are made judges shall not be liable to have their judgments examined. in actions brought against them(). 891 Delegation of judicial functions.-Judicial functions cannot be delegated(), and if it has been the practice of a particular court to delegate to its clerk the performance of judicial acts, the practice is illegal, and the clerk who thus takes upon himself the office of judge is responsible for the orders he gives. If he takes upon himself to issue a warrant, without the order or direction of the judge, he is liable for the trespasses occasioned by its execution. Where commissioners of a court for the recovery of small debts were empowered by statute to order payment of judgment debts by instalments, and, in case of default in payment of the instalments, the commissioners present in court, at the instance of the plaintiff, and upon due proof of the default, were empowered to award execution against the judgment debtor, with such costs as to them should seem just, and it was shown to be the practice of the court for the commissioners, at the time they gave judgment for the plaintiff, to direct the debt to be paid by monthly instalments or execution to issue, it was held that the commissioners had no power to make such a practice or such an order at the time of the judgment, because, if made then prospectively, it dispensed with that proof of non-payment which the statute required, and with the exercise of any discretion on their part as to the execution or further costs; that the direction, therefore, for issuing execution, engrafted on the original judgment, and made part of it, was not merely irregular, but a nullity; that the clerk had issued the warrant without authority, and was consequently liable for the imprisonment occasioned by its execution(m). -- 892 Removal of the proceedings of inferior courts for revision by a superior tribunal. The remedy by certiorari is available in all cases to remove the judgments, orders, and proceedings of courts of inferior jurisdiction, for the purpose of being examined by the Court of Queen's Bench, and quashed on the ground of want of jurisdiction or excess of jurisdiction, although the writ of certiorari is expressly taken away by statute. If it distinctly appears from the proceedings of the inferior court that the court has taken upon itself to decide on a matter over which it had no jurisdiction, the statutory prohibition of a certiorari does not apply, and the inherent jurisdiction of the Court of Queen's (7) Groenvelt v. Burwell, 1 Ld. Raym. 467. (W) State v. Jefferson, 66 N. C. 309. (m) Andrews v. Marris, 1 Q. B. 3. Whitelegg v. Richards, 2 B. & C. 45. Bench is not restrained(n). And if there is nothing on the record to show that there was any excess of jurisdiction, the fact may, nevertheless, be established by affidavits(0). A bill of certiorari may also be filed in a court of equity, to remove a cause from an inferior court to the Court of Chancery, where it appears that the inferior court is acting without jurisdiction(p). The writ of certiorari is, also, not taken away by statutory prohibition, when it is moved for on behalf of the crown. Thus the words in the County Courts Act, 9 & 10 Vict. c. 95, s. 90, enacting "that no plaint entered in any court holden under that Act shall be removed or removable from the said court into any of Her Majesty's superior courts of record by any writ or process, unless the debt or damage claimed shall exceed 51.," does not take away the prerogative right of the crown to remove into the Court of Exchequer causes affecting the crown revenue. Therefore, where an officer of the crown distrained some of the sheep of the plaintiff damage feasant in a royal forest, and the plaintiff sought to recover in the county court 17. damages from the officer for an illegal distress, the cause was removed into the superior court, notwithstanding the statutory prohibition(q). The validity of a commitment by a judge of an inferior court may be tested by habeas corpus(r). 893 Proceedings against county court judges to compel them to act in particular cases.