MALICIOUS ARRESTS. procure certain persons, to wit, E. F. and G. H. to become bail (x) for the now plaintiff, causing special bail to be put in for him to the said action in The bail-bond. her majesty's said court, as required by the said writ, and upon that occasion he the plaintiff and the said E. F. and G. H. were forced and obliged to and did then enter into a certain bond or obligation for the purpose aforesaid. Whereas in truth and in fact the now defendant, at the time of obtaining the judge's order for the said writ, and suing forth the said writ and of the said arrest and imprisonment, had not any reasonable or probable cause of action against the now plaintiff to the amount of the said sum of money for which the now defendant so maliciously caused the now plaintiff to be arrested and held to bail as aforesaid, or whereby or for which he the now plaintiff, by the law of this realm, or by the practice of the said Court of our said lady the queen, before the queen herself, could or ought to have been arrested or holden to bail as aforesaid. And the now plaintiff further saith that such proceedings were thereupon had in the said suit, that afterwards, to wit, on &c. (z) a certain rule and order (a) 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 [let this agree with the order] the now plaintiff should have leave to bring into Court in the said suit £-, (b) The termination of the former suit. (y) (x) If the plaintiff did not find bail, or if there be any doubt as to the proof of the bailbond, this allegation, and that of the costs of procuring bail, had better be omitted. If the allegation be inserted, take care that it accords with the language of the bond. (y) This action must not be brought before the first suit has been legally determined; and it must be averred that the former suit terminated in the present plaintiff's favour, and a legal conclusion of the suit must be shown; and if the suit be not proved to have been determined in the particular manner allegea, it was, before the new rules of pleading, ground of nonsuit; Year Book, 2 R. 3, 9, pl. 22; Dyer, 284; Yelv. 117; Gilb. Cases Law & Evid. 163; Com. Rep. 190; 1 Salk. 15; Dougl. 215; Willes, 250, n. a.; 1 Esp. Rep. 79; 10 Mod. 209; Bac. Abr. Action on the Case, H.; Com. Dig. Action, Case, Conspiracy, C. 5; 2 T. R. 225, 232; 1 Saund. 228 b. in notes, and 228, 229; and see Combe v. Capron, 1 Mood. & Rob. 398; but the omission is aided by verdict by the common law; 1 Saund. 228 b. in notes, and 228, 229. See the reason, 1 Saund. 228 b.; 2 T. R. 228. This allegation, unless specially traversed, is now admitted; Watkins v. Lee, 5 M. & W. 270. It seems sufficient, and if so, safer, to say generally, "that the said suit was ended and determined;" see 3 Ld. Raym. 300. In Morg. Prec. 404, 405, the declaration merely alleges," that the plaint was duly ended and determined." In Wetherden v. Embden, partially reported in 1 Campb. 295, the manner in which the suit ended was shown 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, and it should seem a count averring generally a discon tinuance is sufficient; 5 Price, 540. Several of the precedents in the old entries referred to 8 Wentw. Index, xix. do not show the termination 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, and T. Chitty's Forms, Index, Judgment for Defendant, as to the manner of describing the different modes by which the suit terminated in favour of the present plaintiff. An averment that the suit is ended, is evidenced by proof of the rule to discontinue upon paying of costs, and that the costs were taxed and paid; 1 Stark. 48; 4 Campb. 213, S. C. The acceptance of the debt and costs in satisfaction of the action under a judge's order, or a rule of reference, is a sufficient determination of a suit, but the averment must be appropriate; Combe v. Ca. pron, 1 Mood. & Rob. 398. In the Common Pleas it seems that the plaintiff must prove the discontinuance by an entry of it on the roll; semble, 1 M. & P. 195. How far an agreement to determine a suit, afterwards made a rule of Court, is sufficient, see 2 D. & R. 343. In an action for a false arrest upon a plaint in the Sheriff's Court in London, evidence was given that the usual course of that Court, upon the abandonment of a suit by the plaintiff, was to make an entry in the minute book of" withdrawn," and it was held that proof of such entry in the minute book was sufficient to prove the determination of the suit; 14 East, 216. The mere proof that no declaration was filed within a year after the return of the writ is sufficient to establish that the former action is at an end; 3 Bar. & Adol. 397. (z) The date of the rule. (a) See another form, 3 Bing. 297; 11 Moore, 59, S. C.; and see next note. (b) This statement must be according to the facts of the particular case, and may be easily altered to make it applicable to a deter. and that thereupon (unless the now defendant 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 now defendant, or his attorney, and that upon the trial of the issue the now defendant should not be permitted to give evidence for the said sum of MALICIOUS ARRESTS. -. And the now plaintiff further saith that afterwards, to wit, on &c., (c) the now plaintiff 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 now defendant in the said suit were duly