In the Common Pleas. next after in Trinity The like in Term, 51 Geo. 3. (c) (to wit.) C. D. was attached to answer A. B. of a plea of trespass on the case, &c. and thereupon the said A. B. by E. F. his attorney, complains, for that whereas, &c. [State the cause of action, and then conclude as follows :]—Wherefore the said A. B. saith that he is injured, and hath sustained damage to the value of L. and therefore he brings his suit, &c. (d), (e). [⚫288] I. FOR TORTS TO THE PERSON. For keeping a [Commencement as above.]-For that whereas the said C. D. heredog used to tofore, to wit, on, &c. (ƒ) and from thence, for a long space of time, bite mankind to wit, until, and 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. 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, (c) Ante, 12. n. a. 17. k. (e) As to the liability of the owner (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 knowledge of the propensity, see 2 Stra. 1264. 2 Esp. R. 482. Com. Dig. tit. Action on Case for Negligence, A. 5. It may be advisable to add a count (ƒ) Any day just before the injury for not keeping the dog properly sewas committed. (g) The venue is transitory. cured, 2 Esp. R. 482.; or properly fed. the sum of L., 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, 287.] Pledges, &c. KEEPING MISCHIEVOUS ANIMALS. [Same as the last precedent to the t.]-to hurt, chase, bite, worry, The like for and kill sheep and lambs (k), which said *dog afterwards, to wit, on, keeping a dog accustomed to &c. aforesaid, and on divers other days and times, between that day bite sheep or and the day of commencing this suit, to wit, at, &c. aforesaid, did hunt, other animals chase, bite, and worry divers, to wit, one hundred sheep and one hun(i). [289] dred lambs of the said A. B. of great value, to wit, of the value of L. 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 L.- 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 A. B. being also of great value, were then and there greatly terrified. damaged, and injured, and of no use or value to the said A. B. to wit, at, &c. aforesaid. To the damage, &c.-[Conclusion as ante, 287.] in the county of [Commencement as ante, 287.]-For that whereas the said C. D. Against the before, and at the time of the committing of the grievance hereinafter occupier of an house adjoinnext mentioned, was possessed of a certain messuage, with the ap- ing a public purtenances, situate and being in a certain street, called in street, for laythe parish of which said street, at therein, ing rubbish the time of the committing of such grievance, and from thence hith- whereby erto 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, his carriage chariots, and other carriages, at their free will and pleasure, to wit, at, (1). &c. yet the said C. D. well knowing the premises whilst he was so possessed of the *said messuage, with the appurtenances as aforesaid, [290] plaintiff was overturned in (i) See the notes to the last precedent, 287, 8. (k) See ante, 287 8. 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 mischief he had done before. 1 Ld. Raym. 110. Salk. 13. or to state a propensity to injure animals in general, see 12 Mod. 335-6. Ld. Raym. 608. 1 Salk. 13. 2 Esp. R. 482. which would be sufficient, if not specially demurred to. VOL. II. (1) See precedents, 8 Wentw. 428. OF NUISANCES. CONSEQUENCES 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 C. D. in that respect afterwards, to wit, in the night-time of the said day -, in the year aforesaid, to wit, at, &c. aforesaid, a certain chariot, or carriage of the said A. B. of great value, to wit, of the value of L., with the said A. B. therein, then and there going, and passing in and through the said street, was accidentally driven upon and against the said dirt and rubbish, and was thereby then and there overturned, by means whereof the said A. B. then and there became and was greatly hurt, bruised, cut, and wounded, and sick, sore, &c.—(same damage as ante, 288, and if the plaintiff's carriage were injured, state such damage, and the expense of repair,)—to wit, at, &c. aforesaid. Second count, omitting the statement of the defend ant's possession of the house. And whereas also before and at the time of the committing of the grievance by the said C. D. as hereinafter mentioned, there was, and from thence hitherto hath been, and still is, a certain other common and public highway, in the parish aforesaid, 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 [291] carriage. By means, *&c. [Same damage as in the first count, and conclude as ante, 287.] For a malicious arrest under a latitat, where the former suit terminated by plaintiff's taxing costs upon a rule for the payment of money into court (m). [Commencement in case as ante, 287.]