record to which the bill of exceptions is annexed, and to affirm or reverse the judgment of the Court below according to law.1

With respect to the mode of proceeding by writ of error, where an erroneous judgment has been given by one of the three superior courts at Westminster, it may be observed, that this is an original writ issuing out of the *Court of Chancery in the nature as

[*67] well of a certiorari to remove a record from an inferior to a

superior court (except in the case of error coram nobis or vobis), as of a commission to the judges of such superior court to examine the record, and to affirm or reverse the judgment according to law. The writ is grantable ex debito justitiæ in all cases except in treason or felony, and lies where a person is aggrieved by an error in the foundation, proceeding, judgment, or execution of a suit, provided it be an error in substance not aided at common law or by some of the statutes of jeofail.3

If, upon a judgment in the Court of Queen's Bench or Common Pleas, there be error in the process, or through the default of the clerks, and not of the Court, or where the error is in fact, and not in law,―as, where the plaintiff or defendant was a married woman at the commencement of the suit,-in these cases, the judgment shall be reversed by a writ of error returnable in the same court, and hence called a writ of error coram nobis in the Queen's Bench, and coram vobis in the Common Pleas."

Where, however, the error is in the judgment itself, and not in the process, a writ of error does not lie in the same court, but must be brought in another and superior court."

*Errors in law are common or special. The common errors [*68] are, that the declaration is insufficient in law to maintain the action, and that the judgment was given for the plaintiff instead of the defendant, or for the defendant instead of the plaintiff, in the original action. Special errors are any matter appearing on the

1 Roe d. Lord Trimlestown v. Kemmis, 9 Cl. & Fin. 749.

2 After judgment given against a defendant either at sessions or the assizes in a criminal case, if there be a substantial defect in the indictment, or error apparent on the record, such judgment may be reversed by the Court of Queen's Bench. Before, however, this writ can be sued out, it is necessary to obtain the AttorneyGeneral's fiat, which in misdemeanours on sufficient cause shown is granted as a matter of course; but in felonies it is granted only ex gratiâ. Warren's Law Studies, 2d ed. 603, 604. It seems probable that before long a court of appeal will be established by the legislature, and that an appeal will lie ex debito justitiæ in all criminal cases.

32 Wms. Saund. 101 (1).

4 Id. 101 a. 51 Chit. Arch. Pr., 8th ed. 481.

face of the record which shows the judgment to have been erroneous. But the plaintiff cannot assign error in fact and error in law together; for these are distinct things, and require different trials. The party may, however, have the benefit of this indirectly; for the Court ought to give judgment of reversal, if there be error in law, notwithstanding no error in law is assigned.3 It is also a general rule, that nothing can be assigned for error which contradicts the record.4

Lastly, with respect to an award, which, when made in pursuance of a submission to arbitration in the usual manner, is equivalent to a judicial decision upon the points at issue between the parties, the general rule, we may observe, is, that, if an arbitrator makes a mistake, which is not apparent on the face of his award, the party injured has no redress, nor is there in this respect any difference between a mistake in the law of evidence, and in other matters. If no corruption be shown, the Court will decline to interfere."

*QUI JUSSU JUDICIS ALIQUOD FECERIT NON VIDETUR DOLO [*69] 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.6

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 with

12 Wms. Saund. 101 a. q.

2 Id. 101 q.

31 Chit. Arch. Pr., 8th ed. 501. See Gregory v. Duke of Brunswick, 3 C. B. 481, 54 E. C. L. R.

Bac. Max., reg. 17; 2 Wms. Saund. 101 q; Yelv. 33.

5 See per Pollock, C. B., Hagger v. Baker, 14 M. & W. 10; Phillips v. Evans, 12 M. & W. 309; Fuller v. Fenwick, 16 L. J., C. P., 79. See also Rees v. Waters, 16 M. & W. 263.

6 This maxim, which should be read in connexion with that immediately preceding, is derived from the Roman law, see D. 50, 17, 176, s. 1.

7 See Prentice v. Harrison, 4 Q. B. 852; 45 E. C. L. R.; Brown v. Jones, 15 M. & W. 191.

& See Tinniswood v. Pattison, 3 C. B. 243, 54 E. C. L. R.; Factum a judice quod ad officium ejus non pertinet ratum non est: D. 50, 17, 170.

out 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.1

2

Accordingly, in Watson v. Bodell, it was held that the messenger of a district court of bankruptcy, acting under an order, which the commissioner of that court had no jurisdiction to make, was liable in trespass; and in Van Sandau v. Turner,3 the principle above laid down was applied to the case of parties justifying under a warrant *issued by the Judge of the Court of Review in Bankruptcy. [*70] 4 In Thomas v. Hudson, which was an action against the keeper of the Queen's prison for an escape, it was held that the defendant, who had discharged the prisoner from custody, under an order of one of the Commissioners of the Court of Bankruptcy, acting judicially, in a matter over which he had jurisdiction, was protected by such order; and, in the great case of Gosset v. Howard,' before the Court of Exchequer Chamber, in which all the authorities relating to justification under warrants will be found collected, it was held, that the warrant of the Speaker of the House of Commons, having issued in a matter over which the House had jurisdiction, was to be construed on the same principle as a mandate or writ issuing out of a superior court acting according to the course of common law, and that it afforded a valid defence to an action for assault and false imprisonment brought against the Serjeant-at-Arms, who acted in obedience to such warrant.

