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such entrance.

To notice persons who unnecessarily travel.

To demand the

sons.

Penalty for omission to answer.

Duty of tythingmen

sons in certain cases,

And if such entrance shall be refused to any tythingPenalty for refusing

man, the landlord, or licensed person shall forfeit the sum of forty shillings, for each and every offence.

And the said tythingmen are further authorized and empowered, within their respective towns, to examine all persons whom they shall have good cause, from the circumstances thereof, to suspect of unnecessarily travel

ling on the Lord's day, and to demand of all such pernames of such per. sons the cause thereof, together with their names and

places of abode.

And if any person shall refuse to give answer, or shall give a false answer to such demand, he shall pay a fine not exceeding five pounds, nor less than twenty shillings.

And if the reason given for such travelling, shall not to prosecute such per- be satisfactory to such tythingman, he shall enter a com

plaint against such person, before a justice of the peace in the county where the offence is committed, if such person lives in such county ; otherwise, shall give information thereof to some grand juryman to be by him laid

before the grand jury, for their consideration and preTythingman's oath

sentment. good evidence.

Furthermore, by the same statute, s. 11, the oath of of any tythingman shall be deemed full and sufficient evidence, in any trial for any offence against the act, unless, in the judgment of the court or justice, the same shall be invalidated by other evidence that may be produced.

Moreover, by the same statute, s. 12, the special authority given to tythingmen, by the act, for preventing the breaches thereof, shall not be construed or understood to exempt any sheriff, grand jurors, constables, or other officers or persons whatsoever, from any obligation or duty, to cause the act to be put in execution; but they shall be held to take due notice and prosecute all breaches thereof, such special authority notwithstanding:

Duty of other officers.

VI. Of the recovery and appropriation of the penalties incurred by a breach of the statute.

By statute, 1791, c. 58, s. 13, all the penalties and fines

By statute, 1791, c. 58. incurred and paid for any of the offences aforesaid, shall be for the use of the commonwealth. And all said offences, the penalties against which exceed forty shillings, shall be prosecuted by presentment of the grand jury, before the court of sessions, in the county wherein the offence may be committed : but all the offences, the penalty whereof does not exceed forty shillings, (except the offender lives out of the county in which the offence may be committed,) shall be prosecuted by complaint before a justice of the peace in such county: but when the offender lives out of such county, he may be prosecuted by presentment as aforesaid, although the penalty does not exceed forty shillings.

The above fines being found to be not so appropriated v as to answer the intended purpose ; it is provided by the additional act, 1796, c. 89, s. 2, that the fines and penalties in the first, second, third, and fifth enacting clauses of the statute, 1791, c. 58, shall be, one moiety thereof to the town wherein the offence shall be committed, and the other moiety thereof to any person or persons who shall inform and sue for the same; to be recovered by a complaint to a justice of the peace, with costs of suit, or the said fines may be recovered by presentment of the grand jury before the court of sessions in the county wherein the offence or offences shall be committed, and when thus recovered, shall enure to the town wherein the offence shall be committed.

by statute,

, C, 89.

Note. The regulations contained in the first, second, and third sections of the statute of 1791, c. 58, shall be construed to extend to the time included between the midnight preceding, and the sunsetting of the same day. See same statute, s. 4.

TITLE CIV.

MALICIOUS PROSECUTION.

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An action on the case lies against any person who maliciously and without probable cause, prosecutes another, whereby the party prosecuted sustains an injury, either in person, property or character.

1. The grounds of this action.

2. Of an action on the case, in the nature of a conspiracy.

3. The declaration.
4. The defence.
5. The evidence.

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Ibid.

I. The grounds of this action.

The grounds of the action for a malicious prosecution are the malice of the defendant, either express or implied, want of a probable cause, and an injury sustained by the plaintiff, by reason of the malicious prosecution, either in his person by imprisonment, his reputation by the scandal, or in his property by the expense.

By analogy to the action for a malicious prosecution, the law, in modern times, has permitted an action to be maintained for maliciously arresting or holding a party to bail, either where there is not any debt due, or where the party is held to bail for a larger sum than is really due.

To support this action, malice and that the arrest was without probable cause, must be alleged and proved.

It has been holden, that evidence of suing out a writ 2 Bus. and Pul. 129. and arresting a party thereon, after the debt has been

Ibid.

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discharged, and a receipt given, will be sufficient to
maintain an action of this kind, in a case where actual
malice was not proved, and the facts of the case preclud-
ed any inference of malice.
So an action will lie for falsely and maliciously suing chair

Chapman v. Pickersout a commission of bankruptcy against the plaintiff, iils. 145. which was afterwards superseded, and in such action it cannot be objected, at least; after verdict, that it is not averred in the declaration, that the plaintiff had not at any time committed an act of bankruptcy.

II. Of an action on the case, in the nature of a conspiracy. An action on the case, in the nature of a conspiracy, ,

2 Esp. Dig. 278. lies where two or more combine for the purpose of preferring indictments, charging crimes against any one without foundation, or otherwise conspiring to prejudice a man wrongfully, either in person, fame, or property.

And this being, in fact, an action for malicious prose- 190 cution, with this difference, that an action for a malicious prosecution may be brought against one only, but an action on the case in the nature of a conspiracy, must be against more than one, or against one, charging, that he, together with J. S. or others, had conspired to indict the plaintiff, or charge him with a crime; the grounds of the action, therefore, are the same.

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III. The declaration.

The declaration must state all the material circumstances attending the malicious prosecution, and how it was disposed of; because, until that be determined, it cannot be known, whether the prosecution was malicious or not, and this absurdity might follow, that plaintiff might recover in the action, and yet be afterwards convicted on the original prosecution. VOL. III.

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IV. The defence.

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The usual defence to this action is, that the defendant had reasonable or probable grounds of suspicion against the plaintiff. It is not necessary that these grounds should be legal grounds ; for if it can be inferred, from the circumstances of the case, that the defendant was not actuated by any improper motives, but an honest desire to bring a supposed offender to justice, it will be a suffi. cient answer to this action, because such circumstances tend to disprove that which is of the essence of the action, viz. the malice of the defendant in preferring the charge. Formerly it was usual for the defendant to plead a justification of this kind specially; but the modern practice is to give it in evidence under the general issue.

If the plaintiff prove malice, yet if the defendant shew a probable cause, he shall have a verdict, and the judge, not the jury, is to determine whether he had a probable cause ; and, therefore, where the plaintiff, having brought an action against the defendant for a malicious prosecution for perjury, obtained a verdict ; upon a motion for a new trial, the court set it aside, (it appearing upon the report of the judge, that there was a probable cause) not as a verdict against evidence, but as a verdict against law. (1)

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V. The evidence.

The plaintiff must produce an examined copy of the record of the indictment, and where there has been a verdict of not guilty, of the acquittal.

(1) The question of probable cause is a mised proposition of law and fact. Whether the circumstances, alleged to shew it probable or not probable, are true and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law. Per Lord Mansfield, C. J. and Lord Loughborough, C. J. in Sutton v. Johnstone, 1 T. R. 545.

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