does not fhew how the fuits or profecution were difpofed of, and that they are ended, it is ill. a By the common law of England, in all cafes of an action for malicioully indicting the plaintiff of a felony, of which he was acquitted, there must be a copy of the record and acquittal from the court where the trial was had, and which must be granted by that court, and produced in evidence: and the granting of fuch copy is matter of difcretion with the court; but here our courts can exercise no fuch difcretion; and every perfon has a common right to fach copies of record, attested by the clerk of the court, as are neceffary to prove his caufe, and which are fufficient in all cafes, tho not granted by the court, and must be produced by the plaintiff in the action, for the purpose of proving every thing refpecting the profecution appearing on record. The plaintiff may produce witneffes to fhew his innocence, and that there was no probable caufe, and every circumftance that fhews malice in the defendant; as where the plaintiff was allowed to give in evidence advertisements put into the papers by the defendant, mentioning that the indictment had been found againft him, and other fcandalous matters, not to encrease the damages, but to prove the malice. In cafe of confpiracy, the actual meeting of the defendants, and confpiring together, need not be exprefsly proved, but may be collected from collateral circumftances. 4. As to the defence that may be made by the defendant, it may be remarked, that as to fupport this action there must be both malice and a want of probable caufe; tho exprefs malice be proved, yet if the defendant can prove a probable caufe, he fhall have a verdict. The defendant therefore may produce witneffes to prove the guilt, or the probability of the guilt of the plaintiff, the circumftance that appeared against him, and induced him to believe him to be guilty: fo he may produce evidence by any collateral circumstances, to fatisfy a jury, that he had no malice, tho there was no probable ground of profecution. Tho an action will lie for a malicious profecution, yet it is not 1 Black. Rep. 385. b 2 Black. Rep. 392 to to be favoured; therefore if the indictment has been found by the grand-jury, or there is a binding over by the court, the defendant fhall not be obliged to prove a probable cause. In England we find no actions for malicious profecutions brought against grand-jurors; for there fingle grand-jurors prefent no informations; and the grand-jury when fummoned to attend on the proper courts, find fuch indictments as are laid before them for all crimes, and prefent them to the court; but here, as in all cafes of crimes not capital, fingle grand-jurors may make presentment to fingle minifters of juftice, at any time, and to courts when they are fitting, we find that grand-jurors have been the objects of this action. The fame general rule applies to them as to a perfon who procures one to be profecuted maliciously, and without probable caufe. It feems to be reasonable that where an informing officer will deviate from his duty, and prostitute the authority of his office to finifter purposes, and to the gratification of perfonal refenthient, that he fhould be feverely punished; for no man ought to be protected by virtue of his office, only while he acts conformable to the duty of it. Yet we ought to be cautious in fuftaining profecutions against in forming officers, and they never should be fubjected to the payment of damages, unless upon the clearest proof of malice, and of there being no probable caufe; for if grand-jurors may be convicted upon flight proof, and mere prefumptions, it will deter mankind from exercifing an office of great confequence to the public. Before I close the fubject refpecting actions of trefpafs on the cafe for injuries affecting the right of perfonal fecurity, I must mention a few inftances that have not yet affumed a specific name of action. If a perfon keeps a dog who is ufed to bite, this action will lie against the owner at the fuit of any perfon whom the dog has bie ten; but the owner must have notice that the dog was used to bite : for tho if a man keeps animals of a wild nature, as lions, or bears, at large, without proper care, he is anfwerable for any mischief they do, tho without notice; yet dogs being of a tameable nature, the owner must have notice of their vicioufhefs, or he will not be liable, and it is therefore matter of fubftance to fet out the notice in the declaration. Therefore where a dog had once bitten a man, and · 1 Ld. Raym. 604. and the owner ftill let him go at large, tho he had notice of the dog's having bitten the perfon, this action was adjudged to lie against the owner of the dog, tho it appeared that the perfon who had received the injury, had trod on the dog's toes: for the owner hould have hanged him on the firft notice, and the people are not. to be endangered. If a inan rides an unruly horfe into a place much frequented in order to break him, and rides over me, action will lie, tho the perfon did not intend the injury, for it was his fault to ride the horfe in fuch a place. If a man lays logs or sticks or any thing elfe in the highway, tho I might have rode by with eafe, yet if I am hurt thereby action will lie. So for any nuifance in the highway by obstruction, either by laying logs, making fences, or walls, ør digging holes, if I either accidentally or unavoidably fuftain my personal