In Ackerley v. Parkinson (a) the plaintiff had been excommunicated in the Ecclesiastical Court, for contumacy. The excommunication was afterwards set aside on appeal, on the ground that the citation served upon the plaintiff was altogether void. He thereupon brought an action on the case against the judge of the Court. It was held, however, that the action would not lie, insomuch as the Court had possessed general jurisdiction in the matter, and the absence of a proper citation was a mere irregularity. It seems difficult to distinguish this case from Mitchell v. Foster (b). There, as has been seen, the absence of a proper summons was held fatal, though there was a general jurisdiction over the subject-matter. 2. It may be a question of fact whether jurisdiction exists or Error of fact. not, and this question may arise in respect of the very issue that is to be decided by the Court, or in respect of some subordinate or collateral matter. decision. (a) Of course, in one sense, no person in a judicial position is In the actual entitled to make an order which the facts do not justify, but, if his jurisdiction were made to depend on the correctness of his inferences, the result would be that in all cases he would be liable for a mere erroneous exercise of his judgment. The true test, however, is to inquire whether, assuming that the charge or other matter alleged before him is true, he has jurisdiction to deal with it (c). Thus, while a trespass involving a title to land, if founded on "a fair and reasonable supposition" of right, is not within the jurisdiction of justices, a conviction for a similar offence committed in assertion of an altogether untenable and absurd claim involves no ouster of jurisdiction, and will be affirmed upon appeal (d). It is a fallacy to say that "the fact which the magistrate has to decide is that which constitutes his jurisdiction. . . . Suppose the case of a conviction under the game laws for having partridges in possession; could the magistrate, in an action of trespass, be called upon to show that the (a) (1815) 3 M. & S. 411. (b) (1840) 12 A. & E. 472; see above, p. 737. (c) Per Cur., Cave v. Mountain (1840) 1 M. & G. p. 262; Polley v. Fordham, (1904) 2 K. B. 345; Reg. v. Bolton, (1841) 1 Q. B. 66; see Ashcroft (d) Brooks v. Hamlyn, (1899) 79 L. T. 734. Error of fact in collateral matter. bird in question was really a partridge ?" (a). The decision of any court on a matter which by law it is appointed to decide is conclusive, except in so far as an appeal may lie, and if the judge of an inferior court has come to such a decision the superior court cannot reopen the question in any action brought against him (b). It makes no difference if the inferior court have acted without legal evidence, or adopted an irregular procedure (c). If, however, there has been no hearing or inquiry at all then the superior court will intervene, for no decision can stand where the elementary forms of justice have not been observed. Where the judge of an inferior court, by a premature exhibition of animus, unduly biases the jury, or prevents counsel from cross-examining witnesses, a writ of certiorari or of prohibition will issue, ousting the jurisdiction of the original tribunal and removing the case into the High Court (d). (b) The objection to the jurisdiction may arise not on the main issue but on some collateral point which may be brought to the attention of the Court. Thus, it may be alleged that the matters in question arose outside the local limits within which the Court has authority, or that there is a dispute of title which will oust its jurisdiction. In such cases the Court has, before proceeding further, to decide this preliminary question. Its decision on this matter is not final, as is a decision on the merits, but will be reviewed in the superior court on certiorari prohibition, or mandamus (e). The inferior court cannot give itself jurisdiction by an erroneous finding of facts (ƒ). (a) Per Richardson, J., Brittain v. Kinnaird, (1819) 1. B. & B. p. 442. (b) Kemp v. Neville, (1861) 10 C. B. N. S. 523; Brittain v. Kinnaird, (1819) 1 B. & B. 432. (e) Care v. Mountain, (1840) 1 M. & G. 257; Ex parte the Overseers of Tollerton, (1842) 3 Q. B. 792; Kemp v. Neville, supra. (d) Crabb & Others v. Lee & Others, Times Newspaper, Jan. 26, 1904. (e) Thompson v. Ingham, (1850) 14 Q. B. 710; Liverpool Gas Co. v. Everton, (1871) L. R. 6 C. P. 414; per Cur., Bunbury v. Fuller, (1853) 9 Ex. p. 140. The case of Reg. v. Dayman, (1857) 7 E. & B. 672, illustrates the difficulty which sometimes arises in determining whether a decision is on the merits or on a collateral point. (f) It is said in Brown v. Cocking, (1868) L. R. 3 Q. B. 672, that the superior Court has no jurisdiction to interpose where the inferior Court has decided on conflicting evidence a question of jurisdiction. It seems, however, in such cases rather a rule of convenience, that the Court which has not had the witnesses before it should accept the finding of the Court which has, just as the Court of Appeal may refuse under like circumstances to overrule a judge A judge who acts without jurisdiction is not liable unless he had "knowledge or means of knowledge, of which he ought to have availed himself, of that which constitutes the defect of jurisdiction" (a). He is always supposed to know the law, and therefore it is no defence to plead that he acted wrongly through mistake of law (b). But the facts of the case on which jurisdiction depends may not be brought before the Court at all, or, if brought, the evidence with respect thereto may be doubtful and conflicting. Thus it is apparently uncertain whether or no the word "Court" in sect. 4 of the Arbitration Act, 1889 includes a County Court (c). In such case the judge is not answerable even though in fact the jurisdiction did not exist. The defect must be one of which he ought to have known. The evidence before him must have been such as to lead any reasonable mind to the conclusion that there was an absence of jurisdiction (d). Whether in such a case it lies on the plaintiff to prove the absence of reasonable and probable cause or on the defendant to prove its presence seems undecided (e). If prima facie it appears that