FOR MALICIOUS said supposed offence;] and the said C. D. hath not further proPROSECUTIONS. Secuted his said complaint, but hath *deserted and abandoned the same, [* 301 ] and the said complaint and prosecution is wholly ended and determined, to wit, at, &c. aforesaid. Second count. Damage applicable to both counts. [* 302] And whereas also the said C. D. further contriving and maliciously (e) and wickedly intending as aforesaid, heretofore, to wit, on, &c. at, &c. aforesaid, falsely and maliciously, and without any reasonable or probable cause whatsoever, charged the said A. B. with having committed a certain offence punishable by law, to wit, felony; and upon such last-mentioned charge, he the said C. D. then and there, to wit, on the same day and year last aforesaid, at, &c. falsely and maliciously caused and procured the said A. B to be arrested by his body, and 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 at the expiration of which said time, he, the said A. B. was duly discharged and fully acquitted of the said last-mentioned offence, to wit, at, &c. aforesaid (ƒ).—By means of which said several premises (g), he the said A. B. hath been, and is greatly injured in his said credit and reputation, and brought into public scandal, infamy, and disgrace with and amongst all his neighbours, and other good and worthy subjects of this kingdom, and divers of those neighbours and subjects, to whom his innocence in the premises was unknown, have, on occasion of the premises, suspected and believed, and still do suspect and believe, that the said A. B. hath been and is guilty of felony; and also the said A. B. hath, by means of the *premises, suffered great anxiety and pain of body and mind, and hath been forced and oblig ground or evidence to support the said (e) This count, in respect of its gene rality, is frequently adopted as a second count, see Roll. Ab. Action sur Case, Q. pl. 5. It may be questionable, however, whether it would be sufficient upon demurrer. (f) The accusation of felony before the magistrate, or in any other course of legal proceeding, cannot be treated as libellous, 1 Saund. 132. n. 1. but if the defendant, at any other time, accuse the plaintiff of the felony, counts may be here added for the words, 1 Saund. 133. (g) We have already seen that the damage may be imprisonment, scandal, or expense, ante, 297, note t. these and any other particular damage should be circumstantially stated, or such as are not necessarily incidental to the premises will not be admissable in evidence, ante, 295. note k. PROSECUTIONS. ed to lay out and expend divers large sums of money, in the whole FOR MALICIOUS amounting to a large sum of money, to wit, the sum of L.—, (h), in and about the defending of himself in the premises, and the manifestation of his innocence in that behalf, and hath been greatly hindered and prevented, by reason of the premises, from following and transacting his lawful and necessary affairs and business for a long time, to wit, for the space of and also, by reason and means of the said premises, he the said A. B. hath been, and is, otherwise greatly injured in his credit and circumstances, to wit, at, &c. aforesaid. [Conclude as ante, 287.] in the [Inducement of good character, &c. and that plaintiff had not been For malicious guilty of perjury, and of defendant's malicious intention, similar to the prosecution in Middlesex precedent, ante, 297, to the t, and then proceed as follows:-] to of an indictwit, on the day of year of the reign of our lord ment for perthe now king, at the general session (j) of oyer and terminer of our into K. B. by jury, removed said lord the king, holden in and for the county of at the session certiorari, house for the said county, before E. F.-G. H.-I. K. and L. M. upon which the plaintiff Esqrs. and others, their fellow justices of our said lord the king, assign- was acquitted ed [by his majesty's letters patent, under the great seal of the united (i). kingdom of Great Britain and Ireland, to the same justices before named, and others, in the same letters patent, named, &c. (k)] to hear and.*determine divers felonies, trespasses, and other misdemeanors committed within the said county, he the said C. D. falsely and maliciously, and without any reasonable or probable cause whatsoever, indicted and caused and procured to be indicted, the said A. B. by the name of A. B. late of the parish of — in the county of — -, for that, &c.—[here state the material parts of the indictment, and then proceed as follows:-] which said indictment our said lord the king afterwards, for certain reasons, caused to be brought before him, to be Removal by determined according to the law and custom of England; and the certiorari (?). Trial and acsaid A. B. further says, that the said C. D. afterwards falsely and maquittal. [303] (h) As to what costs, see 1 Campb. demeanor. 