taxed by the master of the said Court, at the instance and request of the now defendant, at £, which said last-mentioned sum of £- -, together with the said sum of £, were afterwards, to wit, on &c., last aforesaid, duly paid to the now defendant, and the now defendant 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 course and practice of the said Court, wholly discharged, ended and determined. (d) By means of which said several Damages. (e) premises the now plaintiff, 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 [state enough] in and about the procuring the said suit, obtaining of his release from the said arrest and imprisonment, and in and about other the premises, (f) and hath been and is by means of the premises otherwise greatly injured and damnified. term then next Same as the last precedent, to the asterisk in page 436, and proceed as follows:] And the plaintiff in fact saith, that such proceedings were thereupon had in the said suit, that afterwards, to wit, in following, the now defendant did not prosecute his said suit against the now plaintiff with effect, but voluntarily permitted the same to be discontinued for want of prosecution thereof, and thereupon it was then considered in and by the said Court, that the now defendant should take nothing by his said writ, as by the record and proceedings thereof still remaining in the said Court of our said lady the queen, before the queen herself, at Westmin stated, or the plaintiff will not be permitted (f) Cannot recover extra costs; Ry. & (g) See the notes to the last form, and 5 Price's Rep. 540; and Pierce v. Street, 3 Barn. & Adol. 397; see 8 Wentw. 329; and the form of a judgment of discontinuance, Tidd's Prac, Forms, 310. As to the plaintiff's discontinuing being prima facie evidence of malice, see 4 Barn. & Cress. 21; 6 D. & R. 12, S. C.; sed vide 1 Stark. 48, ante, 434, n. (k), The like, where the first suit was discontinued.(g) MALICIOUS The like, where the first suit was non-prossed. (i) The like, where there was a ver fendant in the ster aforesaid, more fully appears; (h) whereupon and whereby the said suit then became and was and is wholly ended and determined. By means, &c. [Conclude as in the last precedent. Same as the form, ante, 434 to 436, to the end of the asterisk, and then proceed as follows:] And the now plaintiff further saith, that the now defendant did not prosecute his suit against the now plaintiff, but therein wholly failed and made default. And thereupon afterwards, to wit, on &c. it was considered by the same Court that the now defendant should take nothing by his writ, but that he and his pledges to prosecute (k) should be in mercy, and that the now plaintiff should go thereof without day &c. as by the record and proceedings thereof, still remaining in the said Court, more fully and at large appears; (1) and the said action was and is thereby wholly ended and determined. By means, &c. [Conclude as ante 437. Same as the form, ante, 434 to 436, to the asterisk, and then proceed as dict for the de- follows:] And the now plaintiff further saith, that such proceedings were had in the said suit, that afterwards, to wit, on &c., it was considered in former suit. (m) and by the said Court that the now defendant should take nothing by his writ, but that he and his pledges to prosecute should be in mercy, &c. as by the record &c. (n) Whereupon and whereby the said suit became and was and is wholly ended and determined. By means, &c. ante, 437. For causing the plaintiff to be arrested by virtue of a capias issued under a judge's order which has been rescinded. (o) , A. D. Conclude as day of For that whereas the defendant heretofore, to wit, on the not then having any reasonable or probable cause for believing that the plaintiff was about to quit England, but wrongfully, maliciously and unjustly contriving and intending to imprison, harass, oppress and injure the now plaintiff, and to cause and procure him to be arrested and imprisoned, and to compel him to find bail or to deposit his money as a security, according to the statute in that case made and provided, wrongfully, maliciously, and unjustly procured from, one of the judges of one of her majesty's superior Courts of law at Westminster, to wit, one of the judges of her majesty's Court of Queen's Bench at Westminster, a certain special order, directing the now plaintiff to be held to bail for the sum of £—, by falsely and maliciously representing to the said that the now plaintiff was about to quit England unless forthwith apprehended; and thereupon afterwards, to wit, on the the defendant wrongfully and maliciously caused and procured to be sued and prosecuted out of day of ——, A. D. (h) As to the allegation referring to the re. cord of the discontinuance, see ante, 437. Under that reference the record must be produced, 5 Price, 540, and therefore when the proceedings and judgment of discontinuance have not been, as they may be, entered of record, it should be omitted. It would in all cases in Queen's Bench suffice to omit the averment. The production of the rule to discontinue, &c. would be sufficient, ante, 436, n. (y); 1 Stark. 48; 4 Campb. 214. But it seems otherwise in Common Pleas; 1 M. & P. 191. (i) See the notes to the form, ante, 434, &c.; Lil. Ent. 35; see the form of the entry of the judgment of non pros, Tidd's Prac. Forms, 310. That a plaintiff entering judg ment of non pros is not prima facie evidence of malice, see 4 Taunt. 