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It was obječted for the defendant that he is only a deputy. poft-master, and that this action cannot be maintained against him, but ought to have been brought against the poft-mastergeneral; but we are all of opinion that this action well lies against the defendant; for that deputy-post-masters are fubiifting fubftantial officers, and answerable for their own misfeasances, and nonsealances, and the business of the post office could not be executed without them; they have original offices, under the controul of the post-master-general; this case is like the case of Stock versus Harris, in Easter term 1771, B. R. wherein judg. ment was given for the plaintiff; and we are all of opinion that judgment must be entered for the plaintiff.
Nota. It was said by one of the judges, that though there is a penalty of 5l. given for every offence against this Äatute of Queen Ann, yet as a man may suffer much more, by the deputy post-master not doing his duty, this action on the case well lies for damages; see 2 Wilson 145. resolved that an action upon the case for fallly and maliciously suing out a commission of bankrupt which was afterwards superseded, is a very proper
action at law for damages, although the Lord Chancellor has power by the flatutes of bankrupt of Geo. 1. and 5 Geo. 2. to give 2001.
Carty - versus Ashley. C. B.
Amendment HIS was
a rule made upon the motion of Serjeant of a capias ad respondendum,
Walker, for the plaintiff to shew cause why the proceed. there being
ings Should not be set aside, because there were not fifteen days not fifteen between the teste and return of the capias ad respondendum, the days between fame being tested the 11th day of June (the first day of this return thereof, term] and returnable in eight days of the Holy Trinity [the 13th 2 Black. Rep. of June.] 918. S. C.
Upon Serjeant Davy's coming to shew cause against this rule, the court enlarged the fame until another day, and made a rule upon the defendant to shew cause at that day why the plaintiff should not have leave to amend the capias ad respondendum.
Per Gould J.--Although this court cannot amend an original writ, because it issues out of the court of Chancery; yet this court can amend all mefrie process, and also an attachment of privilege which is in the nature of an original; no error can be assigned in meile process, this is a mere mistake of the officer [the filacer) and ought to be amended,
Per Nares J.—Justice ought not to be delayed for such a mere lip as this. In the case of Atkinson versus Taylor, 2 Wilson 117. the capias ad refpondendum was set aside, because there were not fifteen days between the tefie and return thereof, but without costs. Note, The reporter heard no more of this motion, therefore quære the books of the secondaries, whether the matter was ever moved again, .
Walter and another versus Stewart a prisoner in the 2 Black. Rep. Fleet.
918. S. c,
THE defendant Stewart was arrested on the 18th of Odo: treaty furblicae
ber 1772, by virtue of a capias ad respondendum returnable between the on the morrow of All.fouls in Michaelmas term laft, and on that plaintiff and
the defendant day (the 3d of November] he was committed to the Fleet. who is a
prisoner, the plaintiff
' is not obliged to declare against him within two terms according to the rules of the court. On the 7th day of June, being the EJ oyn-day of this present term, [and not before] the plaintiffs declared against the defendant; and it was moved by Serjeant Davy on behalf of the defendant that he might be discharged out of custody of the warden of the Fleet by supersedeus, because the plaintiffs had not declared against him within two terms, inclusive of the terin wherein the capias ad respondendum was returnable according to the rules and practice of this court; a rule was made to shew cause.
Upon fhewing cause by Serjeant Kemp in behalf of the plaintiff, it appeared to the court upon affidavits, that a treaty for an accommodation between the plaintiffs and the defendant was commenced on the 25th day of January in Hilary term last, and was from thenceforth continued, and not ended, until about the mid:lle of Easter term last; that the de. fendant proposed to pay down 151. in part of the debt and costs to the plaintiffs, and to give them a bond and warrant of attorney to confess judgment thereupon for the remainder, being 461, to which the plaintiffs consented and agreed; whereupon the defendant executed a bond and warrant of attorney accord. ingly, which was delivered to the plaintiffs or their attorney; but the defendant not being able to raise and pay down the 15l. in part according to his proposal
, the plaintiffs, about the middle of Easter term laft, delivered up to the defendant the bond and warrant of attorney, so the treaty of accommodation then ended ; and afterwards, on the 7th day of June as aforesaid, the plaintiffs declared against the defendant in custody of the warden of the Fleet.
Per curiam. It is for the benefit of prisoners that plaintiffs will listen to proposals of accommodation, but no plaintiff would listen to such proposals, if prisoners should thereby become supersedable ; the defendant himself hath been the occasion of the plaintiff's not declaring within the time limited by the rules and practice of the court, and therefore the rule to thew cause why a super fedeas should not iffue must be discharged.