1 Bla. Rep. 385. 1 T. R. 151, 2. (i) See the various precedents in 8 Wentw. Index xv. to xxI. and the notes to the precedent, ante, 297. See a precedent for maliciously indicting plaintiff's wife at Hick's Hall, where she was acquitted, 2 Rich. C. P. 158. The proceedings in the original prosecution are to be described as in the record of acquittal, a copy of which must be produced on the trial of the action, if the former prosecution were for a felony, but not when it was for a mis 518. Therefore, if the court will not in (j) This statement is to accord with (k) The allegation between the brackets is unnecessary and is better omitted, 2 Rich. C. P. 158. (1) If there was no removal. See 2 Rich. C. P. 159. PROSECUTIONS. Judgment thereon. FOR MALICIOUS liciously (m), and without any reasonable or probable cause, prosecuted and caused to be prosecuted the said indictment against the said A. B. until the said A.B. afterwards, to wit, at the sittings at nisi prius (n), holden on next after the end of the term of. in the (0) year of the reign of our said lord the now king, before Lloyd Lord Kenyon, chief justice of our said lord the king, assigned to hold pleas before the king himself, Roger Kenyon, Gent. being associated unto the said chief justice, according to the form of the statute in such case made and provided, was in due manner, and by due course of law, acquitted of the said premises in the said indictment, charged upon him by a jury of the said county of Middlesex; and whereupon it was afterwards, to wit, in fifteen days from the day of Easter, in Easter term (p), in the 40th year of the reign aforesaid considered (q) and adjudged by the court of our said *lord the king, before the king himself, the same court then and still being holden at Westminster, in the county of Middlesex, that the said A. B. should depart thence without day in that behalf, and the said A. B. was, and is duly discharged of and from the premises in the said indictment specified. As by the record and proceedings thereof remaining in the said court of our said lord the king, before the king himself at Westminster aforesaid, appears. By means whereof, &c.-[State the damage as ante, 301, and any other damage which the plaintiff has sustained, and conclude as ante, 287.] [304] For compos ing and pub lishing a li [Commencement and conclusion, as ante, 287] For that whereas (s) the said A. B. now is a good, true, honest, just, and faithbel, accusing ful subject of this realm, and as such hath always behaved and conplaintiff of be ing forsworn on a trial, and of perjury (r). (m) Malice must be proved. 9 East. Rich. C. P. 152. 361. (n) If stated that the acquittal was "in the court of our lord the king, be fore the king himself," when it was at nisi prius, the variance would be fatal. See 11 East. 508. 2 Campb. 193 where see the law as to variances in general, and see 9 East. 157. (0) This day is material, and should correspond with the record of acquittal. When a variance is fatal, and when not. See 4 T. R. 590. 560. Willes. 517. 9 East. 157. (s) It is usual to commence the de claration, either for a libel or for words, with an inducement of the plaintiff's good character, and of his innocence of the crime imputed to him by the defendant, C. D. Action for Defamation, G. 1. but as these inducements are not traversable, see Styles, 118. 1 Lev. 297. they may be omitted, and the declaration may commence with a statement of defendant's malicious intention to injure the plaintiff. When the libel, or slander, does not affect the plaintiff in (p) This also must agree with the his moral character, but merely imrecord, see 4 T. R. 590. 560. (q) It is sufficient to state that plaintiff was acquitted by a jury, Willes, 517. 11 East. 513, 4. (r) See the precedents of declarations for libels, and for words referred to in 8 Wentw. Ind. page iv. to xii. 2 putes to him insolvency, or incapacity in the way of his trade, &c. this inducement of good character is inappli cable, and the declaration should commence with an inducement respecting the trade, &c. ter. General in ducement of ducted himself, and until the committing of the several grievances by FOR LIBELS. he the said C. D. as hereinafter mentioned, was always reputed, General inducement of esteemed, and accepted by and amongst all his neighbours, and other plaintiff's good and worthy subjects of this realm, to whom he was in any wise good characknown to be a person of good name, fame, and credit, to wit, at, &c. (t) And whereas also, the said A. B. hath not ever been guilty, or until the time of the committing of the said several grievances by innocence of the said C. D. as hereinafter mentioned, been suspected to have been the particular charge. *guilty of perjury (u), or any other such crime. By means of which said premises, he the said A. B. before the committing of the