-For that whereas (n) the said (m) See the great variety of prece dents indexed in 8 Wentw. Index xv. to xxi. As to this action in general, see vol. i. Index, Mal. Pros. Co. Lit. 161. a. n. 4. 2 Wils. 305. Bac. Ab. 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. 1 T. 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 court [For Note (n) see the next page.] ARREST. C. D. heretofore, to wit, on, &c. (o) at, &c. (h) not then having any FOR MALIGIOUS reasonable or probable (9) cause of action whatsoever against the said A. B. to the amount of the sum of money for which the said C. D. maliciously caused the said A. B. to be arrested, as hereinafter mentioned (r), but wrongfully and unjustly contriving and intending to imprison, harrass, oppress, and injure the said A. B. falsely and maliciously (8) caused and procured to be sued and prosecuted out of [292] 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 latitat (u), at the suit of the said C. D. against the said A. B. directed to the sheriff of. by which said writ our said lord the king commanded the said sheriff that he should take the said A. B. 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 answer the said C. D. of a plea of trespass, and also to a bill of the said C. D. 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 said sheriff should then to had no jurisdiction, 2 Wils. 302. 376. and will always suffice. 1 Campb. 295. (n) It has been usual to commence the declaration by a recital that "by the law of the realm no person ought to be arrested, &c. for a debt under 10%. &c.; see 8 Wentw. 328. Morgan's Pre. 400-2. but as the 12 Geo. 1. c. 29. (amended by 5 Geo. 2. c. 27. made perpetual by 21 Geo. 2. c. 3. and extended to inferior courts by 19 Geo. 3. c. 70.) enacts, that when the cause of action does not amount to 107. or upwards, the plaintiff shall not proceed by arrest, this public and general law need not be recited. (0) The teste of the writ, or the day it was actually issued; but the first is preferable; ante, 210. notes f. and g. (p) The venue is transitory. (4) Whether there was a probable cause, is a mixed proposition of law and fact, 1 Wils. 232. 1 T. R. 544-5. (r) As to the sum for which a party may be arrested, see supra, note n. Sometimes the precedents run, "to the amount of 10%. or upwards;” but when there was a debt to that amount, and the arrest has been for too much, the above precedent is the proper form, (s) As to the allegation of defendant's malicious intent, see 2 Wils. 305. and 1 Wils. 233. The words "falsely," or, "wrongfully," have been holden to be sufficiently expressive of a malicious intent; 1 Saund. 242. a. n. 2. 1 East. 563. Com. Dig. Action on Case for Conspiracy, C. 3. Legal definition of malice, Gilb. Cases, L. & E. 193. The malice may be implied from the want of probable cause, 1 T. R. 545. As to proof of malice in a criminal prosecu. tion, see 9 East. 361. (t) This allegation is unnecessary, and if the writ be stated to have been sued out in vacation, would render the declaration demurrable, ante, 210. g. (u) As to the statement of a latitat, or bill of Middlesex, see ante, 201. of a special original, ante, 214 of a capias, in C. P. ante, 215. If the writ were issued into Middlesex, observe note d. ante, 210. The writ should be correctly stated, 1 Hen. Bla. 49. 1 T. R. 238. Quare, though usual, if necessary to state the writ thus fully. ARREST. [⚫ 293] FOR MALICIOUS have there that writ. And the said C. D. 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 L.10, 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 L.- -(z), and the said writ (or precept), *being so marked and indorsed for bail as aforesaid, the said C. D. afterwards and before 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 L.10, 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 A. B. 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 C. D. 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 the said sum of money for which he the said C. D. so maliciously caused the said A. B. to be arrested and held to bail as aforesaid, 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 holden The termina- to *bail as aforesaid.† And the said A. B. further saith, that such protion of the for mer suit (e). [294] (x) The day on which the writ is arrest, or some day just before it. stated to have been issued. (y) The venue. (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 encumbers the plaintiff with unnecessary evidence, 1 B. and P. 281. (a) The precise time is not material, but it is usual to insert the day of the (b) Some place in the county in which the arrest was made. (c) Ante, 291. 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. (e) It must be averred, that the former suit determined in the present |