nesses; or was otherwise active in forwarding the prosecution. 2 Stark. Evid. 908. So the information taken by the magistrate, or the warrant issued by him, may be sufficient for this purpose. 2 Phill. Ev. 161. The indorsement of the defendant's name on the bill is evidence that he was sworn as a witness, though not of his being the prosecutor. B. N. P. 14. One of the grand jury before whom the bill was preferred may be called to prove that the defendant was the prosecutor. Sykes v. Dunbar, Selw. N. P. 1004.

Evidence of malice.] It is essential that the plaintiff should give some evidence of the defendant's malice. Proof of an acquittal for want of prosecution is not even primâ facie evidence of malice to support the action. Purcell v. Macnamara, 9 East, 361. But if the plaintiff prove want of probable cause, malice may be inferred from thence. Ibid. Burley v. Bethune, 5 Taunt. 583. Turner v. Turner, Gow, 20. Proof that the defendant published an advertisement of the finding of the indictment with other scandalous matter, is evidence of malice. Chambers v. Robinson, 1 St. 691. Where a forged note was taken in the ordinary course of business, and a bank inspector in the absence of any circumstances of suspicion charged the taker as having the note in his possession, knowing it to be stolen, Lord Ellenborough held that this was such a crassa ignorantia that it amounted to malice. Brooks v. Warwick, 2 Stark. 389. In an action by A. for the malicious prosecution by C. of an indictment against A. and B., evidence of the misconduct of C. towards B. after his apprehension, tending to show the bad motives of C., is admissible in proof of malice. Caddy v. Barlow, 1 M. and R. 275. To support the averment of malice it must be shown that the charge is wilfully false. Per Abbott, C. J., Cohen v. Morgan, 6 D. and R. 9.*

Evidence of want of probable cause.] The plaintiff must give some evidence of want of probable cause. Incledon v. Berry, 1 Campb. 203 (n). But proof of express malice is not evidence of it. Johnson v. Sutton, 1 T. R. 545, Turner v. Turner, Gow, 20. Abandoning the prosecution is not sufficient evidence of want of probable cause. Incledon v. Berry, 1 Campb. 203 (n). Nor neglect ing to prefer an indictment after a charge laid. Wallis v. Alpine, Id. 204 (n). Willans v. Taylor, 6 Bingh. 188.' So proof that the bill was thrown out by the grand jury is not evidence of the want of probable cause. Byne v Moore, 5 Taunt. 187. But in Nicholson v. Coghill, 4 B. and C. 23," it is said by Holroyd, J., that in actions for malicious prosecutions it has been held that evidence of the bill having been thrown out by the grand jury is sufficient to warrant an inference of the absence of probable cause. Where the plaintiff refused to give up a forged note which he had taken in the

1 Eng. Com. Law Reps. 196. 5 Id. 444. 13 Id. 396. 16 Id. 250.

course of business, to the defendant, a bank inspector, and the defendant, in the absence of all circumstances of suspicion, charged the plaintiff before a magistrate, with feloniously having the note in his possession, it was held to be evidence of want of probable cause to go to the jury. Brooks v. Warwick, 2 Stark. 289. If the defendant laid all the facts of the case fairly before counsel, and acted bona fide upon the opinion given by that counsel (however erroneous it may be), it will be evidence to prove probable cause. Per Bayley, J., Ravenga v. Macintosh, 2 B. and C. 697. And see Snow v. Allen, 1 Stark. 502. But not unless a full statement of the case has been laid before counsel. Hewlett v. Crutchley, 5 Taunt. 281."

