and the inferences warranted or not, there was reasonable and probable ground for the prosecution, or the reverse; and this rule holds, however complicated and numerous the facts may be.1

In cases of libel, also, it has been the course for a long time for the judge, first to give a legal definition of the offence, and then to leave it to the jury to say, whether the facts necessary to constitute that offence are proved to their satisfaction; and this course is adopted, whether the libel is the subject of a criminal prosecution or of a civil action; and although the judge may, as a matter of advice to them in deciding that question, give his own opinion as to the nature of the publication, yet he is not bound to do so as a matter of law.3

[*81]

*Again, the amount of costs is a matter wholly within the province of the Court to determine in those cases where a party is entitled to them, but the right to costs is given by the statute law. Now, where the amount merely depends on a fact which it is unnecessary to notice on the record,-as, for instance, where a successful plaintiff or defendant is entitled to double costs,-the Court may award them on the taxation; but where the right to any costs is in question, and depends upon a fact the determination of which is not by the statute law vested in the Court, and which must be stated on the record to justify the award of costs contrary to the usual course, the fact, if the opposite party insists upon it, ought to be tried by a jury.

The maxim under consideration may be further illustrated by the ordinary case of an action, for the price of goods supplied to the defendant's wife. Here the real question is, whether the wife was or was not authorized by the husband to order the goods in question, and it is general for the jury to say whether the wife had any such authority, and whether the plaintiff, who supplied the goods, must not have known that the wife was exceeding the authority given her in pledging the husband's credit. So, in an action against an attorB. 158; James v. Phelps, 11 A. L. E. 483; 39 E. C. L. R.; Delegal v. Highley, 3 Bing., N. C. 950.

1 Panton v. Williams, 2 Q. B. 169, 194; 42 E. C. L. R.; cited argument, Peck v. Boys, 7 Scott, N. R. 441; Michell v. Williams, 11 M. & W. 205. See Bushell's case, Vaugh. R. 147; Ewart v. Jones, 14 M. & W. 774.

2 See particularly Gathercole v. Miall, 15 M. & W. 319.

3 Parmiter v. Coupland, 6 M. & W. 105. See also Padmore v. Lawrence, 11 A. & E. 380; 39 E. C. L. R.

Judgment, Watson v. Quilter, 11 M. & W. 767.

5 Per Parke, B., Lane v. Ironmonger, 13 M. & W. 370.

ney, for negligence, the question of negligence is one of fact for the jury; and, although whether there is any evidence is a question for the judge, yet whether the evidence is sufficient is a question for the jury; and very many other instances will readily suggest *themselves to the reader, in which the same comprehensive [*82] and fundamental principle is equally applicable.3

But, although the general principle is as above laid down, there are many exceptions to it. Thus, all questions of reasonablenessreasonable cause, reasonable time, and the like—are, strictly speaking, matters of fact, even where it falls within the province of the judge or the Court to decide them."

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.

6

There are also certain statutes which give to the Court in particular cases cognizance of certain facts; 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 [*83] *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

I Hunter v. Caldwell, 16 L. J., Q. B. 274; Hayne v. Rhodes, 15 Id. 137.

2 Per Buller, J., Carpenters' Company v. Hayward, Dougl. 375. It is also for the jury and not for the Court to determine the amount of damage occasioned by a tort, and the Court will not interfere unless they are grossly disproportioned to the injury sustained, see Thompson v. Gordon, 15 M. & W. 610; Williams v. Currie, 1 C. B. 841; 50 E. C. L. R.; Armytage v. Haley, 4 Q. B. 917; 45 E. C. L. R.; Lowe v. Steele, 15 M. & W. 380; Strutt v. Falar, 16 M. & W. 249.

3 See the Law Review, vol. I. No. 1. The assent of an executor to a bequest, is not a matter of law but a question of fact for the jury; Mason v. Farnell, 12 M. & W. 674.

4 Judgment, Watson v. Quilter, 11 M. & W. 767.

5 See per Lord Abinger, C. B., Startup v. Macdonald, 7 Scott, N. R. 280; Co. Litt. 566; Burton v. Griffiths, 11 M. & W. 817.

Per Alderson, B., Bartlett v. Smith, 11 M. & W. 486. See 1 Phil. Ev. 9th ed. 2. 7 See some instances mentioned, judgment, Watson v. Quilter, 11 M. & W. 768.

