con. will lie where the parties are sepa- cessarily live apart, letters expressive of rated by mutual consent. Hodges v. their attachment may be read to increase Windham, Peake, 39. Kenyon, C. J. the damages, provided it can be dis1791. tinctly shewn that they were written at a 2. An action for crim. con. cannot be time when there was no suspicion of maintained by a man who has permitted misconduct. Edwards v. Crock, 4 Esp. his wife to carry on an illicit intercourse, 39. Kenyon, C. J. 1801. although not with the defendant. Ibid. 12. In this action letters written beAnd see 2 Inst. 436; Sed vide ibid.tween husband and wife are admissible 435; Co. Litt. 32 a. n 10; Fitz. N. B, without shewing why they lived apart, if 89, O. there be some evidence that were not 3. Semble, that no action lies for an written subsequently to their date. Treact of adultery committed after the hus-lawney v. Colman, 2 Stark. 191. Holband and wife are separated. Weedon v. royd, J. 1817. Timbrell, 1 Esp. 16. Kenyon, C. J. 1793. And the court of K. B. discharged a rule for a new trial; 5 T. R. 357. 4. S. P. ruled in Bartelot v. Hawker, Peake 7. Kenyon, C. J. 1790. Sed vide Chambers v. Caulfield, 6 East, 244, 9, 54; S. C. 2 Smith, 356, 65. 5. A master, upon the seduction of his servant, may recover damages beyond the mere loss of service, though he be not related to her. Fores v. Wilson, Peake, 55. Kenyon, C. J. 1791. 23. And see Irwin v. Dearman, 11 East, And the court refused a rule for a new trial. Ibid. 13. And semble, it is sufficient for the purpose of proving this, if a witness recollects the contents of a letter written about the time, and corresponding in substance with the one produced. Ibid. 14. So a witness may speak of the judgment she formed, from the wife's expressions and conduct, of her affection at the time. Ibid. 15. Ruled, that an action for crim. con, could not be maintained by a husband, who, at the time of the injury, was living in open adultery. Wyndham v. Lord Wycombe, 4 Esp. 16. Kenyon, C. J. 1801. 16. S. P. Strutt v. Marquis of Bland 6. In an action for crim. con. evidence of the wife's misconduct with others, previously to the commission of the act for which the action is brought, ford. Ibid. is admissible in mitigation of damages. 17. But in a subsequent case it was Elsam v. Fawcett, 2 Esp. 562. Kenyon, held, that the misconduct of the husband went only in mitigation of damages. Bromley v. Wallace, 4 Esp. 237. Alvanley, C. J. 1802. C. J. 1797. 7. Or a letter from her, enticing the defendant into the connection. Ibid. And see Gardiner v. Jadis, Selw. N. P. 25. Hodgson's case, Phill. Ev. 140. 8. But subsequent acts of misconduct are not admissible. Ibid. 9. An unsuccessful attempt by the defendant to impeach the husband's character, will not entitle the latter to call witnesses in support of his character. King v. Francis, 3 Esp. 116. Kenyon, C. J. 1800. 18. And that nothing short of consent was a bar to the action. Ibid. And see Hoare v. Allen, Selw. 12; Colley v. Cibber, ibid. and Bull. N. P. 27; Duberley v. Gunning, 4 T. R. 655. 19. If A. recover against B. in an action for crim. con. he is not precluded from suing C., who appears to have carried on an illicit intercourse with the wife during the same period. Gregson, one, &c. v. M'Taggart, 1 Campb. 415. Ellenborough, C. J. 1808. A. (b) Harbouring wives. 10. A witness may be called by the husband to prove the representation made to him by the wife on leaving his house for the purpose of rebutting a suspicion of connivance in her elopement. Hoare v. Allen, 3 Esp. 276. Kenyon, C. J. 20. Where a woman is compelled by 1801. ill-treatment to leave her husband's 11. Where the husband and wife ne-house any person may receive and pro tect her. Berthon v. Cartwright, 21 Esp. 480. Kenyon, C. J. 1796. And see Bamfield v. Massey, 1 infra 21. 21. And it is sufficient if the wife represent herself to have been ill-treated. Philip v. Squire, Peake, 82. Vide Y. B. 20 H. 7. 2. b.; Rex v. Wiseman, 2 Smith, 617, 8. As to this action, see Y. B. 1 E. 4. 