it to the jury to say whether it actually has that meaning (c). Again, it is for the judge to say whether a communication is privileged or not; but if the privilege is not an absolute one, as that enjoyed by witnesses in a cause, the further question remains whether it was made bona fide and without malice, and this is always for the jury (d). It is to be remembered that where this qualified privilege is established, it has the effect of shifting the onus of proof of malice upon the plaintiff. If he fail to give evidence beyond that of mere defamation, it is the duty of the judge to direct a verdict for the defendant (e). Although the general principle is as laid down in the maxim under consideration, there are many exceptions to it (). Thus, 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 (g), but are properly left to the judge, as requiring legal training for their appreciation. So, where a question arises as to the admissibility of evidence, the facts upon which its admissibility depends are to be determined by the judge, and not by the jury. If the opposite course were adopted, it would be equivalent to leaving it to the jury to say whether a particular thing were evidence or not (h). And the question whether a document comes from the proper custody or whether it is (e) Sturt v. Blagg, 10 Q. B. 908; Hunt v. Goodlake, 43 L. J. C. P. 54. As to slander, see Hemmings v. Gasson, E. B. & E. 346; and see Bushell's case, Vaugh. R. 147; Ewart v. Jones, 14 M. & W. 774. (d, Stace v. Griffith, L. R. 2 P. C. 420. (e) Taylor v. Hawkins, 16 Q. B. 321; Spill v. Maule, L. R. 4 Ex. 232. (f) Judgm., Watson v. Quilter, 11 M. & W. 767. 9. See per Ld. Abinger, Startup v. Mardonald, 7 Scott, N. R. 280; Co. Litt. 566; Burton v. Griffiths, (h) Per Alderson, B., Bartlett v. Exceptions to rule. No case. Misdirection. properly stamped must be decided by the judge, for the jury are not sworn to try any such issues (i). There are also certain statutes which give to the Court in particular cases cognizance of certain facts; and there is another and distinct class of cases in which the Court, having a discretionary power over its own process, is called upon to depart from the usual course, upon the suggestion of some matter which renders such departure expedient or essential for the purposes of justice; as where a venue is to be changed because an impartial trial cannot be had, or where the sheriff is a party (k). If at the close of the plaintiff's case there is no evidence upon which the jury could reasonably and properly find a verdict for him, the judge ought to direct a verdict for the defendant (1). Formerly, if there were a scintilla of evidence in support of a case, the judge was held bound to leave it to the jury. But a course of decisions, many of which are referred to in Ryder v. Wombwell (m), "has established a more reasonable rule, viz., that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed" (n). But where there is conflicting evidence upon a question of fact, whatever may be the opinion of the judge as to the value of that evidence, he must leave the consideration of it for the jury (0). Whenever mixed questions of law and fact arise in a case (i) Per Pollock, C.B., Heslop v. Chapman, 23 L. J. Q. B. 52; Siordet v. Kuczynski, 17 C. B. 251; per Pollock, C.B., Sharples v. Rickard, 2 H. & N. 57; Tattersall v. Fearnly, 17 C. B. 368. See 17 & 18 Vict. c. 125, s. 31. (k) See some instances mentioned, Judgm., 11 M. & W. 768. (1) See Fox v. Star Co., [1900) A. C. 19. (m) L. R. 4 Ex. 32. (n) Judgm., Giblin v. McMullen, L. R. 2 P. C. 335. (0) Dublin & Wicklow Ry. v. Slattery, 3 App. Cas. 1155. tried before judge and jury, it is the judge's duty to give to the jury such a direction upon the law as will enable them to understand its bearing upon the facts (p). If his direction be wrong in giving them a wrong guide, or imperfect in not giving them the right guide which it was his duty to give (p), and some substantial wrong or miscarriage be thus occasioned (q), the appellate Court, in a civil case (r), should order a new trial. But in cases where the verdict is so far against the weight of the evidence as to be unreasonable or perverse (s), and where the Court is satisfied that it has all the material facts before it, the Court of Appeal may now, on motion for a new trial, give judgment for the party in whose favour the verdict ought to have been given (t). In conclusion, it may be observed that, though there is a tendency to dispense with juries in many purely civil actions, yet in cases of a criminal and quasi-criminal