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 (a). 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 writ of error, returnable in the same court, and hence called writ of error coram nobis in the Queen's Bench, and coram vobis in the Common Pleas (b). 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 (c). Errors in law are common or special. The common errors 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 face of the record which shews the judgment to have been erroneous (d). But the plaintiff cannot assign error in fact and error in law together; for these are distinct things, and require different trials (e). 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 (a) 2 Wms. Saund. 101 (1). (b) Id. 101 a. (c) 1 Chit. Arch. Pr., 7th ed., 351. (d) 2 Wms. Saund. 101 a, q. in law is assigned (f). It is also a general rule, that nothing can be assigned for error which contradicts the record (g). AD QUESTIONEM FACTI NON RESPONDENT JUDICES, AD QUESTIONEM LEGIS NON RESPONDENT JURATORES. (8 Rep. 308). It is the office of the judge to instruct the jury in points of law-of the jury to decide on matters of fact (h). The object in view on the trial of a cause is to find out, by due examination, the truth of the point in issue or question between the parties, whereupon judgment may be given. For ex facto jus oritur-the law arises out of the fact. If the fact be perverted or misrepresented, the law which arises thence will unavoidably be unjust or partial; and, in order to prevent this, it is necessary to set right the fact and establish the truth contended for, by appealing to some mode of probation or trial which the law of the country has ordained for a criterion of truth and falsehood (). As the question, then, between the parties is twofold, so is the trial thereof; for, either it is quæstio juris, which shall be tried by the judges upon demurrer, special verdict, or bill of exceptions, or it is quæstio facti, the truth of which shall be determined by the jury (k). (f) 1 Chit. Arch. Pr., 7th ed., 370. (g) Bac. Max., reg. 17; 2 Wms. Saund. 101 q. (h) Co. Litt. 295. b.; 9 Rep. 13; Bishop of Meath v. Marquis of Winchester, 3 B. N. C. 217; Bushell's case, Vaugh. R. 149. (i) 2 Inst. 49; 3 Bla. Com. 329, 330. (k) Abbot of Strata Marcella's case, 9 Rep. 13, 25; Co. Litt. 125. a.; Bushell's case, Vaugh. R. 143, 144. If facts are stated by the jury to raise a question of law on the record, that is a special verdict; but it does not follow, merely because a jury choose to return their verdict only in particular words, instead of saying aye or no, that the verdict is a special Per Patteson, J., Scales v. one. Examples shewing application of rule. A few instances will suffice to shew the application of the above rule. Thus, there are two requisites to the validity of a deed: 1st, that it be sufficient in law, on which the Court shall decide; 2ndly, that certain matters of fact, as sealing and delivery, be duly proved, on which it is the province of the jury to determine (7). So, where interlineations or erasures are apparent on the face of a deed, it is now the practice to leave it to the jury to decide whether the rasing or interlining was before the delivery (m). Again, the construction of all written instruments belongs to the Court alone, whose duty it is to construe all such instruments as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the Court either absolutely, if there be no words to be construed, as words of art or phrases used in commerce, and no surrounding circumstances to be ascertained, or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law; for a misconstruction by the Court is the proper subject, by means of a bill of exceptions, of redress in a court of error, but a misconstruction by the jury cannot be set right at all effectually (n). For instance, the construc Key, 11 A. & E. 825. Nor will the (m) Co. Litt. 225. b. See Doe d. Fryer v. Coombs, 3 Q. B. 687; Alsager v. Close, 10 M. & W. 576. It is incumbent on the plaintiff to give some evidence of the circumstances under which the alteration of a bill of exchange took place. See Clifford v. Lady Parker, 3 Scott, N. R., 233, and cases there cited; Cariss v. Tattersall, Id. 257. (n) Per Parke, B., delivering the judgment of the Court, Neilson v. tion of a doubtful document given in evidence to defeat the Statute of Limitations is for the Court, and not for the jury: if it be explained by extrinsic facts, from which the intention of the parties may be collected, they are for the consideration of the jury (0). dictment. So, in an action for indicting maliciously and without Malicious inprobable cause, the question of probable cause is a mixed proposition of law and fact: whether the circumstances alleged to shew it probable or not probable are true and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law (p). It therefore falls within the legitimate province of the jury to investigate the truth of the facts offered in evidence, and the justice of the inferences to be drawn from such facts; whilst, at the same time, they receive the law from the judge, that, according as they find the facts proved or not proved, 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 (q). In cases of libel, also, it has been the course for a long Libel, &c. 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; Harford, 8 M. & W. 823. Per (0) Morrell v. Frith, 3 M. & W. 402; Doe d. Curzon v. Edmonds, 6 M. & W. 295. (p) Johnstone v. Sutton (in error), 1 T. R. 544, 545, 547; Blachford v. Dod, 2 B. & Ad. 179; Reynolds v. (q) Panton v. Williams, 2 Q. B. rule. 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 (r). a 人 One more instance may be given of the application of the above general rule: thus, 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, whereas 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 (s). On the above maxim, moreover, is founded the principle of the law of evidence that, whether there is any evidence is a question for the judge, but whether the evidence is sufExceptions to ficient is a question for the jury (t). But, although the general principle is as above laid down, there are many exceptions to it (u). Thus, all questions of reasonableness— reasonable 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 (x). (r) Parmiter v. Coupland, 6 M. & W. 105. See also Padmore v. Lawrence, 11 A. & E. 380. (8) Judgment, Watson v. Quilter, 11 M. & W. 767. (t) Per Buller, J., Carpenters' Company v. Hayward, Dougl. 375; 1 Ph. Ev., 9th ed., 38. (u) Judgment, Watson v. Quilter, 11 M. & W. 767. (x) See per Lord Abinger, C. B., Startup v. Macdonald, 7 Scott, N.R., |