ing to BULLER, J., he had a right to keep every hour till the debt is paid. Plank v. Anderson, 5 Term Rep. 37. In Com. Dig. tit. Action upon the Case for Deceit, (A 6,) it is laid down," that such action will lie if an officer, being intrusted by the law, act deceptive in his office;" or, if the escheator return a writ directed to him, without *making an inquest, though he be an offi[*46 cer of record. "So, if the under escheator make a return different from the office found by the escheator." And in tit. Action upon the Case for Misfeasance, (A 1,) it is laid down, "that an action upon the case lies against an officer for a misfeasance, as if an officer misdemean himself by any falsity." "So, if a prothonotary of C. B. award a supersedeas irregularly to process, upon which A. is arrested at the suit of another." And Lutwych, 96, is referred to. That was an action by Sir Edward Smith, Bart., v. Winford, the prothonotary, for issuing a writ of supersedeas, in consequence of which one E. A., whom the plaintiff had caused to be arrested, was discharged, without bail, or any appearance being entered with the filazer. The declaration in the present case follows precisely the precedent to be found in Lutwych. The declaration there did not contain any averment that the supersedeas was set aside for irregularity. It is true, that in that case the plaintiff was nonsuited, for not entering the issue in due time; and, therefore, the question, whether the action was maintainable, could not have arisen, either upon motion in arrest of judgment or in error. Lord Chief Baron CoмYNs, however, lays down the proposition broadly, that the action is maintainable. In Herbert v. Paget, 1 Levinz, 64, it was held, by two judges, that the action lies against the custos brevium, who keeps the records in his office so negligently, that they are altered, though they do not appear to be so by his consent; and attorneys have always recourse to the records there. And this opinion of the two judges is referred to with *approbation by Lord Chief Baron COMYNs, in his Digest, tit. [*47 Action upon the Case for Negligence, (A 2;) and in the same title he lays it down in the words used by Lord HOLT, in Ashby v. White, Salk. 18, that in every case where an officer is intrusted by the common law or by statute, an action lies against him for a neglect of the duty of his office. In Douglas v. Yallop, 2 Burr. 722, Lord MANSFIELD intimates an opinion, that an action on the case would lie against the chief clerk of this court for not entering a judgment, after he had received his fees for so doing, by a purchaser who should have become liable to it, and had searched the roll without finding it entered up. The material distinction in such cases is between ministerial and judicial offices. In Schinotti v. Bumsted, 6 T. R. 646, an action was held to be maintainable against the commissioners of the lottery for withholding a prize against the person entitled to receive it; and in that case malice was not alleged. In Harman v. Tappenden, 1 East, 561, it was held, that an action would not lie against individuals for acts erroneously done by them in a corporate capacity, from which detriment happened to the plaintiff; but LAWRENCE, J., there intimated an opinion that the action might have been maintained if it had been proved that the defendants, intending to injure the plaintiff, had wilfully and maliciously done the act complained of. Drewe v. Coulton, 1 East, 563, and Milward v. Sergeant, Ib. 567, are authorities to show that an allegation that the defendant, knowing, &c., and wrongfully intending to injure the plaintiff," amounts to an allegation of malice. But, in the present case malice is expressly alleged.

66

*It was contended in the court below, that the plaintiff had sustained [*48 no damage, inasmuch as he could have no interest in his debtor's detention, when, in pursuance of the act, he had assigned all his present and future effects to his creditors. The imprisonment of the debtor is considered in law as a satisfaction to the creditor. The debtor still remained in custody in execution at the suit of the plaintiff. For the 1 G. 4, c. 119, s. 18, enacts, "that in the cases therein mentioned, the debtor is not to be discharged until he shall

have been in custody at the suit of the creditor, for any period not exceeding two years." Under this section the Court ordered the debtor to be confined two years. This objection does not apply to the last count. (a) The proceedings in the insolvent debtor's court are not there mentioned. Besides, an action will lie against a sheriff, for the escape of a person arrested upon an excommunicato capiendo issued in a suit for non-payment of tithes, Slipper v. Mason, 2 Ld. Raym. 788; or of a person in custody upon a capias utlagatum after outlawry upon mesne process, Cooke v. Champneys, 2 Str. 900; or *of one committed by commissioners of bankrupt for refusing to answer *49] interrogatories. Barnes v. Carey, Moore, 834; 1 Rolle's Rep. 47; 2 Bulstr. 236. In all these cases the party was in custody for the contempt, yet the action was held to be maintainable by the plaintiffs in the original suits.

