1823.

REX

ISRAEL,

answer to the objection; but however, the industry of my Brother Bayley has found an act of parliament which puts this matter out of all doubt. That act is not printed in the statutes at large. It is the 28 Hen. 8. c. 12. and the title of it is, "An act declaring the limits of the King's palace of Westminster." The act recites, that the King's palace of Westminster was in utter ruin, and that the King had bought of the Archbishop of York a mansion, palace, and house; and then it provides and enacts, that all the soil, ground, and buildings which his Majesty had purchased of the Archbishop of York, and also the soil of the antient palace, shall be the King's own Palace at Westminster, and is from thenceforth to be taken, deemed, called, and named the King's Palace AT Westminster. Therefore it is quite clear, that the King's Palace of Westminster and AT Westminster, are the same. I apprehend that the purchases there alluded to were made of Cardinal Wolsey, and that the palace was Whitehall. The second objection is, that the indictment alleges that the cause in the Court below came on to be tried, and was then and there tried by a Jury of the county in due manner taken and sworn for that purpose. Now upon referring to the record of the Court below, it does not appear, certainly, that the cause was tried by a Jury of any county, much less that it was tried by a Jury of the county of Middlesex; for the words are," that the Jury came of the neighbourhood of Westminster." Therefore, if even all the Jury were Middlesex men, still they would not be a Jury of that county; but we are of opinion that the words "of the county" may be rejected as surplusage, and then the allegation will stand," that the cause came on to be tried by a Jury in due manner taken and sworn." That is the substance of the allegation, and it was certainly tried by a Jury in due manner taken and sworn from the neighbourhood of Westminster. We therefore think, that these supposed variances ought not to prevail, and that the verdict ought not to be disturbed. Certainly at the trial, I was disposed to yield to one of the objections, but I am glad I did not, for if there had been

TRINITY TERM, FOURTH GEO. IV. an acquittal, and a subsequent indictment preferred, though the variance did not really exist, the defendant might plead it in bar, and so far the public justice of the country might be defeated. I do not often yield in favor of trifling objections, upon indictments for perjury, by reason of the serious consequences which must follow, if I should be mistaken.

1823.

REX ISRAEL.

WHITELEGG v. RICHARDS, Gent. (In Error.)

Saturday,
June 7.

CASE against the defendant, as clerk of the Insolvent Declaration in

case against a

clerk of the Debtors' Court, for wrongfully,

Insolvent

falsely, and

order, pur

Debtors' Court, for wrongfully, falsely, maliciously, and unlawfully making out and issuing an order, purporting to be an order of the Insolvent Debtors' Court, for the discharge forthwith of a person named Strettell Chorlton, who was maliciously, adjudged by the Lancashire Sessions to remain in custody unlawfully for two years, at the suit of the plaintiff, whereby (Chorlton making out an having been discharged forthwith accordingly) the plaintiff porting to be was deprived of the means of recovering the debt and costs that Court, for the discharge due to him from the prisoner. On demurrer to the declara- forthwith of tion," in the Court of Common Pleas, judgment was given debtor, who for the defendant (a), and error was brought in this Court on that judgment.

"The case was argued on a former day by Campbell for the plaintiff, and Talfourd for the defendant. On the part of the plaintiff, the authorities cited were Com. Dig. tit. Action for Misfeasance, A. 1. For Negligence, A. 2. Deceit, A. 6. Fitzh. N. B. 97. C. D. Smith v. Winford (b),

For

(a). Vide, 3 Brod. & Bing. 188, where the pleadings are set out at length; but there the word "maliciously" is omitted.

(b) Lutw. 96.

an order of

an insolvent

was adjudged

by the Quarter Sessions to be detained in

custody for two years, at plaintiff, with

the suit of

an averment

that the InsolCourt did not

vent Debtors'

pronounce any such order, or give any authority to the defendant to

write, make out, or issue the same, whereby the prisoner was discharged forthwith, and by means whereof plaintiff was injured, and had lost all means of enforcing payment of the debt and costs due to him from the prisoner. Error being brought on the judgment of C. P. :-Held, that the supposed order of the Insolvent Debtors' Court was not to be understood as the order of that Court until set aside, and that the declaration was not demurrable for not averring that the supposed order was in fact set aside.

1823.

Bernardiston v. Some (a), Lane v. Cotton (b), Douglas v. Yallop (c), Schinotti v. Bumsted (d), Harman v. TappenWHITELEGG den (e), Slipper v. Mason (f), and Cooke v. Champneys (g).

V.

