction proceeded was, that the quality of an act is not to be altered by a mere fiction of law, and that the taking of the goods by the sheriff, which was lawful at the time, should not be made a trespass by relation; but that, by disposing of the goods, which, by reason of subsequent events, had ceased to be the goods of the debtor, and had become the property of the assignees, he committed a conversion for which he was liable in trover (p).

In attempting, however, to establish an analogy between cases apparently founded on the above doctrine, that a party is not to be made a trespasser by relation, considerable caution is necessary; for instance, in a very recent case, the question arose, whether or not trespass was maintainable by an administrator for an act done between the death of the intestate and the grant of the letters of administration; and reliance was placed upon a supposed analogy between such a case and that above considered, where the action was brought by the assignees of a bankrupt against the sheriff. But the Court held, that trespass would well lie, and that the principle of the two cases was essentially different; for, in the one case, the sheriff did what was justifiable and lawful in itself at the time; whereas, in the other, the defendants were guilty of an act having the quality of a trespass at the very time when it was committed (q).

(p) Supra, n. (o). As to the operation of 2 & 3 Vict. c. 29, see Nelstrop v. Scarisbrick, 6 M. & W. 684; Belcher v. Magnay, 12 M. & W. 102; Cheston v. Gibbs, Id. 111; Un

win v. St. Quintin, 11 M. & W. 277.

(4) Tharpe v. Stallwood, 6 Scott, N. R. 715. See also Waring v. Dewbury, Gilb. Eq. R. 223, cited Id. 725.