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between such a case and that above considered, where the action was brought by the assignees of a bankrupt *against the sheriff. [*94] 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.1

In addition to those doctrines which are founded on legal fictions,2 there are some forms of action, as ejectment, trover, and detinue,3 in which the law allows, and even requires, statements to be made in the written pleadings which are at variance with the real facts of the case, and which must be regarded as mere forms which were originally intended to subserve the purposes of justice, and which are retained in conformity with ancient usage and precedent. It must be observed, moreover, that legal fictions, when sanctioned by our courts, are under their immediate control, and will be moulded by them according to reason, and in furtherance of those equitable objects, to promote which they were originally designed. The introduction, however, of fictions into the law must be considered as detrimental to it, whether regarded as a practical or as an [*95] *abstract science, and the propriety of retaining those fictitious forms and modes of pleading which originated in the subtlety of our ancestors, and are yet tolerated, may well be questioned."

Tharpe v. Stallwood, 6 Scott, N. R. 715. See also Foster v. Bates, 12 M. & W. 226; Waring v. Dewbury, Gilb. Eq. R. 223, cited 6 Scott, N. R. 725.

2 The doctrine, that a deed executing a power refers back to the instrument creating the power, so that the party is deemed to take under the deed from the grantor by whom the power was created, and not from the power, is a fiction of law; and so it was considered in Bartlett v. Ramsden, 1 Keb. 570. See also per Lord Hardwicke, C., Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 78.

3 Clements v. Flight, 16 M. & W. 42. The legal fiction of damage by loss of service in the action for seduction, seems to be an exception to the above maxim as to fictio juris. See Eager v. Grimwood, 16 L. J., Exch. 236; Grinnell v. Wells, 8 Scott, N. R. 741; Davies v. Williams, 16 L. J., Q. B. 369.

4 As to the proceedings in ejectment, see 3 Burr. 1294, 1295.

5 As to fictions in the Roman law, see Spence, Chan. Jurisd. 213, 214.

EXECUTIO JURIS NON HABET INJURIAM.
(2 Inst. 482.)

The law will not in its executive capacity work a wrong.

It was one of the rules of the Roman, as it is of our own law, that if an action be brought in a court which has jurisdiction, upon insufficient grounds or against the wrong party, no injury is thereby done for which an action can be maintained-Is qui jure publico utitur non videtur injuriæ faciendæ causâ hoc facere, juris enim executio non habet injuriam ;1 and Nullus videtur dolo facere qui suâ jure utitur,' he is not to be esteemed a wrongdoer who merely avails himself of his legal rights. On the other hand, if an individual, under colour of the law, does an illegal act, or if he abuses the process of the court to make it an instrument of oppression or extortion, this is a fraud upon the law, by the commission of which liability will be incurred.3

In a leading case, illustrative of this latter proposition, the facts were as follows:-A ca. sa. having been sued out against the Countess of Rutland, and the officers entrusted with the execution of the sheriff's warrant being *apprehensive of a rescue, the plaintiff [*96] was advised to enter a feigned action in London, according to the custom, against the said countess, to arrest her thereupon, and then to take her body in execution on the ca. sa. In pursuance of this advice, the countess was arrested and taken to the Compter, "and at the door thereof the sheriff came, and carried the countess to his house, where she remained seven or eight days, till she paid. the debt." It was, however, held, that the said arrest was not made by the force of the writ of execution, and was, therefore, illegal; "and the entering of such feigned action was utterly condemned by the whole Court, for, by colour of law and justice, they, by such feigned means, do against law and justice, and so make law and justice the author and cause of wrong and injustice.'

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We shall hereafter have occasion to consider the general doctrine respecting the right to recover money paid under compulsion. We may, however, take this opportunity of observing, that, where such compulsion consists in an illegal restraint of liberty, a contract entered into by reason thereof will be void; if, for instance, a man is under duress of imprisonment, or if, the imprisonment being law

'D. 47, 10, 13, s. 1; Hobart, 266.

2 D. 50, 17, 55.

3 See, per Pollock, C. B., Smith v. Monteith, 13 M. & W. 439.

4 Countess of Rutland's case, 6 Rep. 53.

5 See the maxim, Volenti non fit injuria, post.

ful, he is subjected to undue and illegal force and privation, and, in order to obtain his liberty, or to avoid such illegal hardship, he enters into a contract, he may allege this duress in avoidance of the contract so entered into; but an imprisonment is not deemed sufficient duress to avoid a contract obtained through the medium of its coercion, if the party was in proper custody under the regular process of a court of competent jurisdiction; and this distinction results from the above rule of law, executio juris non habet injuriam.1

*In assumpsit to recover a sum of money, which the de[*97] fendant promised to pay, in the consideration of the discharge of a third party (D.), who was in custody under a capias, duly issued, in an action depending against him, the plea, which averred, in substance, that there was not at the time of commencing such action, nor subsequently thereto, any cause of action against D., and that the writ, arrest, and detaining in custody, and the proceeding in the said action were, on the plaintiffs' part, colourable only, and not had with intent to try any doubtful question of law or fact—was held bad, since it did not show that the action against D. was wrongfully commenced that the capias was irregularly or unduly obtained-that the plaintiffs acted illegally or fraudulently in making the arrest, or from malicious motives, or that the arrest was made without reasonable or probable cause; on the ground, therefore, that D. must be taken to have been in custody under regular and legal process, and that the discharge from such custody was a sufficient consideration, judgment was given for the plaintiffs.

