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repairing a private way which defendant is bound to keep in repair. And the action lies although the land to which the easement is appurtenant is in the possession of the plaintiff's tenant.86
3501. When a statute gives an express remedy by action on the case, of course that is the proper form of action; sometimes, however, a statute prohibits an injury to an individual, or enacts that he shall recover a penalty or damages for such injury without giving any particular form of remedy. This action may be supported in such cases.87
3502. The principal rules relating to a declaration in an action in form ex delicto have been considered in another place. It is only requisite here to observe that in an action on the case the declaration ought not to state the injury to have been committed vi et armis, nor conclude contra pacem, these being appropriate terms for an action of trespass. The form of the declaration depends much on the particular circumstances on which the action is founded. These must be clearly stated.89
One of two reversioners may sue alone for injury done to the reversion and recover a moiety of the damages, unless the non-joinder of the other is pleaded in abatement.90
3503. The plea is usually the general issue of not guilty.
3504. The evidence is in favor of the plaintiff to support his case, or for the defendant in order to maintain his defence.
3505. The evidence of the plaintiff in cases of this kind must be sufficient to support the several averments in the declaration; but although the plaintiff must thus support his declaration, he is not required to prove any more of it than is necessary to constitute a good cause of action. For example, although the declaration may charge malice and negligence on the defendant in digging the foundation of his house below that of the plaintiff's, whereby the plaintiff suffered damages, yet proof of negligence alone will be sufficient to maintain his action. And in an action against an innkeeper or a carrier for the negligent keeping of goods in his care, whereby they were lost, proof of the loss will be considered as presumptive evidence of negligence on the part of such carrier or innkeeper, or his servants. 93
3506. In cases of criminal conversation with the plaintiff's wife it is not necessary to prove the direct fact of adultery, although it is charged in the declaration. Evidence of circumstances that lead to a fair inference as a necessary conclusion that the crime has taken place is sufficient; but the circumstances which are to lead to this conclusion must be such as would induce the guarded discretion of a just man to the conclusion; for it must not lead a rash and intemperate judgment moving upon appearances that are equally capable of two
* Okeson v. Patterson, 29 Penn. St. 22.
Comyn, Dig. Action upon Statute, A, F; Pleader, 2 S, 1 to 30. 88 The words with force and arms" will be rejected as surplusage where the declaration shows that case is the proper action, and, in other respects, the declaration is in case, though the action may be denominated trespass. Marshall v. White, Harp. So. C. 122.
89 Bridge Co. v. Williams, 9 Dan. Ky. 403; Taylor v. Day, 16 Vt. 566; Gates v. Miles, 3 Conn. 64. When the plaintiff denominates his action case, and the averments in the declaration show a trespass, the declaration is bad on demurrer, and, even after verdict, judgment will be arrested, or if given, a writ of error will lie. Barnes v. Hurd, 11 Mass. 57; Waldron v. Hopper, Coxe, N. J. 339; Case v. Mark, 2 Ohio, 169; Taylor v. Rainbow, 2 Hen. & M. Va. 423 ;'Wickliffe v. Sanders, 6 T. B. Monr. Ky. 299; Vail v. Lewis, 4 Johns. N. Y. 459; Warren v. Fisher, 1 Penn. 240; Hall v. Phillips, 1 Penn. 367; Horner v. Parker, 2 Penn. 648; Agry v. Young, 11 Mass. 229.
80 Putney v. Lapham, 10 Cush. Mass. 232.
interpretations.” Evidence of general cohabitation will render the proof of particular facts unnecessary.