It has been said that where the facts lie in the knowledge of the defendant himself, he must show a probable cause, though the indictment be found by the grand jury, or the plaintiff shall recover without proving express malice. Parrott v. Fishwick, B. N. P. 14. And see 4 B. and C. 24, 6 Bingh. 187, 189. But this position is not supported by another report of the same case, 9 East, 362 (n), from which it appears that the plaintiff having been acquitted on the indictment, Lord Mansfield said, "that it was not necessary to prove express malice, for if it appeared there was no probable cause, that was sufficient to prove an implied malice, which was all that was necessary to support this action. For in this case all the facts lay in the defendant's own knowledge, and if there were the least foundation for the prosecution, it was in his power, and incumbent upon him to prove it." It seems from this report that some evidence of want of probable cause had been given, from which malice was inferred, and that the question was whether it was incumbent upon the plaintiff to go further. So in Sykes v. Dunbar, cited 9 East, 363, where the defendant was the only witness upon the indictment, Lord Kenyon ruled that the proof of malice lay upon the plaintiff. And in a late case it was said by Tindal, C. J., that the plaintiff must take the first step; because it is not to be presumed that any one has acted illegally. There must, therefore, he some evidence of want of probable cause before the defendant can be called upon to justify his conduct. Willans v. Taylor, 6 Bingh. 187.* In that case the defendant presented two bills for perjury against the plaintiff, but did not himself appear before the grand jury, and the bills were ignored. He then presented a third bill, and on his own testimony it was found. This prosecntion he kept suspended for three years, till the plaintiff taking the record down to trial, and the defendant declining to appear as a witness, although in court, and called on, the plaintiff was acquitted. It was held that this was sufficient primâ facie evidence of want of probable cause. See further as to proof of want of probable cause. Cotton v. James, 1 Barn. and Adol. 128.

3 Eng. Com. Law Reps. 396. 9 Id. 225. 2 Id. 485. 1 Id. 107. • 10 Id. 269. 19 Id. 47.

The observations of the judge on the trial of the indictment tending to cast censure on the mode in which the prosecution had been conducted, are admissible for the plaintiff. Warne v. Terry, coram Littledale, J., M. S. Winton Sum. Ass. 1826.

Damages.] The jury will give damages for the loss of reputation, the imprisonment, if any have taken place, and the expenses incurred by the plaintiff in making his defence. B. N. P. 13.

Defence.

The defendant may give in evidence facts to disprove the malice, or to show that he had probable cause for the prosecution. Thus he may show that the jury deliberated on the trial of the indictment. Smith v. Macdonald, 3 Esp. 7. Lord Kenyon ruled that the defendant might give evidence of the plaintiff's bad character; Roderguez v. Tadmire, 2 Esp. 721; but in a late case Wood, B., refused such evidence, on the ground that it afforded no proof of probable cause to justify the defendant. Newsam v. Carr, 2 Stark.

71."

If no one was present at the time of the supposed felony committed, but the defendant or his wife, his or her evidence on the trial of the indictment is, it is said, admissible for the defence to prove the felony committed. B. N. P. 14, 15.

CASE FOR MALICIOUS ARREST.

In an action on the case for a malicious arrest, the plaintiff must prove the arrest, the determination of the suit, the defendant's malice and want of probable cause and the damage.

The arrest.] If the form of the declaration require it, the plaintiff should be prepared to prove the affidavit to hold to bail, by the production of the original, or of an examined copy, Crook v. Dowling, 3 Dougl. 75, B. N. P. 14, S. C. Casburn v. Reed, 2 B. Moore, 60, see R. v. James, 1 Show. 397, Rees v. Bowen, 1 MCl. and Y. 392; but unless there be an allegation in the declaration that the writ was indorsed for bail "by virtue of an affidavit, filed, &c." it seems to be unnecessary to prove the affidavit, Arundell v. White, 14 East, 224, unless for the purpose of connecting the defendant with the arrest. The writ indorsed was held by Mr. J. Buller to be sufficient evidence of the holding to bail. Rogers v. Ilscombe, 2 Esp. Dig. N. P. 38. The plaintiff must also prove the writ and return, ante, p. 56, and in one case, though the return of cepi corpus appeared on the writ, Lord Kenyon ruled, that as against the defendant there was no evidence of the arrest having been under the writ, and the plaintiff not being able to prove the warrant, was non

suited. Lloyd v. Harris, Peake, 174. But it seems that the sheriff's return is prima facie evidence of the fact therein stated. Gyfford v. Woodgate, 11 East, 297; and.see 2 Phill. Evid. 166. In order to prove the arrest, the plaintiff may call the sheriff's officer. If a bailiff, who has a process against one, says to him when he is on horseback, or in a coach, "You are my prisoner, I have a writ against you," upon which he submits, turns back or goes with him, though the bailiff never touch him, yet this is an arrest, because he submitted to the process; but if instead of going with the bailiff he had gone or fled from him, it could be no arrest, unless the bailiff had laid hold of him. Per Cur. Herner v. Battyn, B. N. P. 61. Where a sheriff's officer having a warrent to arrest A. sent a message to him to fix a time to call and give bail, and A. accordingly fixed a time, attended and gave bail, in an action for a malicious arrest, this was held to be no arrest. Bury v. Adamson, 6 B. and C. 528. Where the officer showed the party the writ, saying that as he knew him, he would take his word, but that he must give bail, and after receiving a fee from him, left him and went to his attorney to tell him what had occurred, Lord Tenterden said, that his strong opinion was, that this was no arrest. Goye v. Radford, 3 C. and P. 464, and see more as to arrest, post, "Actions against Constables."

