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ceedings were thereupon had in the said suit, that afterwards, to wit, FOR MALICIOUS on, &c. (ƒ) a certain rule and order was duly made by the said court, according to the course and practice of the same court, whereby it was ordered by the said court that the said A. B. should have leave to bring into court in the said suit L.-(g), and that thereupon (unless the said C. D. should accept thereof, together with his costs and charges to be taxed by the master of the said court, in full discharge of the said suit, the said sum of L. should be struck out of the declaration in the said suit, and paid out of the said court to the said C. D. or his attorney, and that upon the trial of the issue the said C. D. should not be permitted to give evidence for the said sum of L.—. And the said A. B. further saith, that afterwards, to wit, on, &c. (h) the said A. B. did bring into court in the said suit, the said sum of L, in the said rule or order mentioned, and that the costs of the said C. D. in the said suit, were duly taxed by the master of the said court, at the instance and request of the said C. D. at, L., which said last-mentioned sum of L- -, together with the said sum of L.- was afterwards, to wit, on, &c. last aforesaid, duly paid to the said C. D. and the said C. D. did accept the same, together with the said sum of L.- in full discharge of the said suit. And the said action was and is by means of the premises, and according to the course and practice of the said court, wholly discharged, ended, and

[295]

plaintiff's favour, and it has been decided that a legal conclusion of the suit must be shewn, Gilb. C. L. and E. 163. 1 Salk. 15. 1 Dougl. 215. Willes. 520. n. a. 1 Esp. Rep. 79. 10 Mod. 209. Bac. Ab. Actions on Case, H. Com. Dig. Action Case Conspiracy, C. 5. ante, vol. i. Index, Mal. Pros. 2 T. R. 225. 232. 1 Saund. 228. b. in notes, and 228 9. but the omission is aided by verdict by the common law. 1 Saund. 228. b. in notes, and 228-9. See the reason, 1 Saund. 228. b. 2 r. R. 228. In Morgan's Prec. 404 5. the declaration merely alleges, "that the plaint was duly ended and determined." And it seems sufficient to say generally, "that the said suit was ended and determined," see 3 Ld. Raym 300. In Wetherden v. Embden, partially reported in 1 Campb. 295. the manner in which the suit ended was shewn and objected to on motion in arrest of judgment, but the court held,

that as it was averred that the suit was
ended, the statement of the manner
how was unnecessary, and the plaintiff'
had judgment. Several of the prece-
dents in the old entries referred to, 8
Wentw. Index, XIX. do not shew the
termination of the first suit. The plain-
tiff in the above action obtained a ver-
dict, notwithstanding the case in 1 Esp.
Rep. 79. 3 Esp. R. 34. and no objec-
tion was taken to this mode of deter-
mining the suit. See Tidd's Prac.
Forms, Index, Judgments for Defend-
ant, as to the mode of describing the
different modes by which the suit ter-
minated in favour of the present plain-
tiff.

(f) The date of the rule examine
the draft therewith.

(g) The sum tendered must have
been under 107 or the declaration must
be framed as above, and not as is some-
times the case. See 291. note r.
(h) The day of taxation.

ARREST.

FOR MALICIOUS determined (i), to wit, at, &c. aforesaid. By means (k) of which said several premises, he the said A. B. whilst he was so imprisoned as aforesaid, not only suffered great pain of body and mind, and was greatly exposed and injured in his credit and circumstances, and was hindered and prevented from performing and transacting his lawful affairs and business by him during that time to be performed and transacted, but was also forced and obliged to lay out and expend, and did necessarily lay out and expend divers large sums of money, in the whole amounting to a large sum of money, to wit, the sum of L., in and about the obtaining of his release from the said arrest and imprisonment, and in and about other the premises (), and hath been and is by means of the premises, otherwise greatly injured and damnified, to wit, at, &c. aforesaid. [Conclude as ante, 287.]

The like,

where the first
suit was dis-
continued
(m).

[⚫ 296]

The like
where the

first suit was
nonprossed
(p).

[Same as the last precedent to the † in page 294, and then proceed as follows :-And the said A. B. in fact *saith, that such proceedings were thereupon had in the said suit; that afterwards, to wit, in Term then next following, the said C. D. did not prosecute his said bill (or writ) against the said A. B. with effect, but voluntarily permitted his said suit to be discontinued for want of prosecution thereof, and thereupon it was then and there considered in and by the said court, that the said C. D. should take nothing by his said bill (or writ), but that he and his pledges to prosecute should be in mercy (n), &c. as by the record and proceedings thereof still remaining in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully appears (o); whereupon and whereby the said suit then and there became and was and is wholly ended and determined, to wit, at, &c. aforesaid. By means, &c. [Conclude as ante, 295.]