7; and see 3 Bar. & Adol. 397. (k) Though the words " and his pledges," &c. be not in the record, the variance in inserting them would not be fatal; 13 East, 547; see 2 B. & C. 6; 3 D. & R. 228, S. C. () As to this allegation, see supra, n. (h). (m) See Tidd's Prac. Forms, 313. (n) Supra, note (h). (0) This form was used in the case of The Duke of Normandy v. Barrett, Home Circuit, Spring Assizes, 1842; but as it has never been decided to be good, it must not be altogether relied upon. And see the notes to the form, ante, 434, 435, 436. ―, that the said Court of our lady the queen a certain writ of our said lady the queen the said to be dis as to the said action, on the ground that the now plaintiff was not about to quit England at the the obtaining of his release from the said arrest and imprisonment and in MALICIOUS ARRESTS. fendant and his For that whereas heretofore, and before the grievance hereinafter men- Case by plaintioned, to wit, on &c. in the Court of Queen's Bench, [or "Common Pleas," or "Exchequer of Pleas,"] at Westminster, in the county of Middlesex, the said W. D. by the consideration and judgment of the said Court, recovered against the plaintiff £54: 19s. which were adjudged to the said W. D. in tiff against deattorney, for not releasing plaintiff out of prison after satisfaction MALICIOUS of debt and costs, &c. (p) The issuing a capias ad satisfaciendum against the now plaintiff. Indorsed to levy £32. Plaintiff taken in execution. Plaintiff tenders Defendant's refusal to release plaintiff. and by the said Court for his damages by him sustained, as well on occasion of the not performing certain promises before then made by the plaintiff to the said W. D. as for his costs and charges by the said W. D. about his suit in that behalf expended, whereof the now plaintiff was convicted. And the said W. D. the then plaintiff in the said action, by the said L. C. his attorney in that behalf, afterwards, to wit, on &c., for the obtaining satisfaction of a certain residue of the said damages so recovered as aforesaid by the said W. D. (part of the said damages having been before duly satisfied) sued and prosecuted out of the Court of our said lady the queen, at Westminster aforesaid, a certain writ called a writ of capias ad satisfaciendum, directed to the sheriff of the county of, whereby our said lady the queen commanded the said sheriff that he should take the plaintiff if he should be found in his bailiwick, and him safely keep, so that he might have his body before the [barons of her majesty's Exchequer] at Westminster, immediately after the execution of the said writ, to satisfy the said W. D. [£34: 19s.] residue of the said [£54: 19s.] which the said W. D. had so recovered as aforesaid, and that he should have then there that writ; and the said writ was afterwards duly indorsed by the defendants with an indorsement, directing the said sheriff to levy a certain sum of money thereon, to wit, the sum of [£32,] besides sheriff's poundage and lawful expenses, and was afterwards, to wit, on &c. last aforesaid, delivered by the now defendants to the said sheriff, so indorsed as aforesaid, to be executed in due form of law; and the said sheriff afterwards, to wit, on &c. last aforesaid, in obedience to and by virtue of the said writ, took and arrested the plaintiff by his body, and detained and had him in his custody under the said writ for the residue of the said debt and costs. And the now plaintiff, so being in custody as aforesaid, afterwards, to wit, on the [ninth] day of [January,] A. D. [1824,] tendered and offered to pay to the said W. D. by the hands of the said L. C. as his attorney as aforesaid, a large sum of money, to wit the sum of [£34: 13s.] in full satisfaction and discharge of the said damages, costs and charges so adjudged to the said W. D. as aforesaid, being the said sum so indorsed on the said writ as aforesaid, together with sheriff''s poundage and lawful expenses as aforesaid, and being the whole amount which was lawfully due or demandable of and from the now plaintiff to or by the now defendant under the said writ, and then demanded of the now defendant, L. C. as such attorney as aforesaid, to receive the said sum in full discharge and satisfaction of the said damages, costs and charges, and sheriff's poundage, to instruct and inform the said sheriff that the same was satisfied, and to give the said sheriff authority to discharge the plaintiff from his custody under the said writ. Yet the defendants wilfully and maliciously devising and intending to oppress, harass, and injure the now plaintiff, and to cause and procure the plaintiff to be longer imprisoned and detained by the said sheriff under the said writ, without any reasonable cause whatsoever, then wilfully and maliciously refused to accept or receive the said sum of money, so tendered as aforesaid, in discharge of the said damages, costs and charges, sheriff's poundage and lawful expenses as aforesaid, and did not nor would instruct or inform the said sheriff that the said W. D. was satisfied of his said damages, costs (p) That this action lies, see 4 Barn. & Cress. 26; 6 D. & R. 129, S. C.; the above being the declaration used in that case. |