injury, action will lie for the recovery of damages. CHAPTER FOURTH. OF ACTIONS FOR INJURIES THAT AFFECT THE RIGHT OF PERSONAL LIBERTY: THE a HIE only violation of this right is by falfe imprisonment, which confits in the detention of a perfon without any legal authority. Every detention of the perfon, as by confinement either in a prifon, a private houfe, in the flocks, or by forcibly detaining one in the street, is an imprisonment, for which injuries an action of falfe imprisonment can be maintained. It may be öbTerved that no action of falfe imprisonment lies against a judge of a court of record, for any act done by him in the execution of his office, nor for any mistake of judgment, neither are his acts, of decifions traverfeable. When a perfon procures an executor.or adminiftrator, to be arrested for a debt of the teftator or inteftate, action of falfe im- prisonment lies against him. So it does against the officer for arresting a person not named in the process, tho he should tell him that he was of the name of the perfon mentioned in the process, for I a Moor, 4571.. for the officer is bound at his peril to take the right perfon. So it lies if he arrefts a perfon on Sunday. If the process be erroneous, no action lies against any perfort, but if the process be void, or irregular, on which the arreft takes place, the plaintiff in the action is liable, and not the officer. So if an arrest be made upon a process iffùing from an inferior court not having jurifdiction, or exceeding or not purfuing their jurifdiction, action lies against the party. So tho the original arreft be warrantable, yet for any fubfequent.oppreffion, or cruelty, this action lies. So where falfe imprisonment has been done by the influence, or procurement of another, this action lies against him. All general warrants not naming the particular perfon to be arrested are void, as in the cafe of a warrant to apprehend the authors and publishers of a libel, without naming any perfon. So warrants to search for ftolen goods without naming places, and perfons, but to fearch generally, and apprehend the perfons with whom the goods are found, are void. An officer has no right to levy an attachment, or an execution upon the body of a debtor, when he can find perfonal estate fufficient to fecure the debt, or that in the cafe of an execution will probably fell at the post for fufficient to discharge the debt, and his fees, or when the debtor tenders the fame; but if the officer has good reafon to doubt whether the eftate belongs to the debtor, and if it be not apparently fufficient to produce the amount of the debt at public auction, tho it may be of the value of the debt, he is not bound to accept it, for he ought not to be obliged to run any hazard. In all cafes of an unlawful detention, and confinement of a perfon without any pretence of a warrant this action lies. When the arrest or detention is legal, the defendant when fued may juf tify on that ground. Arrefts are legal under the procefs of a court having cognizance of the cause, which process regularly iffùed. ƒ An arrest is legal made by an officer having power to arreft, or under fuch officer's, or magiftrate's warrant under hand, and expreffing the cause of com initment. But then it must appear that the warrant was legal, and 1 Efpin. 409. 3 Wilfon 341. 2 Black. Rep. 845. I N.P. 83. Term Rep. 535. d Black Rep. 10951 Idem Inft. 46. Strange 509. 6 Bul. 3 Black Comi Kazı and iffued in a cafe of which the magiftrate had cognizance, for if not, the warrant will not justify the officer acting under it. • Another caufe of arreft is fuch as is warranted by the neceffity of the thing, as arrefting a felon by a private person. When a perfon juftifies under the procefs of a court of limited jurifdiction,. the plea fhould fhew that the caufe was properly fubject to fuch jurifdiction. Where the defendant justifies in like manner under procefs of an inferior court, and a fpecial authority to imprifon," the plea fhould fhew that the authority was ftrictly pursued : Where a perfon justifies under a process which is returnable, the plea fhould fhew that it is returned, or it will be bad. CHAPTER FIFTH. OF ACTIONS FOR INJURIES THAT AFFECT THE RELA. TIVE RIGHTS OF INDIVIDUALS. THE relative rights of mankind are those which fubfift between Hufband and Wife, Parent and Child, Guardian and Ward, Maf ter and Servant. I. I fhall confider the actions for injuries that affect the right fubfifting between Husband and Wife. These are three, abduction or taking her away. Beating or otherwife abufing her. Adultery, or criminal converfation, 1. The abduction or taking away one's wife may be either by fraud and perfuafion, or by open violence; but in both cafes the Jaw fuppofes force, and constraint, for the wife has no power to confent, and an action of trefpafs with force and arms will lie for the recovery of damages. If any perfon entices away the wife of another to live separate from him without fufficient caufe, the hufband may have this action for the injury. As where a woman had unlawfully and without the confent of her husband lived feparate from him, and during that time a large estate both real, and perfonal was devised to her fole and separate ufe, and thereupon fhe was defirous of returning, and living with him; but the defendant enticed and perfuaded @ 3. Black. Com. 127 3 Black. Com. 139. her Efpin. Dig. 421 Idem. dr Wilfm 17. 139. 2 Eípin. Dig. 434. 8 Bul. N. P. 78, |