Exchequer, against his commander, for a malicious prosecution. A verdict having been found for the plaintiff, a motion was made in arrest of judgment, which, after a very elaborate discussion was refused; but the defendant afterwards brought a writ of error in the Exchequer Chamber, where the judgment of the Court, of Exchequer was reversed. This reversal was afterwards affirmed in the House of Lords.

An action will not lie to recover damages sustained by the plaintiff in defending a vexatious ejectment brought against him by the defendant, in which the nominal plaintiff has been non-prossed (5).

II. Of the Declaration-Defence-Evidence.

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 were malicious or not, and this absurdity might follow, that plaintiff might recover in the action, and yet be afterwards convicted on the original prosecution (6).

66

Care must be taken in framing the declaration, so as to avoid any objection being raised on the ground of a variance. For where in the declaration it was stated, that the trial, and the acquittal, both took place in the court of our lord the king, before the king himself"; and upon the production of the record in evidence, it appeared, that the trial was before the chief justice, at nisi prius, and that the acquittal was by the judgment of the court in bank,

e Sutton v. Johnstone, 1 T. R. 501. fib. 550.

g 1 Bro. P. C. 76. Tomlins's Ed.

h Parton v. Honnor, Bos.& Pul. 205.

'i Arundell v. Tregono, Yelv. 116.
k Lewis v. Farrell, Str. 114. Parker v.
Langley, Gilb. R. 163.

(5) Under what circumstances an action will lie for a malicious and vexatious suit, see notes on Co. Litt. 161. a. (4) IV. and Martin v. Lincoln, M. 27 Car. 2. C. B. Bull, N. P. 13.

Skinner v.

(6) The want of this averment is cured by verdict. Gunton, 1 Saund. 228. because it will be presumed, that it has been proved at the trial. Per Denison J. in Panton v. Marshall, B. R. M. 28 G. 2. MSS.

the variance was holden to be fatal. But where the allegation was, "that the plaintiff, by a jury of the county of was duly and in a lawful manner acquitted," and by the record it appeared, "that the jury found the plaintiff not guilty, and upon that verdict the judgment of the court was, that the plaintiff should go thereof acquitted;" it was holden sufficient, by construing the words reddendo singula singulis, that the plaintiff was duly acquitted by the jury; that is, found not guilty of the facts, and in a lawful manner acquitted; that is, by the judgment of acquittal pronounced by the court".

If it appear on the face of the declaration, that the court in which the indictment was tried had authority to hear and determine upon it, it is sufficient; and there is not any necessity for copying exactly the style of the record; but if the declaration describe a court of incompetent authority, it is bad. This distinction may be illustrated by the following case the declaration stated plaintiff to have been indicted at the general quarter sessions", and by the record it appeared, that he had been indicted at the general sessions; the word quarter was rejected as surplusage, because plaintiff had been indicted for an offence cognizable at the general sessions; but if the offence had been cognizable only at the quarter sessions, the declaration would have been bad.

So where it was stated in the declaration that the plaintiff had been indicted as a common barretor before certain justices, ad felonias, &c. nec non ad pacem conservandam assignat: and defendant having demanded oyer of the indictment, it was certified to have been taken before certain justices ad pacem conservandam assignat; it was holden that the action lay, on the ground that the justices mentioned in the indictment, were not justices of another nature or power than those which were mentioned in the declaration; both were justices of the peace, and such as had power to receive such manner of indictment. It was admitted, however, if the declaration had mentioned justices of assize, and the certificate had been of a thing taken before justices of gaol delivery, the variance would have been fatal, for they are distinct in power.

1 Woodford v. Ashley, 11 East, 508. m Hunter v. French, Willes, 517.

n Busby v. Watson, 2 Bl. 1050.
o Barnes v. Constantine, Yelv. 46. ·

Defence.

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 sufficient answer to this ac-. tion; 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.

This is an action on the case, and consequently if it be not brought within six years next after the cause of action, the statute of limitations' may be pleaded in bar.

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.

Among the orders and directions to be observed by justices of the peace at the sessions in the Old Bailey, 26 Ch. 2. prefixed to Kelyng's Report of Crown Cases, ed. 1708, is the following order, viz.

"That no copies of any indictment for felony be given without special order, upon motion made in open court at the general gaol delivery; for that the late frequency of actions against prosecutors, which cannot be without copies

p Coxe v. Wirrall, Cro. Jac. 193.

q Golding v. Crowle, M. 25 G. 2. B. R. Bull. N. P. 14. Say. R. 1. S. C.

