approbation by Lord Chief Baron Comyns, in his Digest, tit. 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 (a), that in every case where an officer is entrusted 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 (b), 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 (c), 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 (d) 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 (c) and Milward v. Sergeant (f) are authorities to shew that an allegation that the defendant,

66

knowing, &c., and wrongfully intending to injure the plaintiff," amounts to an allegation of malice. But, in the present case malice is expressly alleged.

1823.

WHITELEGG

against

RICHARDS.

1823.

WHITELEGG

against RICHARDS.

It was contended in the court below, that the plaintiff had sustained 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 (b); or of a person in custody upon a capias utlagatum after outlawry upon mesne process, Cooke v. Champneys (c); or

(a) 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 gaol 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.

of one committed by commissioners of bankrupt for refusing to answer interrogatories. Barnes v. Carey. (a) 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 shew that the order was not the order of the court, was the rule to set it aside, but non constat that such 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

(a) Moore, 834, 1 Rolle's Rep. 47. 2 Bulstr. 236.

1823.

WHITELEGG

against

RICHARDS.

VOL. II.

E

to

1823.

WHITELEGG against RICHARDS.

to set it aside; yet surely 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 gaoler 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 IG. 4. c. 119. s. 21. expressly directs that the court shall order that the prisoner be discharged. 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 court.

1828.

Cur. adv. vult.

WHITELEGG against RICHARDS.

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