The court below pronounced judgment in favour of the defendant, on the ground that the order mentioned in the declaration was to be considered the act of the court. It is, however, expressly averred, not only that the defendant made the order without any authority from the court; but that, in truth and in fact, the court did not at any time pronounce any such order. The word “order” means only a paper in the form of an order. It is not an act of the court; it is delivered out by the officer. In actions, indeed, between third persons, the order, signed by the proper officer of the court, may be primâ facie evidence of an act done by the court; yet, in an action against the officer himself for wrongfully making such an order, it cannot be competent to him who has wrongfully made the order to say that it is the order of the court. It might have been contended, if the case had gone to trial, that the only admissible evidence to show that the order was not the order of the court, was the rule to set it aside, but non constat that such a rule might not have been produced if the case had gone to trial. It cannot be necessary to set out the evidence in the declaration. Besides, suppose the order to have been issued the last day of the five years for which the court was established by the act of parliament, no application in that case could have been made *to set it aside; yet surely *50] an action for maliciously issuing it would have been maintainable. An action will lie for maliciously suing out a writ, although the writ be not set aside; yet the writ itself, in that case, will be a justification to the jailer for detaining the party in custody; à fortiori, an action for maliciously issuing such writ will lie against an officer of the court, whose peculiar duty it is not to abuse its process.

Talfourd, contrà. The general principle may be conceded, that an action is maintainable against an officer of a court, for maliciously issuing, without authority, a paper purporting to be an order of the court. It may also be conceded, that a sufficient damage is alleged (especially in the last count) to maintain the action. But the judgment of the court below may be supported, upon the ground that the order, upon the face of the declaration must be considered the act of the court. It is alleged that the defendant was a clerk and an officer of the court; and that it was his duty, as such officer, to issue an order of that court, ordering that the prisoner should be discharged. The moment such order was signed and issued by him, it became the act of the court, and it would continue the act of the court until set aside; and the 1 G. 4, c. 119, s. 21, expressly directs that the court shall order that the prisoner be discharged.

(4) That count charged that the defendant was a clerk of the court, &c., and that S. C. was in custody of the keeper of Lancaster jail, for certain damages, to wit, &c., yet defendant so being such clerk, well knowing the premises, but not regarding the duty of his office as such clerk, and wrongfully and maliciously contriving and intending to injure the plaintiff in this behalf, and to cause the said S. C. forthwith to be discharged from custody, and to deprive the plaintiff of the means of recovering his said last-mentioned damages, without any authority from the court wrongfully made out and issued an order, purporting to be an order from the said court, &c., and purporting that the said court did order that the prisoner be discharged from custody as to the plaintiff, whereas in truth the court did not pronounce any such order, or give any authority to the defendant to make out or write the same, by means whereof, &c.

The declaration, therefore, in this case, ought to have contained an averment that the order was set aside. The case in Lutwych is no authority, inasmuch as the judgment was given for the defendant. The present declaration puts the intention of the judges, in pronouncing the order, as a question for the jury, and *sets up that supposed intention against the order which is the act of the Cur. adv. vult.

court.

[51

The

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. 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 jailer 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 jailer, Chorlton was discharged from custody against the will of the plaintiff, the debt and damages being unsatisfied, by [52 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 show, 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 shown by the loss of the means of enforcing payment from the debtor, as in actions against sheriffs or jailers 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 must be understood and taken not to be the act or order of the court. The intention of the defendant [*53 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 the 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.