-The 19 & 20 Vict. c. 108, s. 43, enacts that no writ of mandamus shall henceforth issue to a judge or an officer of the county court for refusing to do any act relating to the duties of his office; but any party requiring such act to be done may apply to any superior court or judge thereof, upon an affidavit of the facts, for a rule or summons calling upon such judge or officer, and also the party to be affected by the act, to show cause why such act should not be done; and if, after the service of such rule or summons, good cause shall not be shown, the superior court or judge thereof may, by rule or order, direct the act to be done, and the judge or officer of the county court, upon being served with such rule or order, shall obey the same, on pain of attachment; and in any event the superior court, or the judge thereof, may make such order with respect to costs (i.e., the costs of the (n) Reg. v. South Wales Rail. Co., 13 Q. B. 993. (0) Re Penny, 7 Ell. & Bl. 660; 26 Law J., Q. B. 225. Reg. v. Manch., etc., Rail. Co., 8 Ad. & E. 417. (p) Tracy v. Open Stock Exchange, L. R., 11 Eq. Ca. 556. (q) Mountjoy v. Wood, 1 H. & N. 58. (r) Boyce, In re, 22 Law J., Q. B. 393. application for the rule, not the costs in the county court(s)) as to such. court or judge shall seem fit(t). 894 Proceedings of courts-martial.—Where the civil rights of a person in the military service are affected by the judgment or sentence of a military tribunal, if that military tribunal is exceeding its jurisdiction, or is acting without jurisdiction, the Court of Queen's Bench will interfere to protect the civil rights of the individual; but where the military status of the applicant only is concerned, the court has no jurisdiction in the matter, as that status is a matter depending entirely upon the will and pleasure of the crown(u). SECTION II. OF THE DUTIES AND RESPONSIBILITIES OF MINISTERIAL OFFICERS OF COURTS OF JUSTICE. 895 Illegal assumption of the judicial office by ministerial officers.—As judicial functions cannot be delegated (ante, p. 641), it follows that if the mere ministerial officer of the court takes upon himself the responsibility of issuing orders purporting on the face of them to be the orders of the court, but which are issued without its authority, and which are consequently in form only and not in fact the orders of the court, the officer so misconducting himself is responsible for all trespasses that may be committed in carrying into effect the orders so issued. But if the order has been made in a cause in court over which the judge has a general jurisdiction, the mere ministerial officer who receives the warrant or order from the clerk to execute, and has no knowledge that it was issued without the authority of the court, is not responsible for things done under it(x), and the clerk of the court, so long as he confines himself to the mere ministerial duties of his office, and does not take upon himself the exercise of the office of judge, is not responsible for things done under the orders that are signed and issued by him in the discharge of the duties of his office, unless there is a total absence of jurisdiction on the part of the judge(y). (8) Churchward v. Coleman, L. R., 2 Q. B. 18. But see Whitehead v. Procter, 3 H. & N. 533. (t) Fulber, Ex parte, 27 Law J., Exch. 3. (u) Mansergh, In re, 30 Law J., Q. B. 296. See ante, p. 751. (z) Andrews v. Marris, 1 Q. B. 3. (y) Dews v. Riley, 11 C. B. 434. 896 Neglect of duty by ministerial officers of courts of justice.-Every ministerial officer of a court of justice is liable to an action for neglecting the duties of his office. Thus, an action lies against the chief clerk of a court for not entering a judgment on the roll when it is his duty so to do(2). An action also lies against the clerk of the court at the suit of a judgment creditor for unlawfully, without the sanction or authority of the court, taking upon himself to issue an order, purporting to be the order of the court, for the discharge of the judgment debtor, whereby the plaintiff lost the fruits of his judgment. It is no part of the duty of the clerk of the county court to prepare notices of judgments or orders of court for the payment of money, and no action, therefore, lies against him for omitting to prepare such a notice, or for negligently preparing it, whereby a party was misled as to the times of payment of certain instalments ordered by the judge to be paid, and had his goods taken in execution(a). 