sets up that supposed intention against the order which is the act of the court. Cur. adv. vult. ABBOTT C. J. now delivered the judgment of the Court. This case was argued before us in the course of the present term. It is a writ of error brought on a judgment given in the Court of Common Pleas in an action on the case. The judgment of that court was in favour of the defendant in the action, and the plaintiff below is also the plaintiff in error. The declaration alleges in substance, that the defendant was the clerk of the court for the relief of insolvent debtors; and that being such clerk, and wrongfully and maliciously intending to injure the plaintiff, and to cause one Chorlton, who was in custody at the suit of the plaintiff, to be forthwith discharged out of custody without paying the plaintiff his damages and costs, and to deprive the plaintiff of the means of recovering the same, wrongfully and unlawfully wrote, made out, and issued an order, purporting to be an order from the court for the relief of insolvent debtors, entitled, "In the matter of the petition of Strettell Chorlton," and directed to the gaoler of Lancaster, and purporting thereby that the said court did order that the prisoner should be discharged from custody, as to the plaintiff, at whose suit he was detained; whereas in truth, and in fact, the said court did not pronounce any such order, nor give any authority to the defendant to write, make out, or issue the same. By means whereof, the said order being exhibited to the gaoler, Chorlton was discharged from custody against the will of the plaintiff, the debt and damages being 1823. WHITELEGG against RICHARDS. 1823. WHITELEGG against RICHARDS. unsatisfied, by means whereof the plaintiff has been greatly injured, and lost all means of enforcing payment from Chorlton. This may be taken as the substance of all the counts of the declaration; but it further appears by some of them, with more or less particularity, that Chorlton had been brought up before the justices at the quarter sessions at Lancaster, and had been by them adjudged to remain in actual custody for two years at the suit of the plaintiff, before he should be discharged from custody by virtue of the act. On the argument before us, some authorities were quoted to shew, that an action upon the case may be maintained against an officer of a court for a falsity or misconduct in his office, whereby a party sustains a special damage; and that, in this case, a damage was plainly shewn by the loss of the means of enforcing payment from the debtor, as in actions against sheriffs or gaolers for an escape. It is not necessary to repeat the authorities quoted. The general principle was not controverted. But on the part of the defendant, it was insisted that the order mentioned in the declaration must, upon this declaration, be understood to be the act of the court, although the writing might not be conformable to the words pronounced by the court; that the order, therefore, would be in force until it should be set aside by the court; and, consequently, that the action could not be maintained without an averment that it had been in fact set aside. It is not necessary to consider whether this consequence would follow legitimately from the premises, supposing the premises to be correct, because we are all of opinion that the premises are incorrect; and we think that, upon this declaration, the instrument in question question must be understood and taken not to be the act or order of the court. The intention of the defendant in writing, making out, and issuing this instrument, is charged to have been wrongful and malicious. The act of writing, making out, and issuing, is charged to have been wrongful and unlawful; and there is a positive and formal averment, not only that the court did not pronounce any such order, but also, that the court did not give any authority to the defendant to write, make out, or issue the same. Whether these allegations can or cannot be proved, is quite a distinct matter, and a matter with which we have at present no concern. It is true that the instrument is called an order, purporting to be an order of the court, and purporting that the court did order the discharge of Chorlton; but looking at the whole declaration, and adverting to the other allegations that have been noticed, we think the word "order," as here used, must be understood to denote the form only of the instrument. Thus, the statute against forgery, 45 G. 3. c. 89., mentions the forging of any will, testament, bond, warrant, or order, for payment of money, bank note, bank bill of exchange, and many other instruments. And the legislature must in this statute, as in many others that have passed on the same subject, be understood in mentioning these instruments, to speak of them as being such in form only, for a forged instrument cannot be, in fact, a testament, bond, warrant, order, or bank note, and all this is conformable to the common language and understanding of mankind. For this reason we are of opinion that the judgment ought to be reversed. Judgment reversed. 1823. WHITELEGG against RICHARDS. 1823. Monday, A regular usage for twenty years, unexplained and uncontradicted, is suffi custom. A custom for the steward of to the bailiff, to be summoned on the jury, is a good custom. The KING against JOLIFFE. QUO warranto, calling upon the defendant to shew upon what authority he claimed to exercise the office of mayor of the borough of Petersfield. Plea, cient to warrant that Petersfield is an ancient borough; and that from a jury in finding the existence of time immemorial, there hath been a court leet or view an immemorial of frankpledge holden in and for the borough, on, &c.; and that the jury sworn and serving at that court, have presented a fit person to be mayor of the borough for one whole year; and that the person so presented, hath always been sworn in at that court before the steward, and being so presented and sworn, hath executed the office of mayor for one year; that, at the court leet duly holden on, &c. certain persons, (naming them,) good and lawful men, &c. were then and there duly sworn, as and for the jury, then and there to serve as the jury, and did serve as the jury at the said court; and being so sworn, and so serving, presented defendant to be mayor; and that he being so presented, was duly sworn before the steward, and by virtue of the premises claimed to be mayor. To this plea there were eighteen replications, but the eighth only was material, viz. that the court leet of the said borough have immemorially presented a fit person to be bailiff, who is always attendant upon the court. That, at the court mentioned in the plea, the steward nominated the fourteen persons mentioned in the plea, who served on the jury, and issued his precept to the bailiff to summon those persons; and that the bailiff did accordingly summon them: whereas, whereas, by the law of the land, the steward should have issued his precept to the bailiff to summon a jury, and the particular persons should have been selected by the bailiff. Rejoinder, that from time immemorial the steward has been used to nominate the jurors. Issue thereon. At the trial before Burrough J., at the last Summer assizes for the county of Hampshire, the defendant proved, that for more than twenty years the precept to the bailiff had always contained a list of persons whom the steward directed him to summon as jurors. No evidence was given for the crown to shew that any other practice had ever prevailed in the borough. The learned Judge told the jury, that slight evidence, if uncontradicted, became cogent proof; and they found a verdict for the defendant. In Michaelmas term Pell Serjt. obtained a rule nisi for a new trial, on the ground that there was not sufficient evidence to warrant the finding of the jury; or to enter judgment for the crown, non obstante veredicto, on the ground that the custom set out in the rejoinder was bad in law. Scarlett, Adam, C. F. Williams, and Mereweather, shewed cause. The evidence was quite sufficient to warrant the finding of the jury. The commencement of the practice was not shewn; and therefore, in the absence of any proof to the contrary, it must be presumed that the custom, which had existed for more than twenty years, had existed from time immemorial. Indeed, all the evidence being for the defendant, a verdict for the crown must have been wrong. As to the second point, it is only necessary to advert to the nature of the court leet, in order to shew that there is no ground for this application. The court leet is derived from the 1823. The KING against JOLIFFE. |