[Same as the precedent, ante, 291, to the end of the †, and then proceed as follows:-And the said A. B. in fact saith, that the said C. D. did not prosecute his suit against the said A. B. but therein wholly failed and made default. And thereupon afterwards, to wit, in

(i) Ante 294. note e.

(2) If the plaintiff have sustained any particular damage, besides those inconveniencies which are here enumerated, and which are incidental to the imprisonment, it must be stated, or the plaintiff will not be permitted to give evidence of it on the trial, Peake. C. N. P. 46. 62. [Vide 3 Day 411.]

(2) Cannot recover extra costs, 1 Campb. 151, 2.

(m) See the notes to the last prece

dent; see 8 Went. 329. and the form of a judgment of discontinuance. Tidd's Prac. Forms, 310.

(n) The latter words are not neces-. sary.

() As to this allegation, ante, 230.

n. u.

(p) See the notes to the precedent, ante, 291. See the form of the entry of the judgment of nonpros. Tidd's Prac. Forms, 310.

Term, in the

ARREST.

year of the reign of our said lord the king, it was FOR MALICIOUS considered by the said court of our said lord the king, before the king himself, that the said C. D. should take nothing by his said bill (or writ), but that he and his pledges to prosecute should be in mercy, and that the said A. B. should go thereof without day. &c. as by the record and proceedings thereof still remaining in the said court of our said lord the king, before the king himself at Westminster aforesaid, more fully and at large appears (7), and the said action was and is thereby wholly ended and determined, to wit, at, &c. aforesaid. By means, &c. [Conclude as ante, 295.]

where there

*[Same as the precedent, ante, 291, to the †, and then proceed as fol- The like lows:-And the said A. B. in fact saith, that such proceedings were was a verdict had in the said suit: that afterwards, to wit, in Term, in the for the defendyear of the reign of our said lord the king, it was considered in ant in the former suit (r). and by the said court, that the said C. D. should take nothing by his said bill (or writ) but that he and his pledges to prosecute should be in mercy, &c. as by the record, &c. (s) Whereupon and whereby the said suit became, and was, and is wholly ended and determined, to wit, at, &c. aforesaid. [Conclude as ante, 295.]

[ * 297 ]

For that whereas the said A. B. now is a good, true, honest, just, For maliciously charging and faithful subject of this kingdom (u), and as such hath always bethe plaintiff of haved and conducted himself, and hath not ever been guilty, or until felony before a the time of the committing of the several grievances by the said C. D. justice of the

peace, and causing him to be imprisoned on a warrant, until he was discharged by These four circumstances must be cor- the justice (t) rectly stated in the declaration.

(9) As to this allegation, ante, 230. by expense. Gilb, Cas. L. and E. 185.

n. u.

(r) See Tidd's Prac. Forms, 313. (s) Ante 230. n. u.

(t) See the various precedents in 8 Wentw. Index xv. to xxi. As to this action in general, see 1 Vol. Index. tit. Mal. Pros. Bac. Ab. tit. Action on the sase, H. Com. Dig. tit. Action on the case for a conspiracy, Saund. 228 to 230. in notes, from which it appears, that to support an action for a criminal prosecution, four circumstances must concur: 1st, Falsehood in the original charge, and which must have terminated in favour of the plaintiff. 2dly, The want of probable cause for instituting such proceeding. 3dly, Malice in the prosecutor, which must be proved. 9 East. 361. 4thly, Damage to the accused party, which may be either to his person by imprisonment-to his reputation by scandal or to his property

202. 12 Mod. 208. 1 T. R. 493 to 551.

(u) This inducement is usually inserted, but it is not traversable. Stiles. 118. and if omitted, the declaration would be sufficient. The inducement is similar to that in an action for a libel, or for words, post, 304. In general, a criminal prosecution is injurious to the character of the plaintiff, see supra, note t. Gilb. Cas. L. and E 185. 12 Mod. 208. in which case this inducement of the plaintifi's good character is proper, but if the proceeding were not prejudicial to the plaintiff's character, the inducement should be omitted, and the declaration commence with the statement, that the defendant contriving, &c. to cause the plaintiff to be imprisoned, &c. id. ibid.