897 Duties and responsibilities of the sheriff and his officers-Execution of writs. It is the duty of the sheriff, as soon as a writ of execution has been lodged in his hands, to make careful and diligent inquiry concerning the execution debtor or his property, and to execute the writ without any unnecessary delay. If he refuses to execute a writ when he has the opportunity, and is required to do it, and nothing occurs to prevent him, he will be responsible in damages to the execution creditor for his negligence(b). On receiving a writ of fi. fa. he must endeavor to ascertain what goods the execution debtor possesses within his bailiwick and seize them(c), and sell them to the best advantage(d). If he sells goods for much less than they ought to have been sold for, or does not take due and proper care in selling to the best advantage, or if he seizes or sells goods of much greater value than would suffice to satisfy the execution, poundage, and expenses, he will be respon (2) Douglas v. Yallop, 2 Burr. 722. So if a clerk refuses to issue an execution to which the plaintiff is entitled, the latter may maintain an action against the clerk on his official bond. Gooch v. Gregory, 65 N. C. 142. Goodwin v. Glazer, 10 Cal. 333. And where the delay of a clerk to issue an execution results in the loss of the debt, as where the defendant becomes insolvent, the clerk is liable to the plaintiff for all that he has lost by reason of the non-feasance. State v. Merritt, 65 N. C. 558. So if by reason of the neglect of the clerk to copy the return of a sheriff upon a summons, the judgment is reversed on appeal and the plaintiff loses his debt, the clerk will be liable in an action for damages for such neglect. Clark v. Wilcox, 31 Tex. 322. But a clerk will not be liable for not issuing an execution in the absence of a request by the plaintiff that the execution be issued, or of a statute commanding it. Badham v. Jones, 61 N C. 655. (a) Robinson v. Gell, 12 C. B. 191. (b) Mason v. Paynter, 1 Q. B. 981. Brown v. Jarvis, 1 M. & W. 704. See Paton v. Wester velt, 2 Duer, 362. (c) See post, p. 788. (d) Pitcher v. King, 5 Q. B. 767. sible in damages to the party damnified(e). There is no duty or obligation on the part of the judgment creditor to give the sheriff any information or assistance to enable him to execute the writ(ƒ). The law has always held the sheriff strictly, and with much jealousy, to the performance of his duty in the execution of writs, both from the danger there is of fraud and collusion with defendants, and also because it is a disgrace to the crown and the administration of justice if the king's writ remain unexecuted, as appears by the statute of Westminster the 2nd, c. 39(g). The law is tender also of the liberties and interests of the subject, and requires the presence of the responsible officer to control the execution of the writ. If, therefore, an arrest is made under a ca. sa. by a bailiff to whom the warrant is not addressed, in the absence of the officer to whom it is addressed, the arrest is irregular, and the defendant will be entitled to be discharged out of custody, and may maintain an action for wrongful imprisonment against the bailiff and the sheriff, unless the court has imposed upon him terms prohibiting him from bringing an action(h). Where a gentleman, who had obtained a warrant directed to a sheriff's officer to arrest his debtor, struck out the officer's name and inserted his own in its stead, and the gentleman was shot by the debtor whilst he was endeavoring to arrest him, it was held to be no murder, as the arrest was illegal, not having been effected by the officer named in the warrant(i). 898 Priority of writs of execution.-The sheriff, as between himself and different execution creditors, is bound to execute that writ which is first delivered to him to be executed, and is responsible to the first creditor who so delivered his writ if he does not, unless the execution of the writ is countermanded; in which case the writ, whilst the countermand continues, must be considered as not delivered at all to be executed, because the sheriff cannot act upon it. If, after the sheriff has been desired to suspend the execution of a writ, he receives an order to execute it, this order will not relate back, so as to give the execution of the writ any priority over writs which have been placed in the hands of the sheriff during the period of the suspended execution. The countermand of the execution of the writ is equivalent to its withdrawal, and it is not until the sheriff receives notice of with (e) Gawler v. Chaplin, 2 Exch. 506. Mullet v. Challis, 16 Q. B. 239. Dyke v. Duke, 4 B. N. C. 203. (9) Howden v. Standish, 6 C. B. 520. (h) Rhodes v. Hull, 26 Law J., Exch. 265. Gregory v. Cotterell, 5 Ell. & Bl. 571. |