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 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 uncontra dicted, is suffi the existence of an immemorial custom. A custom for the steward of certain persons to the bailiff, to be summoned on the jury, is a good custom. QUO The KING against JOLIFFE. UO 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 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, 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 sheriff's E 4 1823. The KING against JOLIFFE. 1823. The KING against JOLIFFE. sheriff's tourn, and its jurisdiction is the same. (a) 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 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. (b) 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 recognize 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 re-disseisin 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 entrusted with the selection of that jury. Crane v. Holland (c) shews, 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 entering judgment for the crown. (a) Com. Dig. Leet (B). (b) 1 Roll. Abr. Court (Y), pl. 1. Pell |