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FOR MALICIOUS as hereinafter mentioned, been suspected to have been guilty of *felony, PROSECUTIONS. or of any other such crime, by means whereof he the said A. B. before [* 298] the committing of the said several grievances by the said C. D. as hereinafter mentioned, had deservedly obtained and acquired the good opinion and credit of all his neighbours, and other good and worthy subjects of this realm, to wit, at, &c.—(v); yet the said C. D. well knowing the premises, but contriving and maliciously (w) intending to injure the said A. B in his aforesaid good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace, and to cause him the said A. B. to be imprisoned for a long space of time, and thereby to impoverish, oppress, and wholly ruin him heretoforet, to wit, on, &c. at, &c. went and appeared before one E. F Esq. then and there being one of the justices of our lord the now king, assigned to keep the peace of our said lord the king in and for the county of and also to hear and determine divers felonies, trespasses, and other misdemeanors committed in the said county (x), and then and there, before the said E. F. so being such justice as aforesaid, to wit, at, &c. aforesaid, falsely and maliciously, and without any reasonable or probable cause (y) whatsoever, charged the said A. B. with having (z) feloniously stolen a certain gold watch of him the said C. D. *and upon such charge he the said C. D. falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said E. F. so being such justice as aforesaid, to make and grant his certain warrant, under his hand and seal, for the apprehending (a) and taking of the said A. B. and for bringing him the said A. B. before him the said E. F. or some other of his majesty's justices of the peace in and for the said county of — -, to be dealt with according to law for the said supposed offence; and the said C. D. under and by virtue of the said warrant, afterwards, to wit, on, &c. to wit, at, &c. aforesaid, wrongfully

[299]

(v) The venue is transitory.

(w) As to the allegation of malice, see ante, 291. note s. and 4 Burr. 1974. (x) In Com. Dig. tit. Action case for conspiracy, C. 4. it is said, that it must be alleged in the declaration that the former proceeding against the plaintiff was instituted before a justice, or court of competent jurisdiction to try the of fence, and see Roll. Ab. Action sur case, p. 50. but as it is now settled that an action may be supported for a malicious prosecution of a defective indictment (see 4 T. R. 247. 1 Salk. 15 notes. 2 Strange, 691.), and that case may be supported for a malicious arrest in a court having no jurisdiction. 2 Wils. 302. it seems not material to allege that

the justices, &c. had competent authority.

(y) The allegation is material, though the word "falsely," without "maliciously," would suffice, ante, 297. note t. and ante, 291. note s. 1 Wils. 232. 1 T. R. 544, 5. 4 Burr. 1974. Gilb. Cas. L. and E. 187. 189. See 3 Hawk. P. C. 7 edit. 161. as to what is a probable cause.

(2) The statement of this charge is to be taken from the magistrate's warrant, or from the examination of the defendant on oath, when a sight of them can be obtained.

(a) This is to be taken from the

warrant.

PROSECUTIONS.

and unjustly, and without any reasonable or probable cause (b) what- FOR MALICIOUS soever, caused and procured the said A. B. to be arrested by his body, and to be imprisoned (c), and kept, and detained in prison for a long space of time, to wit, for the space of hours then next following, and until he the said C. D. afterwards, to wit, on, &c. to wit, at, &c. aforesaid, falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said A. B. to be carried and conveyed in custody before the said E. F. so being such justice as aforesaid, and to be committed by the said justice, for a further examination, to a certain gaol or prison of our said lord the king, called, and there, to wit, in the said gaol or prison, he the said C. D. then and there, falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said A. B. to be imprisoned, and to be kept and detained in prison for a long space of time, to wit, for the space of then next following, and until he the said C. D. afterwards, to wit, on, &c. falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said A. B. to be carried and conveyed in custody before one G. H. then and there being a certain other justice of our said lord the king, assigned to *keep the peace of our said lord [300] the king, and to hear and determine divers felonies, trespasses, and other misdemeanours committed in the same county of -, to be examined before the said justice touching and concerning the said supposed crime. [Which said last-mentioned justice having heard and considered all that the said C. D. could say or allege, against the said A. B. touching and concerning the said supposed offence then and there, to wit, on, &c. last aforesaid, at, &c. aforesaid, adjudged and determined that the said A. B. was not guilty of the said supposed offence, and then and there caused the said A. B. to be discharged out of custody, fully acquitted and discharged (d) of the

(b) Ante, 298. n. y.

(e) The imprisonment being one of the damages, in respect of which the action is sustainable, should be stated, see ante, 297. n. t.

(d) The declaration must shew that the former prosecution was at an end, though the omission will be aided by verdict, see the cases, ante, 294, note e, and 1 Stra. 114. Com. Dig. Action upon Case Conspiracy, C. 5. Bac. Ab. Action on Case, H. In 2 T. R. 231. Buller, J. observed, "that the words "released and discharged from the said imprisonment" are not sufficient, they not being equal to the word AcQUITTED, which has a definite meaning, namely, by a jury on the trial, and

VOL. II.

that it must be shewn upon the face of
the declaration, that the original pro-
secution was at an end." But it must
not be inferred from this observation,
that no action can be supported by a
person who was taken before a magis-
trate upon a charge of felony, of which
the magistrate discharges him, and for
which no indictment is afterwards pre-
ferred; if it were otherwise, as the
party accused has no mode of forcing
the prosecutor to prefer a bill, he would
be without redress, and see 3 Esp. R.
165. In a precedent settled by an emi-
nent pleader, the following allegation
was inserted instead of what is above
between the brackets, as follows: "and
thereupon the said C. D. not having any
2 F

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