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.1

It remains to add, that, where the judge misconceives his 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 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.2

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.3

And we may observe, in conclusion, that the Court in banco always shows its anxiety to correct any miscarriage which may have been occasioned by an infraction of either branch of the maxim, ad quæstionem legis respondent judices ad quæstionem facti respondent juratores, acting in accordance with the principle emphatically laid down by Lord Hardwicke, *in these words: "It is of the [*84] greatest consequence to the law of England and to the subject, that these powers of the judge and jury be kept distinct, that the judge determine the law, and the jury the fact; and if ever they come to be confounded it will prove the confusion and destruction of the law of England."

? II. 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 show the mode in which justice

I Judgment, Watson v. Quilter, 11 M. & W. 768, 769.

2 See Edwards v. Scott, 2 Scott, N. R. 266, 271; per Lord Kenyon, C. J., Wilson v. Rastall, 4 T. R. 753.

3 Attorney-General v. Rogers, 11 M. & W. 670.

Rex v. Poole, Cas. temp. Hardw. 28.

is administered in our courts, and which relate rather to the rules of practice than to the legal principles observed there.

NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA.
(12 Rep. 113.)

No man can be judge in his own cause.

It is a fundamental rule in the administration of justice, that a person cannot be judge in a cause wherein he is interested: nemo sibi esse judex vel suis jus dicre debet; and, therefore, in the reign of James I., it was solemnly adjudged that the king cannot take any cause, whether civil or criminal, out of any of his courts, and give judgment upon it himself; but it must be determined and adjudged in some court of justice according to the law and custom of England; and in the case referred to, "the judges *informed the king that no king, after the conquest, assumed [*85] to himself to give any judgment in any cause whatsoever which concerned the administration of justice; but these were solely determined in the courts of justice;"3 and Rex non debet esse sub homine sed sub Deo et lege.

It is, then, a rule always observed in practice, and of the application of which instances not unfrequently occur, that, where a judge is interested in the result of a cause, he cannot, either personally or by deputy, sit in judgment upon it. If, for instance, a plea allege a prescriptive right vested in the lord of the manor to seize cattle damage feasant, and to detain the distress until fine paid for the damages, at the lord's will, this prescription will be void, and the plea consequently bad; "because it is against reason, if wrong be done any man, that he thereof should be his own judge ;" and it is a maxim of law, that aliquis non debet esse judex in propriâ causâ quia non potest esse judex et pars."

Neither can a justice of the peace, who is interested in a matter pending before the Court of Quarter Sessions, take any part in the proceedings, unless indeed all parties know that he is interested, and

3 Prohibitions del Roy, 12 Rep. 63, cited Bridgman v. Holt, 2 Show. P. Ca. 126. 4 Fleta, fo. 2, c. 5.

5 Brooks v. Earl of Rivers, Hardr. 503; Earl of Derby's case, 12 Rep. 114; per Holt, C. J., Anon. 1 Salk. 396; Chitt. Gen. Pr., vol. 3, p. 9.

6 Litt. s. 212.

7 Co. Litt. 141, a.

consent, either tacitly or expressly, to his presence or interference.1 In such a case, it has been recently held that the presence of one interested magistrate will render the court improperly constituted,

and vitiate the proceedings; it being no answer to the objec

2

[*86] tion, that there was a majority in favour of the decision, without reckoning the vote of the interested party. And, on the same principle, where a bill was preferred before the grand jury at the assizes against a parish for non-repair of a road, the liability to repair which was denied by the parish, the Court of Queen's Bench granted a criminal information against the parish, on the ground that two members of the grand jury were large landed proprietors therein, took part in the proceedings on the bill, and put questions to the witnesses examined before them; one of them, moreover, having stated to the foreman that the road in question was useless, and the bill having been thrown out by the grand jury.3

ACTUS CURIE NEMINEM GRAVABIT.
(Jenk. Cent. 118.)

An act of the Court shall prejudice no man.

Where a case stands over for argument from term to term, on account of the multiplicity of business in the court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and, therefore, if one party to an action die during curia advisari vult, judgment may be entered nunc pro tune, for the delay is the act of the Court, and therefore neither party should suffer for it."

[*87] *In a recent case, involving issues both of law and fact,

the issues of fact were tried in the month of August, 1843, a

1 Reg. v. The Cheltenham Commissioners, 1 Q. B. 467; 50 E. C. L. R., and cases there cited.

2 Reg. v. Justices of Hertfordshire, 6 Q. B. 753; 60 E. C. L. R.

3 Reg. v. Upton, St. Leonard's, 16 L. J., M. C., 84. See Esdaile v. Lund, 12 M. & W. 734. As to the validity of an award made by an interested party, see Watson, Arbitr. 3d ed. 85.

4 Per Garrow, B., 1 Y. & J. 372.

5 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. Secus, where the delay is that of the party, Fishmongers' Company v. Robertson, 16 L. J., C.