nature, most persons will probably still agree with Lord Hardwicke, that "it is of the greatest consequence to the law of England and to the subject that these powers of the judge and jury be kept distinct, that the judge determine the law, and the jury the fact; and if ever they come to be confounded it will prove the confusion and destruction of the law of England" (u). (p) Prudential Assurance Co. v. Edmunds, 2 App. Cas. 487, 507, per LA. Blackburn. (g, R. S. C. 1883, 0. XXXIX., r. 6; see Bray v. Ford, [1896] A. C. 44: 65 L. J. Q. B. 213. (r) A new trial cannot be had in a case of felony; Reg. v. Bertrand, L. R. 1 P. C. 520; Reg. v. Murphy, 2 Id. 35. (s) See Metr. R. Co. v. Wright, 11 App. Cas. 152: 55 L. J. Q. B. 401. (t) R. S. C. 1883, O. LVIII., r. 4; Allcock v. Hall, [1891] 1 Q. B. 444 : 60 L. J. Q. B. 416; Toulmin v. Miller, 17 Q. B. D. 603; but see S. C., 12 App. Cas. 746. (u) R. v. Poole, Cas. tem. Hardw. 28. IN PRÆSENTIA MAJORIS CESSAT POTENTIA MINORIS. (Jenk. Cent. 214.)-In presence of the greater the power of the inferior ceases (x). This maxim has been usually (y) cited with special reference to the transcendent nature of the powers vested formerly in the Court of Queen's Bench, and now in the Queen's Bench Division of the High Court (2). It is the function of this Court to keep all inferior jurisdictions within the bounds of their authority and to correct irregularities in their proceedings. It commands magistrates and others to do what their duty requires in every case where there is no other specific remedy. It protects the liberty of the subject by speedy and summary interposition. It takes cognizance both of criminal and civil causes; the former in what is called the Crown side, or Crown Office; the latter in the plea side of the Court (a). To it also appeal lies from some inferior criminal Courts. To this supremacy of the Court of Queen's Bench may be attributed the fact that on its coming into any county the power and authority of other criminal tribunals therein situate are pro tempore suspended (b); in præsentiâ majoris cessat potestas minoris (c). It has been held (d), however, that the authority of a Court of Quarter Sessions, whether for a county or a borough, is not in law either determined or suspended by the coming of the judges into the county under their commission of assize, oyer and terminer, and general gaol delivery, though "it would be highly inconvenient and improper, generally speaking, for the magis trates of a county to hold their sessions concurrently with the assizes, even in a different part of the county." (x) See the maxim, Omne majus continet in se minus, post, Chap. IV. (y) See 10 Rep. 73 b; Ld. Sanchar's case, 9 Rep. 118 b; 2 Inst. 166. (z) See R. S. C. 1883, O. LXVIII. (a) Reg. v. Gillyard, 12 Q. B. 530. (b) 4 Inst. 73: see 25 Geo. 3, c. 18, s. 1. (c) Per Coleridge, J., 13 Q. B. 740. (d) Smith v. Reg., 13 Q. B. 738, 744. § II. THE MODE OF ADMINISTERING JUSTICE. Having in the last section considered some maxims relating peculiarly to the judicial office, the reader is here presented with a few which have been selected in order to show the mode in which justice is administered in our Courts, and which relate rather to the rules of practice than to the legal principles observed there. AUDI ALTERAM PARTEM. No man should be condemned unheard. Rule. It has long been received rule (e), that no one is to be Statement of condemned, punished, or deprived of his property in any judicial proceeding, unless he has had an opportunity of being heard (f). In the words of the moralist and poet Quicunque aliquid statuerit, parte inauditâ alterâ, Equum licet statuerit, haud æquus fuerit (g). A writ of sequestration, therefore, cannot properly issue Examples. from the Consistory Court of the Diocese to a vicar who has disobeyed a monition from his bishop, without previous notice to the vicar to show cause why it should not issue; for the sequestration is a proceeding partly in pœnam, no proposition is more clearly established than that "a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the charge against him, unless, indeed, the (e) It is an indispensable requirement of justice that the party who has to decide shall hear both sides, giving each an opportunity of hearing what is urged against him;" per Erle, C.J., 16 C. B. N. S. 416. (f) Fer Parke, B., Re Hammersmith Rent-charge, 4 Ex. 97; per Ld. Campbell, Reg. v. Archbp. of Canterbury, 1 E. & E. 559; per Ld. Kenyon, Harper v. Carr, R. R. 440; 7 T. R. and 275, and R. v. Benn, 6 Id. 198; per (g) Seneca, Medea, 195; cited 6 |