jurisdiction has been assumed through a mistake of law it is for the defendant to prove, if he can, that the mistake was in truth one of fact. In Houlden v. Smith (f) the defendant was a county court judge, and judgment had been given in one of his courts against the plaintiff, who resided at Cambridge, out of the jurisdiction. The plaintiff was afterwards served with a judgment summons in which his residence was described as of Cambridge, and an order was made of first instance. The Superior Court cannot well lose its jurisdiction to inquire into facts simply because such inquiry will be difficult. See per Blackburn, J., Elston v. Rose, (1868) L. R. 4 Q. B. p. 8. (a) Per Parke, B., Calder v. Halket, (1839) 3 Moore, P. C. p. 77. (b) Houlden v. Smith, (1850) 14 Q. B. 841. In the old case of Hamond v. Howell, (1677) 2 Mod. 218, the defendant was the Recorder of London, and he had fined and imprisoned the plaintiff for misconduct as a juror in returning a wrong verdict. The Court held that the action did not lie because the defendant had general jurisdiction to punish mis. (c) Runciman & Co. v. Smyth & Co., (d) Pike v. Carter, (1825) 3 Bing. 78; Pease v. Chaytor, (1861-3) 1 B. & S. 658; 3 B. & S. 620. (e) The cases of Calder v. Halket, (1839) 3 Moore, P. C. 28, and Carratt v. Morley, (1841) 1 Q. B. 18, appear in conflict on this point. (f) Supra. Remedy for act done without jurisdiction. Setting aside proceedings. for his imprisonment. This was without jurisdiction, since he ought to have been proceeded against at Cambridge. The Court declined to assume in the absence of evidence that the mistake was one of fact, as to the plaintiff's real residence, and not of law, as to the extent of the jurisdiction. If a judicial person is liable at all for acting without jurisdiction the ordinary remedy is trespass for any invasion of person or property which may have been committed by the officers or agents of the law in obedience to the unauthorised decision (a). The mere fact that the party against whom an order has been made has been put to expense in getting it quashed does not appear to be of itself a cause of action (b). If an order is partly within the jurisdiction and partly without, the party making it is not answerable for what is done in carrying it into effect, provided that the bad part has not been acted upon. Thus in Barton v. Bricknell (c) the defendant had convicted the plaintiff in a penalty and costs, and directed that in default of sufficient distress he should be put in the stocks. There was no jurisdiction to inflict the stocks, and the order was quashed in consequence. Meantime a distress had been levied, and the plaintiff sued the defendant in respect of the distress. It was held, however, that though the conviction was bad as a whole yet, since the defendant had jurisdiction to order a distress, he was protected. It is a general rule that the proceedings of any court, which are regular on the face of them and which have not been subsequently set aside or quashed (d), are a sufficient justification for any act done in pursuance of their authority (e). If, however, (a) See, however, the observations of Blackburn, J., in Pease v. Chaytor, (1861) 1 B. & S. p. 674, with reference to jurisdiction assumed on mistake of fact; and as to what will oust jurisdiction, see Pickavance v. Pickavance, (1901) P. 60; Kinnis v. Graves, (1898) 78 L. T. 502. See also Polley v. Fordham, (1904) 2 K. B. 345, S. C. (2) (1904) 91 L. T. 525. (b) Somerville v. Mirehouse, (1860) 1 B. & S. 652. This seems to be the ground on which the decision of Hill, J., in this case proceeded. (c) (1850) 13 Q. B. 393. The punishment of the stocks for drunkenness was repealed by the Licensing Act, 1872. Apparently it is still unrepealed as a punishment for Sunday trading: 29 Chas. II. c. 7, s. 2, sub-s. 5, but see 34 & 35 Vict. c. 87, renewed by 3 Edw. VII. c. 40. (d) See Polley v. Fordham, supra. (e) Basten v. Carew, (1825) 3 B. & C 649; Brittain v. Kinnaird, (1819) 1 B. & B. 432. the setting forth of such proceedings discloses any fatal defect, then being a mere nullity they are not available as a defence (a). The record though it may not be traversed may be demurred to. However, with regard to convictions before magistrates, the law now stands on a special footing (b). A judicial person is only answerable for the strict consequences Liability of judicial officer of any order or judgment which he may give; he has no general for manner of responsibility for the manner in which the ministerial officers execution. of the Court execute its process. Even where special bailiffs are appointed, their mistake or misconduct does not affect him if such appointment is according to the ordinary practice of the Court (c). But where the steward of a court baron entrusted an attachment to bailiffs named by a party to the cause, taking an indemnity, instead of to the regular officers, it was held that he was liable for their conduct in seizing the goods of the wrong person (d). The statute 11 & 12 Vict. c. 44, contains a variety of enact- Statutory protection of ments for the better protection of justices of the peace in the justices. execution of their office. It is provided by s. 1 that when a Acts within jurisdiction. justice of the peace is sued for an act done within his jurisdiction it shall be a necessary allegation on the part of the plaintiff that such act was done maliciously and without reasonable and probable cause (e). In respect of acts without jurisdiction, or in Acts without jurisdiction. excess of jurisdiction, a conviction or order unquashed on appeal or certiorari is an answer to any action brought in respect of what has been done, whether under a warrant issued before such conviction or order, to procure the attendance of the party, or subsequently in obedience to the conviction or order. If the warrant is issued to procure the attendance of a party and is not followed by any conviction or order, or is upon an information for an indictable offence, the justice is still protected in respect of anything done under the warrant, though he acted without jurisdiction, provided he first issued a summons to the party, and there was a failure to appear (ƒ) either in person or by his |