said General conseseveral grievances by the said C D. as hereinafter mentioned, had quences of deservedly obtained the good opinion and credit of all his neighbours, plaintiff's good characand other good and worthy subjects of this realm, to whom he was in ter. any wise known (v), to wit, at, &c. aforesaid. And whereas also, before Special inducethe committing of the several grievances by the said C. D. as in the ment that an first and second (x) counts hereinafter mentioned, a certain action had been tried, (t) The venue is transitory, and the court will not change it, 1 T. R. 571. and 647. unless it be written, as well as published, only in one county, 3 T. R. 306 and 652. (u) See ante, 304. note s. If the slander do not amount to a charge of any specific offence, such as perjury, or theft, &c. the inducement, instead of the word in italics, should run thus :"of the offences and misconduct hereinafter mentioned to have been charged upon and imputed to the said A. B. or of any other such offences or misconduct." (v) This inducement also is not traversable, but it is usually inserted. When the declaration is for a libel, or words affecting the plaintiff in his pro. fession, trade, &c. the inducement respecting such profession, &c. usually precedes the above inducement, and which, in such case, in addition to the statement of the plaintiff's good char. acter as above, runs, "and also, by reason of the premises, he the said A. B. in the way of his aforesaid trade and business, was daily and honestly acquiring great gains and profits therein, to wit, at, &c. aforesaid." 3 Mod. 112. (w) When the words themselves are such as can only be understood in a criminal sense, as when the plaintiff is directly charged with a theft or perjury, &c. no inducement of any extrinsic mat- (x) When any of the counts, either [305] action had and plaintiff examined as a witness (w). FOR LIBELS. been depending in the court of our lord the now king, before the [306] king himself, at Westminster, in the county of Middlesex, wherein General state. ment of defendant's ma one E F. was the plaintiff, and one G. H. was the defendant, and which said action had been then lately tried at the assizes in and for the county of— -, and on such trial the said A. B. had been, and was examined on oath, and had given his evidence as a witness for and on the part and behalf of the said E. F. to wit, at, &c. aforesaid. Yet the said C. D. well knowing the premises, but greatly envying the licious intent. happy state and condition of the said A. B. and contriving, and wickedly and maliciously (y) intending to injure the said A. B. in his said good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace with and amongst all his neighbours, and other good and worthy subjects of this kingdom, and to cause it to be suspected and believed by those neighbours and subjects, that he the said A. B. had been and was guilty of perjury (z), and to subject him to the pains and penalties by the laws of this kingdom made and provided against, and inflicted upon persons guilty thereof (a), and to vex, harass, oppress, impoverish, and wholly ruin him the said A. B. heretofore, to wit, on &c. (b) at, &c. aforesaid, † falsely, wickedly, and maliciously (c) did compose (d) and publish (e), and cause and *procure (ƒ) to be published, of and concerning the said A. B. (g) and of and concerning [307] reference to any extrinsic matter, the (y) The declaration must shew a (2) Or if the charge be not of any specific offence, insert the allegation, ante, 305. note u. (a) Or if the charge affect the plaintiff in his trade, &c. insert," and thereby to injure the said A. B. in his said trade and business." (b) The precise day is not material. (c) As to the words falsely and maliciously, see supra, n. y. and infra. (d) It is usual, when there is any evidence of that fact, to state, in one count, that the defendant composed the libel, as to the evidence of which, see Bac. Ab. tit. Libel, B. 1. (e) The declaration must shew a pub. lication, 2 Bla. Rep. 1037. 1 Saund. 242. n. 1. Com. Dig. Action for Defamation, G. 4. Bac. Ab. tit. Libel, B. 2. but the word “published” is not absolutely necessary, and the words "printing and causing to be printed,” have been holden sufficient. 2 Bla. Rep. 1037. 1 Saund. 242. n. 1.—132. n. 2 and 3. Com. Dig. Action for Defamation, G. 4. (f) A statement that the defendant published, "or" caused to be published, is sufficient, but the uncertainty may be aided by the defendant's pleading 8 Mod. 328. Vin. Ab. tit. Libel. E. pl. 4. 1 Show. 125. (g) It is usual here to state, that the libel was of and concerning the plaintiff, and of the preceding inducements; but this seems unnecessary when, in the subsequent part of the declaration, it is shewn that the particular slanderous parts of the libel, related to the plaintiff, see infra. notes n. and o. |