In the last-mentioned case it will be observed that the matter in respect of which the warrant issued was admitted to be within the jurisdiction of the House, and it is peculiarly necessary to notice this, because it will be remembered that, in the previous case of Stockdale v. Hansard," it was held to be no defence in law to an action for publishing a libel, that the defamatory matter was part of a document, which was, by order of the House of Commons, laid before the House, and thereupon became part of the proceedings of

'Marshalsea case, 10 Rep. 70; Taylor v. Clemson, 2 Q. B. 1014, 1015, 42 E. C. L. R.; S. C., 11 Cl. & F. 610; Morrell v. Martin, 4 Scott, N. R. 313, 314; 36 E. C. L. R.; Jones v. Chapman, 14 M. & W: 124; Baylis v. Strickland, 1 Scott, N. R. 540; 36 E. C. L. R.; Marshall v. Lamb, 5 Q. B. 115; 48 E. C. L. R.

2 14 M. & W. 57. See also In re Lord, 16 L. J., Exch., 118.

3 6 Q. B. 773; 51 E. C. L. R. See also Ex parte Van Sandau, 1 Phil. 445, 605.

4 14 M. & W. 353, since affirmed in error; Savory v. Chapman, 11 A. & E. 829;

39 E. C. L. R.

5 16 L. J., Q. B. 345, reversing the judgment in the Court below.

69 A. & E. 1, 36 E. C. L. R.

the House, and which was afterwards, by order of the House, printed and published by the defendant. The decision in this case resulted from the opinion entertained *by the Court being adverse to the existence of the privilege under which the defendant [*71] sought to justify the alleged wrongful act, and, in consequence of this decision, the stat. 3 & 4 Vict. c. 9, was passed, which enacts, that all proceedings, whether by action or criminal prosecution, similar to the above, shall be stayed by bringing before the Court or judge a certificate, under the hand of the Chancellor or of the Speaker of the House of Commons, to the effect, that the publication in question is by order of either House of Parliament, together with an affidavit verifying such certificate.

Where an action is brought in a court of limited jurisdiction, and the defendant pleads to the jurisdiction, the Court must necessarily decide, in the first instance, 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 will render themselves liable to an action.1

A very recent case2 will serve to illustrate the above general and very important doctrine :-The commissioners 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 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 [*72] 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 serjeant 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,

1 Per Lord Abinger, C. B., Wingate v. Waite, 6 M. & W. 746.

2 Andrews v. Marris, 1 Q. B. 3, 16, 17; 41 E. C. L. R., recognised Carratt v. Morley, Id. 29. As to the liability of the party at whose suit execution issued, see Carratt v. Morley, supra. Coomer,v. Latham, 16 L. J., Exch. 175; Ewart v. Jones, 14 M. & W. 774; Green v. Elgie, 5 Q. B. 99; 48 E. C. L. R.

because the subject-matter of the suit was within the general jurisdiction of the commissioners, 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 show the judgment in pleading as well as the writ, but for the latter it is enough to show the writ only.'

The case of a justification at common law by a constable under the warrant of a justice of the peace offers a further illustration of the rule now under 'consideration; for if the warrant issued by the justice of the peace, in the shape in which it is given to the officer, is such that the party may lawfully resist it, or, if taken upon it, may be released upon habeas corpus, it is a warrant which, in that shape, the magistrate had no jurisdiction to issue, and which, therefore, the officer need not have obeyed, and which, at common law, on the principle laid down, will not protect him against the action of the party injured. Where the cause is expressed but imperfectly, the officer may not be expected *to judge as to the sufficiency [*73] of the statement; and, therefore, if the subject-matter be within the jurisdiction of the magistrate, he may be bound to execute it, and as a consequence, be entitled to protection; but where no cause is expressed, there is no question as to the want of jurisdiction.3

In accordance with these remarks, a plea of justification will be bad, if it does not show 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 show that the warrant was granted in a case which fell within

I See Cotes v. Michill, 3 Lev. 20; Moravia v. Sloper, Willes, 30, 34.

2 Reg. v. Tooley, 2 Lord Raym. 1296, 1302.

Per Coleridge, J., 14 L. J., Q. B. 378.

4 See a plea of justification under stat. 1 & 2 Vict. c. 74; Edmunds v. Pinneger, 7 Q. B. 558; 53 E. C. L. R.