To support an action against the defendant for adultery with the plaintiff's wife the plaintiff must prove the existence of his marriage with the woman, for general reputation is not sufficient, and also proof of acts of adultery or of such circumstances which lead to that conclusion. This being proved, the plaintiff has made out a prima facie case to entitle himself to damages. In order to aggravate the damages he may in this action give evidence showing the state of happiness in which he and his wife lived previously to the act which is the subject of his complaint, and the relation or situation which the defendant bore toward him, and all the circumstances attendant upon the intercourse which existed between them, and, as part of the res gestæ, the conversations and letters of the wife, but these letters must have been written before any attempt at adulterous intercourse with the defendant; and this rule is established to prevent collusion between the husband and wife.97
3507. To maintain an action for a malicious prosecution the plaintiff must establish four points, namely:
That he has been prosecuted by the defendant, either criminally or in a civil suit. It is immaterial that the plaintiff was prosecuted by an insufficient process, or before a court not having jurisdiction of the matter; because a bad indictment may serve all the purposes of malice as well as a good one; and the injury to the party is the same where an irregular process issued as if it had been regular and before a court having jurisdiction. The fact of prosecution must be proved by a duly authenticated copy of the record and proceedings, and, in a criminal case, that the defendant was the prosecutor.98
The plaintiff must show that the prosecution is at an end. This is generally proved by the record; but in some cases it may be proved without producing the record. In the case of a civil suit, its termination may be shown by proof, a rule to discontinue on payment of costs, and that the costs were taxed and paid." In a criminal prosecution, it must appear that the plaintiff was acquitted of the charge, either by a trial or by being discharged by the court without a trial.100
There must be a want of probable cause, for, however malicious and unfounded the prosecution may have been, this action will not lie when there are apparent grounds of suspicion that the party has committed a crime or misde
94 Loveden v. Loveden, 2 Hagg. Cons. 2, 3. 95 Cadogan v. Cadogan, 2 Hagg. Cons. 4, note. 96 Kibby v. Rucker, 1 A. K. Marsh. Ky. 391; Forney v. Hallacher, 8 Serg. & R. Penn. 159.
97 Wilson v. Webster, 7 Carr. & P. 198.
* Where a magistrate issues a warrant of arrest upon insufficient grounds, he is liable to an action for false imprisonment, and the complainant is liable in case if his motives were malicious. Comfort v. Fulton, 39 Barb. N. Y. 56. But the complainant is not liable if he merely states his cause to the magistrate, who thereupon issues process not justified by the facts as stated. Von Latham v. Libby, 38 Barb. N. Y. 339. It should be noticed that in this country the complainant stands in a different relation from the prosecutor in England.
** Bristow v. Haywood, 4 Campb. 213; French v. Kirk, 1 Esp. 80; Wood v. Laycock, 3 Metc. Ky. 192.
100 Smith v. Shackelford, 1 Nott & M'C. So. C. 36; Goddard v. Smith, 1 Salk. 21; Steel v. Williams, 18 Ind. 161. The action may lie if no indictment is found by the grand jury, or if it is coram non judice, or be quashed. Stancliff v. Palmeter, 18 Ind. 321; Schoonover v. Myers, 28 Ill. 308.
If the plaintiff has been convicted, but the judgment is arrested and the plaintiff discharged, the action does not lie. Nothing short of an acquittal will answer where the prosecution has progressed to a trial by a jury. Kirkpatrick v. Kirkpatrick, 39 Penn. St. 288.
meanor, and that the prosecution was undertaken from public motives ; 101 or in a civil suit, if there is reason to infer that the party was actuated by an honest and reasonable conviction of the justice of his suit, although upon trial the defendant may in either case be acquitted. It is not necessary that the whole proceedings should be groundless ; if part be so, the party will be liable; as, where a plaintiff had a good cause of action for a small sum, and he demands bail for a sum four times as large, there the proceedings are malicious and without probable cause. 102 Though the averment of want
of probable cause is negative in its form and character, yet, in general, it must be proved by some affirmative evidence, unless the defendant by his pleadings dispenses with this proof. The acquittal or discharge by the magistrate alone is not sufficient to show want of probable cause. 103,
The plaintiff must show he has sustained damages, and he may prove what losses he has sustained and to what indemnity he is entitled in consequence of the injurious act of the defendant.104
3508. When there are several plaintiffs they must prove a joint cause of action, such as a slander of both in their joint trade or employment, or an injury to their joint property, and the like, or they will be non-suited.105
As in actions founded in tort a recovery can be had against either or a part only of the defendants, because all wrongs are several, it is not necessary to prove them all guilty; the plaintiff will recover against those whom he proves to have been guilty. 106
3509. Many matters may be given in evidence by the defendant under the plea of the general issue which will defeat the right of the plaintiff to recover. Under this plea the defendant may prove any facts which show that in equity and good conscience the plaintiff ought not to recover, and that he never had a good cause of action ; 107 or he may show matters ex post facto which are his discharge; as, a release, a former recovery, or satisfaction.108 To this general rule of what may be given in evidence there are the following exceptions :
The statute of limitations must be specially pleaded ; this is required in justice to the plaintiff to enable him to rebut it if he can.
