(z) and the said writ (or precept) "being so marked and in- For malicious dorsed for bail as aforesaid, the said CD afterwards and before arrest. the said return thereof, to wit, on, &c.(a) at, &c.(b) aforesaid, contriving and intending as aforesaid, and without having any reasonable or probable cause of action whatsoever, against the said A B to the amount of 107. or upwards, falsely and maliciously(c) caused the said A B to be arrested by his body under and by virtue of the said writ, (or precept,) and to be thereupon imprisoned 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 A B, in order to procure his release and discharge from the said imprisonment, was forced and obliged to and did then and there procure certain persons, to wit, E F and G H to become bail(d) for the appearance of him the said AB in the said court of our said lord the king, before the king himself, at the return of the said writ, (or precept,) to answer to the said CD, according to the exigency of the said writ, (or precept,) and upon that occasion he the said A B and the said E F and G H were forced and obliged to and did then and there enter into a certain bond or obligation for the purpose aforesaid, whereas in truth and in fact he the said C D at the time of suing forth the said writ, and of the said arrest and imprisonment, had not any reasonable or probable cause of action against the said A B to the amount of 10. or upwards, or whereby or for which he the said A B, by the law of this realm, or by the practice of the said court of our said lord the king, before the king himself, could or ought to have been arrested, or (2) According to the fact. Sometimes it is stated that this indorsement was made by virtue of an affidavit, filed, &c. but this should be omitted, as it only incumbers the plaintiff with unnecessary evidence, 1 B. & P. 281. (a) The precise time is not material, but it is usual to insert the day of the arrest, or some day just before it. (b) Some place in the county in which the arrest was made, and if the venue be not laid in that county, state such venue under a scilicit, at the end. of the sentence. (c) Ante, 242. n. (s). (d) If the plaintiff did not find bail, or if there be any doubt as to the proof of the bail-bond, this allegation and that of the costs of procuring bail, should be omitted. arrest For malicious holden to *bail as aforesaid. And the said A B further saith, that such proceedings were thereupon had in the said suit, nation of the that afterwards, to wit, on, &c.(f) a certain rule and order The termi former suit. (e). * 246 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, .(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 -. should be struck out of the declaration in the said suit, and paid out of the said court to the said CD or his attorney, and that upon the trial of the issue, the said CD should not be permitted to give evidence for the said sum of. And the said A B further saith, that afterwards, to wit, on, &c.() the said A B did bring into court in the said suit, the said sum of. in the said rule or order mentioned, and that the costs of the said CD in the said suit were duly taxed by the master of the said court, at the instance and request of the said CD at -7. which said last-mentioned sum of. together with the said sum of 7. was afterwards, to wit, on, &c. last aforesaid, duly paid to the said C D, and the said CD did accept the same, together with the said sum of. in full discharge of the said suit. And the said action was and is by means of the premises, and according to the 1 (e) It must be averred that the the old entries referred to, 8 Wentw. Index, 19. do not shew the termina■ tion of the first suit. The plaintiff in the above action obtained a verdict, notwithstanding the case in 1 Esp. Rep. 79. 3 Esp. Rep. 34. and no objection was taken to this mode of determining the suit; see Tidd's Prac Forms, Index, Judgments for Defend ants, as to the mode of describing the different modes by which the suit terminatedin favour of the present plain" tiff. (f) The date of the rule; cxamine the draft therewith. (g) The sum tendered must have been under 10. or the declaration must be differently framed. (h) The day of taxation. arrest. course and practice of the said court wholly discharged, end- For malicious ed and 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, 238.] where the first suit was discontinued. (1). [Same as the last precedent to the obelisk in page 245. and The like 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 CD 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 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 ;(m) whereupon and * 247 (i) Ante, 245. n. (e). (k) If the plaintiff have sustained any particular damage, besides those inconveniences 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, (1) See the notes to the last prece- (m) This is not necessary, antes 182. n. (7). For malicious whereby the said suit then and there became and was, and is prosecution. wholly ended and determined, to wit, at, &c. aforesaid. By means, &c. [Conclude as ante, 246.] The like where the first suit was non-propossed.(n) The like where there [Same as the precedent, ante, 242. to the end of the obelisk, 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 term, in the And there year of the A B, but therein wholly failed and made default. [Same as the firecedent, ante, 242. to the obelisk, and then was a verdict proceed as follows:] And the said A B in fact saith, *that for the de- such proceedings were had in the said suit, that after fendant in the wards, to wit, in term, in the year of the reign of our said lord the king, it was 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, &c. as by the record, &c.(9) Whereupon and whereby the said suit became, and was, and is wholly ended and determined, to wit, at, &c. aforesaid. [Conclude as ante, 246.] (n) See the notes to the precedent, ante, 242. See the form of the entry of the judgment of nonpros; Tidd's Prac. Forms, 310. (0) Unnecessary ante, 182. n. (9). (p) See Tidd's Prac. Forms, 313: (g) Ante, 247. n. (m). For that whereas the said A B now is a good, true, honest, For malicious prosecution. just and faithful subject of this kingdom,(s) and as such hath For malicialways behaved and conducted himself, and hath not ever been ously charging the plainguilty, or until the time of the committing of the several tiff of felony grievances by the said CD, as hereinafter mentioned, been before a jussuspected to have been guilty of felony, or of any other such peace, and crime, by means whereof he, the said A B before the committing of the said several grievances by the said as hereinafter mentioned, had deservedly obtained and acqui- he was red the good opinion and credit of all his neighbours, and other good and worthy subjects of this realm, to wit, at, &c. tice of the causing him to be impri CD soned on () yet the said CD well knowing the premises, but contriving and maliciously (u) intending to injure the said ♬ 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 AB to be imprisoned for a long space of time, and thereby to impoverish, oppress and wholly ruin him heretofore, to wit, on, &c. at, &c. went and appeared before one E F, esquire, 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 misde (r) See the various precedents in 8 Wentw. Index, 15 to 21. As to this action in general, see vol. 1. Index, tit. Mal. Pros. Bac. Abr. tit. Action on the Case, H. Com. Dig. tit. Action on the Case for a Conspiracy. 1 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. 4thly. Damage to the accused party, which may be either to his person by imprisonment to his reputation by scandal-or to his property by expense, Gilb. C. L. and E. 185. 202. 12 Mod. 208. 1 T. R. 493 to 551. These four circumstances must be correctly stated in the declaration. (s) 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, 255. In general, a criminal prosesution is injurious to the character of the plaintiff, see supra, note (r). Gilb. C. L. and F. 185. 12 Mod. 208. in which case this inducement of the plaintiff'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. (t) The venue is transitory. (u) As to the allegation of malice, see ante, 242. n. (s), and 4 Burr. 1974. а warrant, until dis charged by the justice.(r) * 249 |