14 Geo. III. 1773.
2 Black. Rep. 926. S. C.
Beau verfus Bloom. C. B. (called Beanv. Bloom.] [Occupier of Norfolk WILLIAM BLOOM, late of Ludham in
(to wit) the county of Norfolk, Blacksmith, was attached and lands,
to answer Robert Beau, of a plea of trespass upon who has common in the the case, &c. And whereupon the said Robert by John Howle Lord's waste, his attorney complains and says, that he the said Robert on the may set up ur first day of July in the year of our Lord 1772, and for the space sulhes as an- of two years then last past, was, and from thence continually nexed to his hitherto hath been, and still is lawfully poffeffed of and in, and right of com- the occupier of a certain messuage and divers acres, (10 wit) Special action ten acres of land with the appurtenances, lying and being in upon the case the parish of Ludham in the county of Norfolk, and by reason for disturbing thereof the said Robert during all the time aforesaid had, and of the plaintiff in his right of
right ought to have had and still of right ought to have comidon common and of pasture in and upon a certain waste or common called Ludham right to cut
Waste; otherwise Ludham Common, otherwise Ludham Common and take rushes upon
Pasture, in the parish of Ludham aforesaid, containing by estithe common mation 500 acres in the said county of Norfolk, for all his for litter for bis cattle by
commonable cattle, levant and couchant upon his said messuage an ancient
and land with the appurtenances, every year at all times of the year, as belonging and appertaining to his said melluage and land with the appurtenances; and the faid Robert further says, that there is, and from time whereof the memory of inan is not to the contrary there hath been, an ancient and laudable custom, that every occupier of lands and tenements in the said parish of Ludham, who is intitled to have such common of pasture in and upon the said waste or common as aforesaid, hath used and been accustomed to mow and cut down rulhes, growing and being in and upon the said waste or common every year, in and during the summer-quarter of the year, according to the old style of computation of time heretofore used in England, and to put and place the same rushes so cut down in heaps in and upon the said waste or common to be dried and cured, and to take and carry away the same when dried and cured for litter for the cattle fo levant and couchant as aforesaid, of every such occupier of lands the tenements in the parish of Ludham aforesaid; who is in. titled to have such common of pasture as aforesaid ; yet the said William well knowing the premises, but contriving and mali. ciously intending to injure and prejudice the faid Robert in this behalf, and to deprive and hinder him of the benefit and advantage of his faid common of pasture belonging to his
faid messuage and lands, and also to deprive and hinder the said Robert of the profit and advantage of mowing, cutting down, taking and carrying away the rufhes growing and being in and upon the said waste or common for litter for his cattle as aforesaid, while he the said Robert was possessed of, and occupied his faid messuage and land with the appurtenances, and had such right of common of pasture as aforesaid, and also had such right of mowing, cutting down, taking and carrying away such rushes growing and being in and upon the said waste or common in manner aforesaid, for litter for the cattle of the said Robert, levant and couchant upon his said mefluage and land with the appurtenances aforesaid, he the said William, (to wit) on the said first day of July, in the year of our Lord 1772, and on divers other days and times between that day and the day of suing forth the original writ of the said Robert at the parish'aforesaid, wrongfully and injuriously spoiled mowed and cut down divers, (to wit) ten acres of the grass and rushes then growing and being in the faid waste or common, and wrongfully and injuriously took and carried away divers, (to wit) fifty waggon loads of the grass and rushes fo by him the faid William mowed and cut down as aforesaid, in the said waste or common, whereby the said Robert could not for a long time, (to wit) during all the time last aforesaid, have, use and enjoy his said common of pasture, and his said right of mowing, cutting down, taking and carrying away rushes in and upon the said waste or common for litter for the cattle of the said Robert as aforesaid, in so ample and beneficial a manner as he ought to
have liad and enjoyed the same, but during all that time was deprived of great part of the profit and benefit thereof. (There was another count in trover for two waggon loads of rulhes) which the plaintiff lays to his damage.
The defendant pleaded not guilty; issue being joined thereon, the same was tried at the last asfizes for the county of Norfolk, when a verdict was found for the plaintiff, and general damages
upon both the counts in the declaration. Serjeant Sayer moved in arrest of judgment, and took several exceptions to the declaration. ift, Thai a custom to take a profit in the soil of another is bad, and to prove this he cited Gatewood's case, 6 Rep. 59. b. where it is resolved, that a custom for the inhabitants in a vill within any ancient messuage there to have common of pasture, is bad. To which it was answered for the plaintiff, that Gatewood's case does not apply to the case at bar, for it does not prove that an occupier of land may not have common in the foil of another, and may also by cuflom have a right to cut down and take rushes for litter for his cattle levant and couchant on his land. And to fhew that a custom to take a profit in the soil of another is good was cited for the plaintiff, 3. Lev. 160. The Mayor and Commonalty of Lynn Regis versus Taylor, where it was resolved by the whole court, that a custom for freemen of Lynn, being owners or masters of ships, to dig for ballast in the soil of the Mayor and Burgesses of Lynn is good, although such freemen and masters of ships are not incor. porated, or members of the corporation, and Gatewood's case was there cited to shew the custom was bad; so a custom to dry nets upon another's soil is good; also a custom of the Hundred of Wirksworth in Derbyshire to dig for lead in another's foil is good, which is certainly to take a profit in another's foil. It is a good custom, that when a man hath agifted his cattle in my park, in the time of a great snow, for necessity to cut the branches of the oaks for them. 1 Roll. Abr. 560. pl. 12.—The court over-ruled this objection.
2. It was objected by Serjeant Sayer, that the title to the common is ill set out in the declaration, for it only alleges that the plaintiff was polled of a messuage and lands, and by reason thereof, he, of right, had and ought to have common, &c. and cited 1 Ld. Raym. 266. Dorney versus Cashford. To which it was answered for the plaintiff, that this is an a&tion for a tort against a stranger, a mere wrong-doer, and it is sufficient for the plaintiff to allege that he is polifjed, &c. he need not set out any title whatsoever, and this hath been the constant and uniform
way of declaring in actions for disturbances of common and similar wrongs ever since the case of Strode versus Byrt. 4