bable cause for the prosecution; and to do this, it is said, that if no other person were by when the felony was committed, the evidence which the plaintiff gave on the indictment may be read as evidence for him in the action.' Ch.VI. f.1. Prosecu- Cobb v. Car, B.N.P. 14. Johnson v. 6Mod.216. Arrest. Croke v. Dowling, Bul. N. P. 14. webb v. See also To support the action for a Malicious Arrest also it must be shewn by the plaintiff that it Browning,. was without probable cause; and the plaintiff Malicious should prove the affidavit of the defendant, either by production of the original, or proof of an office copy. The former seems to be the best and safest evidence. He must also prove an examined copy of the writ and return, and of the entry on record, which shews that the original action is ended; and produce and prove the sheriff's warrant, under which the arrest was made. In this case also he must prove that the arrest was without reasonable or probable cause, for the mere circumstance of its ultimately appearing that nothing was due on a disputed account is not sufficient; and where the original cause was referred to arbitration, and the arbitrator determined on the examination of the parties and inspection of their Haber. books, Lord Kenyon held that the action was not maintainable.* As malice, either express or implied, is necessary to support an action for slander, or an unfounded prosecution, so a fraudulent intention must be proved to support an action for a Deceit properly so called. Those actions which are founded on a false representation or concealment Herne, P. 292. Cas. 174. shon v. Troby, 3 Esp. 38. Deceit. Deceit. Ante, 228. Pasley v. Freeman, 3 T. Rep. 51. Part II. concealment of the defects of any commodity, sold by the defendant to the plaintiff, have been before spoken of. They are generally considered as breaches of contract, and where the assertion is unqualified, the action is maintainable, though the defendant himself were mistaken. But where a man, on being applied to for information as to the circumstances of another, and the safety of trusting him, says, that he is a man of credit, and one who may safely be trusted; and it afterwards turns out, that the person of whom he so spoke was at that time a man of no property; no action is maintainable on this false assertion, unless it be proved that the defendant knew at the time he made it, that he was giving a false character of the person respecting whom inquiry was made. Even where the defendant, on repeated applications being made to him, said that, to his own-knowledge, the third person was a lady of considerable fortune, and of larger expectations, whereas it turned out that she was a mere swindler; yet as the defendant really believed the representations which she had made to him, and had been himself duped by the appearance she made in the world; the action was held not to be maintainable; for the assertion of knowledge, when taken with reference to the credit and circumstances of another, means nothing more than a strong belief founded on reasonable and probable grounds. Haycraft v. Creasy, 2 East. 92. SECTION II. Actions founded in Negligence. 2 Lord WE had occasion, in the last Section, to ob- Ch.VI. f.2. serve, that in those cases where a man offici- Negligence. ously intermeddles with the character or circumstances of his neighbour, the law implies malice, and that the onus is cast on him to prove his innocence; while, on the other hand, when he appears to have acted in the regular course of business, as in answering an enquiry which has been made by a third person, or the like, it is incumbent on the party complaining to give express evidence of malice. The same principle applies to those actions which are founded in negligence. If one man keep a lion, a bear, or any other wild and ferocious animal, and such animal escape from his confinement, and do mischief to another, the owner is liable to make satisfaction for the mischief so done, without further evidence of negligence in him; for every person who keeps such noxious and useless animals must keep them at his peril. On the contrary, if a man has a dog, a bull, or any other domestic animal, such as are usually kept, and are, indeed, necessary to the existence of man; no action is Raym. maintainable for any damage done by such 109. S.C, animal, without proof that the owner knew that Raym. 1583. Ibid. Jenkins v. Salk. 662. I Lord Part II. he was accustomed to do mischief; for without Negligence such knowledge, no negligence or fault is im- · 555. 1 Lord Raym. 110. putable to the defendant. In this case, therefore, the plaintiff must not only prove the damage he has sustained, but he must also prove that the animal had before done mischief; and that the defendant having knowledge of that fact, 12 Mod. permitted him to go about. But when it is proved that the animal had once done mischief of any kind, and that the owner, after knowledge thereof, permitted him to go at large; he will be answerable for all other damages done by him, though of a different kind from that which he had before committed; and, therefore, where a dog accustomed to worry sheep was permitted to go at large, and afterwards bit a horse, the owner was held to be liable. So, the first fault being in the owner, in permitting the animal to be at large after he knew of his mischievous disposition, he will be equally liable to the action, though, in the particular instance, the party injured has been negligent or imprudent. Thus, where a person trod upon a dog which was lying at the owner's door, and the dog bit hin in consequence, yet it being proved, that the owner knew he was accustomed to bite, the action was held to be maintainable. And, in a late case, where a dog having been bitten by one that was mad, the owner fastened him up, and a child coming near him irritated him with a stick, upon which the dog flew at and bit him, in consequence Smith v. Jones v. whereof the child had the hydrophobia and Ch.VI. f.z. died; Lord Kenyon held, that the father might Negligence. maintain an action against the owner for the expences of the apothecary; because it was the duty of the owner to have destroyed the dog immediately that he knew the dog was in danger of so fatal a malady. Alestree, 1 Vent. 295. S. C. The case of the unruly horse, which, being Michel v. driven in Lincoln's-inn-fields for the purpose 2 Lev. 172. of breaking, got loose and struck the plaintiff, was determined on the same principle; the action was held to be maintainable, because there was a degree of negligence in attempting to break a young horse in so public a place; but had it not been for this negligence no action. would have been supported; and therefore, if a ship be navigating a public river, or a carriage travelling on a public road, and notwithstanding all due care and attention in the person steering the ship, or driving the carriage, it runs against another and does damage, no action lies against the owner. In these cases, therefore, it is incumbent on the plaintiff to shew negligence in the defendant or other person under whose care or conduct his ship or carriage was. Horses and carriages being generally trusted Ibid to the care of a servant, the very possession of them by such servant is evidence that they were about the business of the master, and makes him liable to an action for any injury arising by the negligence of his servant. But this is not conclusive upon the defendant, for U 2 Se mb. per Buller, J. 3 T. Rep. if 762. |