VOL. II.

r 21. Jac. 1. c. 16.

of the indictments, deterreth people from prosecuting for the king upon just occasions (7)."

In Evans v. Philips, Monmouth Sum. Ass. 1763. MSS. Adams, Baron (who had been recorder of London for several years), said, that in all cases of indictments for misdemeanor, the party is entitled to a copy of the record; but in cases ་ of indictment for felony, he should look upon the copy as a surreptitious record, and not pay any regard to it, unless the judge had been applied to, and had ordered a copy.

This case, however, was overruled in Legatt v. Tollervey, 14 East, 302, where it was holden, that the record of the indictment for felony or a true copy must be received in evidence, although it does not appear, that the officer producing the record, or giving the copy, had any authority from the court, or any fiat from the attorney general for that purpose.

The distinction between felony and misdemeanor was taken by Lord Mansfield C. J. in Morrison v. Kelly, B. R. Middx. Sittings after Trin. T. 2 Geo. 3. 1 Bl. R. 385. That was an action for a malicious prosecution, in indicting plaintiff for keeping a disorderly house. To prove the fact, the clerk of the peace for the Westminster sessions attended with the original record of the acquittal. Norton objected, that there ought to be a copy of the record granted by the court before which the acquittal is had, in order to ground an action for a malicious prosecution. But, per Lord Mansfield, although this is necessary where the party is indicted for felony, yet the practice is otherwise in cases of misde

meanor.

There is a short note in Strange's Reports, from which it appears to have been the opinion of Lee C. J. that if the copy of the indictment has been granted by order of court, it is sufficient, although it was not granted to the plaintiff in the action for malicious prosecution, or at his instance.

The plaintiff and another were indicted at the Old Bailey sessions for forgery, and acquitted, and a copy of the indictment granted to the other only. In this action, which

s Jordan v. Lewis, Str. 1122. 14 East, 805. n. S. C. from Mr. Ford's MS. See also Str. 856.

(7) "If A. be indicted for felony and acquitted, and he is desirous of bringing an action, the judge will not permit him to have a copy of the record, if there was probable cause for the indictment, and he cannot have a copy without leave." Per Holt C. J. Ld. Raym. 253.

was for a malicious prosecution, the plaintiff offered the copy in evidence, and the order at the Old Bailey was read by way of objection. But the chief justice (Lee) said, he could not refuse to let the plaintiff read it (the copy of the indictment); for an order was not necessary to make it evidence, nor is it ever produced in order to introduce it. So the copy of the indictment was read, and a verdict obtained for the plaintiff, which the court refused to set aside.

This action cannot be maintained without proof of malice, either express or implied. Malice may be implied from the want of probable cause, but that must be shewn by the plaintiff. Proving an acquittal for want of prosecution, is not prima facie evidence of malice to support this

action.

In an action for a malicious prosecution against the defendant for having indicted the plaintiff of perjury, the proof on the part of the plaintiff (in addition to the formal proof of the record of acquittal) was, that after the indictment found was ready for trial, the prosecutor (the present defendant) was called, and did not appear; on which the verdict of acquittal passed. Ld. Ellenborough C. J. thought that this was not sufficient to support the action, without evidence of express malice, or at least of circumstances evincing such entire want of probable cause, whence malice was to be presumed, and therefore he nonsuited the plaintiff. The court of B. R. afterwards concurred in opinion with the C. J. N. The indictment assigned the perjury on an affidavit made by the plaintiff swearing to words uttered by the defendant.

It must appear that the plaintiff was acquitted upon the prosecution', before the action was brought; but the day of the acquittal is not material. Hence, where it was stated in the declaration, under a scilicet, that the acquittal took place on the morrow of the Holy Trinity, (which allegation was not accompanied with a prout patet per recordum) and by the record when produced in evidence, it appeared that it took place on Tuesday next after Easter Term; the latter day having been before action brought, the variance was holden to be immaterial, on the ground that the day

t Legatt v. Tollervey, 14 East, 302. - S. P.

Purcell v. Macnamara, 9 East, 361.

x Purcell v. Macnamara, 9 East, 157. in which Pope v. Foster, 4 T. R. 590. was overruled. See also Woodford v. Ashley, 2 Camp. N. P. C. 194.