A justification in slander, by alleging the truth of the words used, must be specially pleaded for the same reason, for unless this is done all the plaintiff is required to do is to prove the uttering of the words in the presence of persons who understood them.
The retaking a prisoner on fresh pursuit must also be specially pleaded.109
3510. The plaintiff must prove that the relation of master and servant, or principal and agent, existed when the act complained of was committed by the agent or servant of the defendant ; this is frequently very difficult to prove, particularly when sub-contractors have been employed.110
3511. The defendant, in an action for criminal conversation with the plain
101 Ulmer v. Leland, 1 Me. 135.
102 Reed v. Taylor, 4 Taunt. 616; Prince v. Thompson, 6 Pick. Mass. 193; Stone v. Crocker, 24 Pick. Mass. 81.
103 Thorp v. Balliett, 25 Ill. 339.
104 Hadden v. Mills, 4 Carr. & P. 486; Thompson v. Mussey, 3 Me. 305; Sandback v. Thomas, 1 Stark. 306. In a suit for malicious arrest on a void writ, the plaintiff cannot claim damages from the interruption to his business caused by his remaining in the limits of the county under bail, as the bail bond is void. Fuller v. Bowker, 11 Mich. 204.
105 Coryton v. Lithebye, 2 Saund. 116, a, note.
1 Story, Ag. $ 454, a; Milligan v. Wedge, 12 Ad. & E. 737; Duncan v. Findlater, 6 Clark & F. Hou. L. 894.
tiff's wife, may show in bar of the action that the husband and wife were divorced a vinculo, or that the plaintiff connived at the criminal intercourse, or suffered her to live openly and publicly as a prostitute, il or that he had volun
111 tarily separated from his wife. He may show in mitigation of damages the previous bad character and conduct of the wife for chastity; and these may be general or particular instances of unchastity. He may also prove that she made the first advances, 113 the husband's unlawful connections with other women,"4 his gross negligence with respect to the defendant, and any other acts which manifest a culpable indifference on the part of the husband.
By bringing this action the husband puts the general character of the wife in issue, but he cannot support it unless it is attacked; she is, in this respect, like any
other whose character is in issue. 3512. When charged with a malicious prosecution, the defendant may
disprove the charge of malice, or show the existence of probable cause for the prosecution.
3513. The judgment for the plaintiff is that he recover a sum of money, ascertained by a jury, for his damages sustained by the commission of the grievances complained of, and full costs of suit; but when the judgment was entered for dollars debt instead of damages, it was held to be valid.115
3514. The judgment for the defendant is that he recover his costs from the plaintiff.
3515. The origin and nature of this action.
3517. The property for which trover lies.
3520. General or absolute property.
3523. The right to immediate and exclusive possession.
3526. The wrongful taking.
3529. The wrongful assumption of property. 3530-3539. The wrongful detention after demand.
3531. What is a wrongful detention.
3533. The form of the demand.
3539. The effects of a refusal.
3541. The requisites of a declaration.
3546. The plea in trover.
3548. Proof of the plaintiff's property.
3515. The action of trover and conversion owes its origin to the statute of Westminster the second; it was formerly an action of trespass on the case for the recovery of damages against a person who had found goods and refused to deliver them on demand to the owner and converted them to his own use. It still belongs to the genus of actions on the case, but it has acquired a new and separate name, being the species known as trover and conversion.
Trover is a concurrent remedy with trespass in general when there has been a wrongful taking, but the converse does not hold, for trover is frequently a proper remedy when trespass is not; as, for example, when goods are lent or delivered to another to keep and he refuses to return them on demand, trespass cannot be maintained because there was no unlawful taking, but trover may be.
* Put v. Rawsterne, T. Raym. 472; Lechmere v. Toplady, 2 Ventr. 170; Wilbraham v. Snow, 2 Saund. 47, k, 1.