RICHARDS.

THE COURT took time to consider the case, and judgment was now delivered by

ABBOTT, C. J.-This was a writ of error on a judgment of C. P., in an action on the case. The judgment was in favor of the defendant, and the plaintiff below is also plaintiff in error. The declaration alleges in substance," that defendant being clerk of the Court for relief of insolvent debtors, and intending to injure plaintiff, and to cause Strettell Chorlton forthwith to be discharged from custody, without paying or satisfying the plaintiff's damages and costs, and to deprive him of the means of recovering the same, without any authority from the Court for relief of insolvent debtors, wrongfully, maliciously, falsely, and unlawfully, made out an order, purporting to be an order from the Court for relief of insolvent debtors, entitled "In the matter of the petition of Strettell Chorlton, a prisoner, in actual custody in the castle of Lancaster, seeking the benefit of the act, passed for the relief of insolvent debtors," and directed to the keeper or gaoler of the said gaol or castle, and purporting thereby, that the said Court for the relief of insolvent debtors, did order that the prisoner should be discharged from custody as to the plaintiff, at whose suit the prisoner was detained in the custody of the said keeper or gaoler, whereas in truth, and in fact, the Court for relief of insolvent debtors did not at any time pronounce any such order, or give any authority to the defendant to write, make out, or issue the same, by means whereof the said order being exhibited to the keeper of the said gaol, Strettell

Chorlton was thereupon forthwith discharged from custody, and suffered and permitted to go at large wheresoever he pleased, against the will of the plaintiff; and that Strettell Chorlton did then and there go from and out of such custody wheresoever he pleased, the said damages and costs then and still being and remaining wholly unsatisfied to the plaintiff, by means whereof the plaintiff hath been greatly injured, and hath lost all means of enforcing payment from Strettell Chorlton of the damages and costs aforesaid." This may be taken as the substance of all the counts in the declaration. But it further appears by some of them (to which it is not necessary to refer with particularity), that Chorlton had been brought up before the Justices at the Quarter Sessions for Lancashire, and by them adjudged to remain in custody for the space of two years, at the suit of the plaintiff, before he should be discharged. In the argument before us, some authorities were quoted to shew that an action on the case may be maintained against a sheriff's officer for falsity or misconduct in his office, whereby a party sustains special damage; and in this case the damage is plainly shewn by the loss of the means of enforcing the payment of the debt and costs in an action against the gaoler or sheriff. It is not necessary to repeat the authorities which were quoted, because the general principle is not controverted. But on the part of the defendant it was insisted, that the order mentioned in the declaration must, in this case, be understood as the act or order of the Court, although the order might not be conformable to the words actually pronounced by the Court, and that it should be so understood until set aside, 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 ultimately from the premises, assuming the premises were correct, for we are all of opinion that the premises are incorrect, and we think that in this declaration the instrument in question cannot be understood to be the act or order of the Court. The in

1823.

WHITELEGG

tention of the defendant in writing out, making and issuing the order, is charged to be wrongful and malicious, and there is a positive and formal averment of fact, that the RICHARDS. Court did not pronounce any such order, because the Court gave no authority to the defendant to write, make out, or issue the same. Whether this allegation can or cannot be proved, or in what manner it can be proved, is quite a dist tinct matter, and with which we have no concern at presenta It is true the instrument is called an order, and purporting that the Court did order the discharge of Chorlton; but looking at the whole declaration, and adverting to the allegation which has been introduced, we think that the word "order," as here used, must be understood to denote the form only. Thus the statute 45. Geo. 3. c. 89, against for gery, mentions the forging of any deed, will, bond, bills of exchange, bank notes, and many other instruments; and the legislature must in this statute, and in many others passed on the same subject, be understood to mean those instruments which are the subjects of forgery, and not such as are in form only instruments of the description there mentioned. The word "order" must be understood in the same sense; and this is perfectly conformable to the common language.. and understanding of mankind. For these reasons we think the judgment should be reversed,

L

Judgment reversed. or.

Monday,

June 9.

The KING. The Rev. W. I. JOLLIFFE, Clerk.

An immemo- INFORMATION, in the nature of a quo warranto,

rial custom for

a manor to nominate the

the steward of calling on the defendant to shew by what authority he claimed to be mayor of the borough of Petersfield. At on the court the trial before Burrough, J. at the Winchester Summer As

jury, to serve

leet at the

election of the mayor of a borough is good in law.

Twenty years usage, uncontradicted, is cogent evidence for the jury to presume that such a custom is immemorial.

.1