*54]

*The KING v. JOLIFFE.

A regular usage for twenty years, unexplained and uncontradicted, is sufficient to warrant a jury in finding the existence of an immemorial custom. A custom for the steward of a courtleet to nominate certain persons to the bailiff, to be summoned on the jury, is a good custom. Quo warranto, calling upon the defendant to show upon what authority he claimed to exercise the office of mayor of the borough of Petersfield. Plea, that Petersfield is an ancient borough; and that from time immemorial, there hath been a court-leet or view 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, by the law of the land, the *55] 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 show 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.

[55

The

Scarlett, Adam, C. F. Williams, and Mereweather, showed cause. evidence was quite sufficient to warrant the finding of the jury. The commencement of the practice was not shown; 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 show that there is no ground for this application. The court leet is derived from the #sheriff's tourn, and its jurisdiction is the same. Com. Dig., Leet (B.) In the tourn the sheriff is judge, and nominates the jury; in the leet the steward is in the place of the sheriff; why then should [*56 he not exercise the same power? At common law, all resiants were bound to attend the court without summons; and when they were assembled, the sheriff nominated a jury. If in order to secure a sufficient attendance, he sent his bailiff to summon the resiants, there was nothing illegal in that; and he might select the jury from those summoned. In the leet the rules were the same; and the steward, in case of a deficiency, might even swear on the jury a stranger happening to be present. 1 Roll. Abr., Court (Y,) pl. 1. Suppose, instead of desiring the bailiff to summon certain persons, he had ordered him to summon all resiants; when they came, the steward certainly would be the proper person to nominate the jury. Indeed the law does not recognise a sheriff's bailiff, but considers all the acts of the latter as done by the sheriff himself. In many instances besides the tourn, the sheriff nominates the jury and presides as judge; as in writs of redisseisin and writs of inquiry. In this particular case the steward was manifestly more independent than the bailiff, for the latter is annually elected by the leet jury: it would therefore be very singular if he were to be intrusted with the selection of that jury. Crane v. Holland, Cro. Car. - 138, shows, that by custom the same person may summon the jury and act as judge; and here such a custom is found to have existed from time immemorial. There is not, therefore, any pretence for not entering judgment for the crown. *Pell, Serjt., Gaselee, Coltman, and Carter, contrà. It was incumbent on the defendant at the trial to prove, that a custom for the steward to nominate the jury had existed from time immemorial. The mere practice for twenty [*57 years past was insufficient to raise such a presumption, or to justify the opinion expressed by the learned judge, that such evidence upon such an issue was cogent proof. But whatever may be the opinion of the Court upon that point, the custom itself is unreasonable and bad. The 1 R. 3, c. 4 shows that the bailiff is the proper officer to appoint the jury, for it imposes a penalty upon him for returning improper persons. Now he could have no power over the return if merely a summoning officer. The 11 H. 4, c. 9 does not in terms apply to courts leet, but it does in principle; and enacts, that the bailiffs of franchises are to return the inquest, without the nomination of any. [HOLROYD, J. That act does not take away from any the authority which they had before.] The precedent given by SCROGGS, C. J., for a precept to the bailiff for assembling the court, shows that the bailiff is the proper person to select the jury.(a) [ABBOTT, C. J. All your argument proceeds upon this ground, that because the thing may be done in one way, it cannot be done in any other.] If the nature and jurisdiction of the court-leet are considered, it will be found that the bailiff not only may, but must select a jury. At common law it had jurisdiction over all capital offences except homicide; and although that power has been restrained by Mag. Car. c. 17., and Weston, 2, c. 13, still, if the custom here set up be good now, it must have been good before the *passing of those statutes. But it cannot be reasonable that the judge of a criminal court having such ample jurisdiction, should have the power to select the jury and [ *58 decide upon the challenges. [ABBOTT, C. J. The leet jury is rather in the nature of a grand jury.] Still the argument applies, unless it be supposed that (a) See Scriven on Copyhold Tenures, &c. vol. ii. p. 839.