Determination of the suit.] It is necessary to show how the proceeding complained of, whether civil or criminal, terminated, and the proof must correspond with the allegation. Therefore where it was averred that "the plaintiffs in that action did not prosecute their suit, but therein made default, whereupon it was considered that the said plaintiffs should take nothing by their bill, and the pledges to prosecute be in mercy, &c." It was ruled that this being an allegation of a nonsuit was not proved by a rule to discontinue, and that the variance could not be amended under stat. 9 Geo. IV. c. 15, Webb v. Hill, 1 M. and M. 253. Proof of a rule to discontinue, and that the costs have been accordingly taxed and paid, is sufficient evidence of the determination of the suit. Bristow v. Haywood, 4 Campb. 214, 1 Stark. 48, S. C. Gadd v. Bennett, 5 Price, 540, Brandt v. Peacock, 1 B. and C. 649 ;* so a rule to stay proceedings, and deliver up to the then defendant the bill of exchange upon which the action was brought, Brook v. Carpenter, 3 Bingh. 297; but where the evidence of the determination of the suit was a judge's order to stay proceedings, and payment of costs accordingly, Lord Kenyon was inclined to think that it was insufficient: a juror was afterwards withdrawn. Kirk v. French, 1 Esp. 80, and see 4 Campb. 214, sed quare, and see Austin v. Debnam, 3 B. and C. 140. In an actin for a false arrest upon a plaint in the

13 Eng. Com. Law Reps. 245. 14 Id. 391. 3 Id. 389. 8 Id. 172. 11 Id. 108. b 10 Id. 37.

Sheriff's court of 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. Arundell v. White, 14 East, 216. The termination of the suit must be such as to show primâ facie evidence that the action was without foundation; therefore, where it appeared that a stet processus had been entered by consent, the plaintiff was non-suited. Wilkinson v. Howel, 1 M. and M. MSS.

Evidence of malice, and want of probable cause.] It lies upon the plaintiff in this action, as in the action of case for a malicious prosecution, ante, p. 240, to prove both malice, and the want of probable cause. Proof that the suit was discontinued, was held by Lord Ellenborough not to be evidence of want of probable cause; Bristow v. Heywood, 1 Stark. 50; but in a later case, where the defendant had arrested the plaintiff on an affidavit of debt for money paid to his use, but did not declare, until ruled to do so, and soon afterwards discontinued the action, and paid the costs, this was held to be evidence to go to the jury of malice, and the want of probable cause. Nicholson v. Coghill, 4 B. and C. 21.4 Webb v. Hill, 1 M. and M. 254. That the defendant suffered himself to be non-prossed in the former suit has been held not to be evidence to support this action. Sinclair v. Eldred, 4 Taunt. 7. However, in a previous case of Hamilton v. Reddell, coram, Pratt, C. J., 4 July 1765, Bearcroft's MSS. 22, not cited in Sinclair v. Eldred, it was ruled, that the defendant's suffering the former action to be non-prossed was sufficient primâ facie evidence of malice. Per Pratt, C. J. "Here the defendant's never proceeding, and suffering a non-pros, is, in my opinion, primâ facie evidence of malice. I hold most clearly that the affidavit, arrest, bail, and non-pros, make up sufficient primâ facie evidence to call for a defence." Where there are mutual dealings between the plaintiff and defendant, and items known to be due on each side of the account, an arrest for the amount of one side of the account, without deducting what is due on the other, is malicious and without probable cause. Austin v. Debnam, 3 B. and C. 129, overruling Brown v. Pigeon, 2 Campb. 594. Taking a less sum out of court, and not proceeding in the suit, is not enough to maintain this action, it appearing that the defendant had claimed a larger sum; Jackson v. Burleigh, 3 Esp. 34; and suing out a. writ, and arresting a debtor after payment of the debt by him to the creditor's agent, (the affidavit to hold to bail being made before such payment) does not afford evidence of malice. Gibson v. Chaters, 2 B. and P. 129. A. by mistake sued out a bailable writ against B., and gave it to an officer to be executed;