1. a; Winsmore v. Greenbank, Willes, 577; F. N. B. 51 K. A. (c) Seducing daughters, &c. (And see TRESPASS A.) And the court refused a rule for a new trial, upon the ground of excessive damages. Ibid. Parker v. Langley, 10 Mod. 202; Fisher v. Bristow, Dougl. 215. A. (d) Enticing away servants. 29. No action lies for engaging a servant from the expiration of the period for which he is hired, though he had no intention of quitting his master's service. Nichol et alt v. Martyn, 2 Esp. 732, 4. Kenyon, C. J. 1799. As to employing servants during the 22. Where a father permits a person, term of their engagement, see Adams and who has confessed that he is a married Bafield's case, 1 Leon, 240; Fawcet v. man, to continue his visits as a suitor to Beavres et ux. 2 Lev. 63; Regina v. his daughter upon an alleged probability Daniel, 1 Salk, 380; Hart v. Aldridge, of a divorce, or of the death of the wife, Cowp. 54; Blake v. Lanyon, 6 T. R. an action for seduction cannot be main-221; Vin. Abr. Master and Servant, O. tained. Reddie v. Scoolt, clerk, Peake, 240. Kenyon, C. J. 1794. 23. In this action the plaintiff may give evidence of the general good conduct of his family, and of the number of his other children in aggravation of damages. Bedford v. M'Kowl, 3 Esp. 119. El don, C. J. 1800. 24. But he cannot shew the servant's general character for chastity, unless that character have been impugned on the other side. Bamfield v. Massey. 1 Campb. 460. Ellenborough, Č. J. Maidstone, 1808. Ibid. R. 6 marg. ; ibid. R. 7; Bac. Abr. A. (e) Keeping mischievous animals. (And see TRESPASS, B. 2.) 30. Common report that a dog has been bitten by a mad dog, is sufficient to make it the duty of the owner to confine him. Jones v. Perry, 2 Esp. 482. Kenyon, C. J. 1796. S. C. Peake's L. Ev. 292. And see King v. Francis, ante A. (a) 8. 31. And it is said to have been ruled, 25. An attempt to impugn the charac-that the owner of a fierce and unruly dog, ter of the servant on his cross-examina-is bound to secure him without notice. tion is not sufficient. Dodd v. Norris, 3 Ibid. Campb. 519. Ellenborough, C. J. 1814. 26. And it is not sufficient that the defendant has attempted to prove a single act of unchastity before her acquaintance with him, if no evidence of general bad character have been offered. Bamfield v. Massey, ubi supra. And see Clarke v. Periam, 9 Mod. 340, 6. 32. But it has since been held, that it is not sufficient to shew that the dog was fierce, and usually tied up, and that after the injury the defendant promised satisfaction. Beck and wife v. Dyson, 4 Campb. 198. Ellenborough, C. J. 1815. And see 2 Stark. 214. note (b). 33. Held that a declaration which avers that the dog was accustomed to bite 27. Evidence that the defendant pre-sheep, is supported by his having chased vailed by means of a promise of marriage sheep and jumped at a man. Hartley v. is inadmissible. Dodd v. Norris, ubi Halliwell, 2 Stark. 212. and Holt. 617; supra. Wood B. Carlisle, 1817. 28. Where a defendant has confessed. But the court of K. B. set aside the the seduction, it is unnecessary to produce verdict found for the plaintiff. 2 Stark. the party seduced, though the withhold-212. Mason v. Keeling, 12 Mod. 332. ing of her is open to observation. Far- S. C. differently reported. 1 Lord Raym, mer v. Joseph, Holt. 451. Wood B. 606; Bayntine v. Sharp, 1 Lutw. 90. York, 1816. Buxendine v. Sharp, 2 Salk, 662; Smith v. Pelah, 2 Stra. 1264. ante, p. 2. § 5, 6. A. (f) Using dangerous instruments. 34. A party who entrusts a gun to indiscreet hands, must render it perfectly innoxious. Dixon v. Bell, 1 Stark. 287. Ellenborough, C. J. 1816. court is not sufficient. Jackson v. Burleigh, 3 Esp. 34. Kenyon, C. J. 1799. N. Nor is a judgment of Nonpros. Sinclair v. Eldred, 4 Taunt. 7. 42. Declaration stated, that B., the now defendant, had no cause of action, to the amount of 107., against A., the now plaintiff. It appeared that B. had a demand of 121., but that he had held A. to bail for a much larger sum. The trial 35. Held that in the estimate of special damage, surgeon's bill, though unpaid, may be taken into account, but physi-was suffered to proceed by Gould, J.; cian's fees not, unless paid, for they are not recoverable. Dixon v. Bell, 1 Stark. 