The like in next after in Trinity Term, 47 Geo. III.(c) , (to wit.) C D was attached to answer AB of a plea of trespass on the case, &c. and thereupon the said AB by EF his attorney, complains, for that whereas, &c. [State the cause of action, and then conclude as follows:]-wherefore, the said AB saith that he is injured, and hath sustained da mage to the value of .(d) and therefore he brings his suit, &c. * 239 I. FOR TORTS TO THE PERSON. [Commencement as above.] For keeping a For that whereas the said CD heretofore, to wit, on, &c.(f) dog used to bite mankind, and from thence, for a long space of time, to *wit, until, and (e) at the time of the damage and injury to the said A B as hereinafter mentioned, to wit, at, &c.(g) wrongfully and injuriously did keep a certain dog, he the said C D, during all that time, well knowing that the said dog then was used, and accustomed to attack and bite mankind,(h) to wit, at, &c. aforesaid, and which said dog afterwards, and whilst the said C D so kept the same as aforesaid, to wit, on, &c. aforesaid, at, &c. aforesaid, did attack and bite the said A B and did then and there greatly lacerate, hurt and wound, one of the legs of him the said A B. (c) Ante, 1. n. (a). (d) Supra, n. (b). (e) As to the liability of the owner of animals for mischief done by them, see vol. 1. Index, Animals. See the precedents, 8 Went. Index, 23. Com. Dig. Pleader, 2 P. 2. Com. Dig. Action upon the Case for Negligence, (h) This scienter must be alleged and proved, Dyer, 25. b. 29. a. 2 Salk. 662. 2 Stra. 1264. 1 Ld Raym. 606. 12 Mod. 332. 1 Lutw. 90. Cro. Car. 487 What is sufficient evidence of the defendant's notice of the propensity, see 2 Stra. 1264. 2 Esp. Rep. 482. Com. Dig. tit. Action on Case for Negligenec, A. 5. It . (ƒ) Any day just before the injury may be advisable to aid a count for was committed. A. 5. (g) The venue is transitory. not keeping the dog properly secured, 2 Esp. Rep. 482. or properly fed. And thereby he, the said A B, then and there became, and was sick, sore, lame and disordered, and so remained, and continued for a long space of time, to wit, for the space of six months then next following, during all which time he the said A B, thereby suffered and underwent great pain, and was thereby then and there hindered and prevented from performing and transacting his lawful affairs and business, by him during that time to be performed and transacted; and also, by means of the premises. he, the said A B, was thereby then' and there put to great expense, costs and charges, in the whole amounting to a large sum of money, to wit, the sum of —1. in and about endeavouring to be cured of the said wounds, sickness, lameness and disorder, so occasioned as aforesaid, and hath been, and is, by means of the premises, otherwise greatly injured and damnified, to wit, at, &c. aforesaid. To the damage, &c. [Conclusion as ante, 238.] Pledges, &c. * 240 [Same as the last precedent to the obelisk.]—to hurt, chase, bite, worry and kill shrep and lambs,(k) which said *dog afterwards, to wit, on, &c aforesaid, and on divers other days and times, between that day and the day of commencing this suit, to wit, at, &c. aforesaid, did hunt, chase. bite and worry divers, to wit, one hundred sheep and one hundred lambs of the said A B of great value, to wit, of the value of . there then found and being by means whereof, divers, to wit, fifty of the said sheep, and fifty of the said lambs of the said A B, being of great value, to wit, of the value of -. then and there died, and became of no value to the said A B, and the residue of the said sheep and lambs of the said AB, being also of great value, were then and there greatly terrified, damaged, and injured, and of The like for keeping a dog accustomed to bite sheep or other animals. () See the notes to the last pre- chief he had done before. 1 Lord sedent. (k) See note ante, 238. n. (u). If there be no evidence of the defendant's having notice of the dog's propensity to kill the particular cattle which have been injured, it may be advisable to state what particular mis Lord Raym. 110. Salk. 13. or to state a ! A Consequences no use or value to the said A B, to wit, at, &c. aforesaid. To the damage, &c. [Conclusion as ante, 238.] of nuisances. Against the occupier of a ing a public street, for in, whereby overturned in his carriage. (1) *241 [Commencement as ante, 238.]-For that whereas the said house adjoin- CD, before, and at the time of the committing of the grievance hereinafter next mentioned, was possessed of a certain messuage, with the appurtenances, situate and being in a certain street, called, in the parish of in the county of which said street at the time of the committing of such grievance and from thence hitherto hath been, and still is, a common public street and highway for all persons to go, return, pass and repass, in, by, and with coaches, chariots, and *other carriages, at their free will and pleasure, to wit, at, &c. yet the said CD, well knowing the premises whilst he was so possessed of the said messuage, with the appurtenances as aforesaid, to wit, on, &c. at, &c. aforesaid, wrongfully and unjustly, put and placed divers large quantities of dirt and rubbish in the said street, near to the said messuage, and wrongfully and injuriously kept and continued the same therein, and during the night time of that day, without fixing or placing, or causing to be fixed or placed, any light, or signal, at or near such dirt and rubbish, to denote or shew that the same were so there as aforesaid, by means, and in consequence of which said negligence and improper conduct of the said CD in that respect afterwards, to wit, in the night time of the said day of (1) See precedents, 8 Wentw. 