3

But although, as already stated, an action will not lie to recover damages for the inconvenience occasioned to a party who has been sued by another without reasonable or sufficient cause, yet, if the proceedings in the action were against A., and a writ of execution is issued by mistake against the goods of B., trespass will clearly lie, at suit of the latter, against the execution creditor, or against his *attorney, who issued execution; and where an attorney de

[*98] liberately directs the execution of a warrant, he, by so doing,

12 Inst. 482; 1 Bla. Com. 136, 137; Stepney v. Lloyd, Cro. Eliz. 646; Anon., 1 Lev. 68; Waterer v. Freeman, Hobart, 266; R. v. Southerton, 6 East, 140; Anon., Aleyn, R. 92; 2 Roll. R. 301.

2 Smith v. Monteith, 13 M. & W. 427.

3 Per Rolfe, B., 11 M. & W. 756, ante, p. 71, (1), 80, and cases cited under the maxim, ubi jus, ibi remedium, post.

4 Jarmain v. Hooper, 7 Scott, N. R. 663. As to liability of execution creditor under 8 Anne, c. 14, s. 1, see Riseley v. Ryle, 11 M. & W. 16.

5 Davies v. Jenkins, 11 M. & W. 745; Rowles v. Senior, 15 L. J., Q. B. 231, and cases there cited.

takes upon himself the chance of all consequences, and will be liable in trespass, if it prove bad.' In cases similar to the above, however, the maxim as to executio juris is not in truth strictly applicable, because the proceedings actually taken are not sanctioned by the law, and therefore the party taking them, although acting under the colour of legal process, is not protected.

CURSUS CURIE EST LEX CURIE.
(3 Bulst. 53.)

The practice of the Court is the law of the Court.

Every court is the guardian of its own records and master of its own practice: and where a practice has existed it is convenient to adhere to it, because it is the practice, even though no reason can be assigned for it;3 for an inveterate practice in the law generally stands upon principles *that are founded in justice and convenience. Hence, if any necessary proceedings in an action [*99]

be informal, or be not done within the time limited for it, or in the manner prescribed by the practice of the court, it may be set aside for irregularity. Where a defendant, in the Court of Common Pleas, applied on motion to enter satisfaction on the roll, without producing a warrant of attorney from the plaintiff, the Court refused the motion, observing, that the course in that court from time out of mind had been to require the production of the warrant; and that, getting rid of a judgment of the Court (by such entry) was so solemn a thing, that the usual course ought to be pursued, for via trita via tuta; and the courts of law will not sanction a speculative novelty without the warrant of any principle, precedent, or authority."

1 Green v. Elgie, 5 Q. B. 99; 48 E. C. L. R.

2 Per Tindal, C. J., Scales v. Cheese, 12 M. & W. 687, where it was held that a court of error cannot review the propriety of amendments made in the court below; S. P., Mellish v. Richardson, 1 Cl. & Fin. 221; Jackson v. Galloway, 1 C. B. 280; 50 E. C. L. R.; Reg. v. Justices of Denbighshire, 15 L. J., Q. B. 335; per Lord Wynford, Ferrier v. Howden, 4 Cl. & Fin. 32. But see Fleming v. Dunlop, 7 Cl. & Fin. 43. * Per Lord Ellenborough, C. J., Bovill v. Wood, 2 M. & S. 25; 15 East, 226. "The question of costs is dependent on the practice of the courts, which in this respect is arbitrary and varying;" per Parke, B., Earl of Stamford v. Dunbar, 14 M. & W. 152.

4 Per Lord Eldon, C., Buck, 279. See per Lord Abinger, C. B., Jacobs v. Layborn, 11 M. & W. 690.

5 Wood v. Hurd, 3 B. N. C. 45; 32 E. C. L. R.; 10 Rep. 142.

6 See judgment, Ex parte Overseers of Tollerton, 3 Q. B. 799; 43 E. C. L. R.

It has been remarked, moreover, that there is a material distinction. between those things which are required to be done by the common or statute law of the land, and things required to be done by the rules and practice of the court. Anything required to be done by the law of the land must be noticed by a court of error, but a court of error cannot notice the practice of another court. Moreover, "where, by

an act of Parliament, power is given to a single judge to decide a matter, his decision is not absolutely final; but the Court adopt the same rule as where he acts in the exercise of his ordinary jurisdiction ; and though the legislature says that he shall have power finally to determine a *matter, that does not mean that the practice of [*100] the Court shall be departed from."'"

In a court of equity, as in a court of law, the maxim, cursus curiæ est lex curiæ, is frequently recognised and applied. The Court will, however, as remarked in several recent cases, adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules established under different circumstances, decline to administer justice and to enforce rights for which there is no other remedy.

Lastly, with respect to criminal justice, it was forcibly and truly remarked by a learned judge in a recent case, that even where the course of practice in criminal law has been unfavourable to parties accused, and entirely contrary to the most obvious principles of justice and humanity, as well as those of law, it has been held that such practice constituted the law, and could not be altered without the authority of the Parliament."

CONSENSUS TOLLIT ERRORem.
(2 Inst. 123.)

The acquiescence of a party who might take advantage of an error obviates its effect. In accordance with this rule, if the venue in an action is laid in the wrong place, and this is done per assensum partium, with the

1 Per Holroyd, J., Sandon v. Proctor, 7 B. & C. 806; 14 E. C. L. R.; cited argument, Bradley v. Warburg, 11 M. & W. 455.

2 Per Rolfe, B., Shortridge v. Young, 12 M. & W. 7.

3 Per Lord Cottenham, C., Wallworth v. Holt, 4 My. & Cr. 635; Taylor v. Salmon, Id. 141, 142; Mare v. Malachy, 1 My. & Cr. 559.

Per Maule, J., 8 Scott, N. R. 599, 600.

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