428. 2 Rich. C. P. 141, 142. as to the liability of the occupier in a case of this nature, see ante, vol, 1. Index, tit. Nuisance Land, 1 B. & P. 404. 2 Hen. Bl. 350. Com. Dig. Action on Case for a Nuisance, 8 Went. Ind. 28. 72. An action is not sustainable for a public nuisance, unless the plaintiff has sustained some particu lar damage, Com. Dig. tit. Action on the Case for a Nuisance, C. Co. Lit. 56. a. 9. Co. 112. b. 113. 2 T. R. 667. 3 Wils. 412. as ante, 239. and if the plaintiff's carriage were injured, state Consequences such damage and the expense of repair)—to wit, at, &c. afore- of nuisances. said. the defendant's posses house. And whereas also before, and at the time of the committing Second count, omitting the of the grievance by the said CD as hereinafter mentioned, statement of there was, and from thence hitherto hath been, and still is, a certain other common and public highway, in the parish afore- sion of the said, for all the liege subjects of our said lord the king, to go, pass and repass, at all times of the year, at their free will and pleasure; yet the said C D, well knowing the premises, heretofore, to wit, on the day and year aforesaid, to wit, at, &c. aforesaid, wrongfully and unjustly caused to be put and placed divers large quantities of dirt and rubbish, in the said last-mentioned common and public highway, whereby the said A B being a "liege subject of our said lord the king, lawfully passing in and along the said last-mentioned highway in a certain carriage, was then and there with great force and violence overturned in the said last-mentioned carriage. By means, &c. [Same damage as in the first count, and conclude as ante, 238.] *242 Commencement in case as ante, 238.] For that whereas(n) For a malicithe said CD heretofore, to wit, on, &c.(o) at, &c.() not then der a latitat, (m) See the great variety of precedents indexed in 8 Wentw. Index, 15 to 21. As to this action in general, see vol. 1. Index, Mal. Pros. Co. Lit. 161. a. n. 4. 2 Wils. 305. Bac. Abr. Action on Case, H. Com. Dig. Action upon Case for a Conspiracy, A. &c. The gist of the action is the unfounded arrest, 2 Wils. 305. for no action can be supported merely for a malicious suit, 1 Salk. 14. 1 B. & P. 205. Com. Rep. 190. Whenever the imprisonment is under regular process, trespass cannot be supported, and case is the only remedy, 3 T. R. 185. Hob. 266. 1T. R. 544. When the arrest was on process out of an inferior court, the declaration will be similar to this except in the statement of the process. Case, may be supported, though the VOL. II. court had no jurisdiction, 2 Wils. 302. (n) It has been usual to commence (0) The teste of the writ, or the day it is actually issued; but the first is preferable; ante, 162. notes (h) and (7). (1) The venue, is transitory. 5,28] ous arrest un where the former suit terminated by plaintiff's taxing costs upon a rule for the money into payment of court.(m) arrest. For malicious having any reasonable or probable(g) cause of action whatso ever against the said A B, to the amount of 101. or upwards,(7) but wrongfully and unjustly contriving and intending to imprison, harass, oppress and injure the said A B, falsely and maliciously() caused and procured to be sued and prosecuted out of the court of our said lord the king, before the king himself, (the said court *then and still being holden at Westminster, in the county of Middlesex,)(t) a certain writ of our said lord the king, called a latilat(u) at the suit of the said CD against the said A B directed to the sheriff of * 243 by which said writ our said lord the king commanded the said sheriff that he should take the said AB if he should be found in his bailiwick, and him safely keep, so that he might have his body before our said lord the king, at Westminster, on to answer the said C D of a plea of trespass, and also to a bill of the said CD, against the said A B for —l. upon promises, according to the custom of the said court of our said lord the king, before the king himself to be exhibited, and that the sheriff should then have there that writ. And the said CD contriving and intending as aforesaid, afterwards and before the delivery of the said writ (or precept) to the said sheriff to be executed as hereinafter mentioned, to wit, on, &c. aforesaid,(x) at, &c.(y) aforesaid, falsely and maliciously, and without having any reasonable or probable cause of action whatsoever against the said A B to the amount of 101. or upwards, caused and procured the said writ (or precept) to be, and the same then and there was marked and indorsed for bail for D (t) This allegation is unnecessary, and if the writ be stated to have been sued out in vacation, would render the declaration demurrable, ante, 162. n. (i). () As to the statement of a latitat, or bill of Middlesex, see ante, 162. of a special original, ante, 166. of a capias in C. P. ante, 167. If the writ were issued into Middlesex, ob. serve n. (f), ante, 162. The writ should be correctly stated, 1 H, Bl.. 49. 1 T. R. 238. (x) The day on which the writ is. stated to have been issued. (y) The venue. |