287. Eilenborough, C. J. 1816. A. (g) Malicious arrest. but the court of K. B. set aside a verdict for the plaintiff. Wilkinson v. Mawbey, bart. cited 1 Campb. 297. 43. But where, upon a similar declaration, it appeared that B. had a demand 36. In this action it is not sufficient to against A. for 1001. for a different cause prove the affidavit, the writ returned of action from that expressed in the afficepi corpus, the actual arrest, and judg-davit, but was indebted to A. in a greater ment of non pros. To shew that the ar-amount upon the balance of accounts, it rest was made under the defendant's was held that A. might recover. Wewrit, it is necessary to prove the warrant, therden v. Embden, 1 Campb. 295. Lloyd v. Harris, Peake, 174. Ken-Mansfield, C. J. 1808. yon, C. J. 1793. And B. having moved in arrest of And see Drake v. Sykes, 7 T. R. 113. judgment, on the ground that the manner Post Trespass, B.; Sheriff C. in which the suit had ended was not pro 37. To shew the former suit determin-perly shewn, the court ruled that as it ed, semble, that it is not sufficient to pro-was averred that the suit was ended, it duce the judge's order to stay proceed-was unnecessary to state the manner; 2 ings upon payment of costs, and to prove Chitty on Pleading, 294. note (e). 2d that the costs were paid accordingly. edition, S. C. And see 3 Lord Raym. Kirk v. French, 1 Esp. 80. Kenyon, 300; Morg. Prec. 404. Quære tamen, C. J. 1794. Acc. Barton v. Mills, Cases temp. Hardw. 125, 6. And see Goddard v. Smith, 1 Salk, 21. S. C. 2 Salk, 456. S. C. more fully reported, 6 Mod. 262. 38. But the production of the rule of court to discontinue, with proof of the taxation and payment of costs, is sufficient. Bristow v. Haywood, 3 Campb. 213. 1 Stark. 48. Ellenborough, C. J. 1815. 39. Although it be averred that the plaintiff was detained until he found bail, any detention under the arrest will support the action. Ibid. 40. The discontinuance of an action on a bill, in respect of which the party had been previously discharged by the laches of the plaintiff, is not sufficient to raise the presumption of malice. Ibid. 1 Stark. 48. whether it should not appear that the first action had terminated in favour of the now plaintiff; see Y. B. 2 R. 3. 9. pl. 22; Dyer, 284; Arundell v. Tregons, Yelv. 117; Parker v. Langly, 10 Mod. 145, 209; S. C. Gilb. Cases, 163; Hunter v. French, Willes, 520. n; Fisher v. Bristow, Dougl. 215; Morgan v. Hughes, 2 T. R. 225. That the omission would have been fatal on demurrer; see Blackgrave v. Oden, 2 Vin. Abr. Action Case, 35 pl. 23 marg. See also Skinner v. Gunter, 1 Saund. 229, 2d point. 44. Where cross demands are separate and distinct, and A. to whom the larger sum is due, arrests B. for the balance only, and B. arrests A. for the smaller sum due to himself, no action will lie for the second arrest. Brown v. Pigeon, 2 Camph. 594. Ellenborough, C. J. 1811. 41. It lies upon the plaintiff to fix the defendant with full knowledge that the N. Secus, where the accounts are musum sworn to was not due. The circum-tual and unliquidated. Turlington's stance of his taking a less sum out of case, 4 Burr. 1996; Tidd, 176. And see Middleton v. Hill, M. and S. Iman, 2 Stark. 162. Ellenborough, C.J. 240. 1817. 45. Such a vexatious proceeding was, 53. So evidence that the defendant however, considered a fit subject for a stated facts, amounting to a tortious consummary application to a judge, who or- version only, upon which a magistrate dered the proceedings in the former ac- caused the plaintiff to be apprehended tion to be stayed upon the payment of on suspicion of felony, will not support the balance and costs, and the latter to a count for imposing the crime of felony. be stayed without costs. Ibid. Leigh v. Webb, 3 Esp. 165. Eldon, C. 54. And semble, that no action can be maintained in such case. Ibid. 46. B., after taking A.'s bail in execu-J. 1800. tion, issued a test, ca. sa. upon a pleader's opinion, and a reported case, under which A. was detained in custody till discharged, by rule of court (2 M. and S. 341). Held that here was ignorance only, and no malice. Snow v. Allen, 1 Stark. 502. Ellenborough, C. J. 1816. And see Anon. Moore 6, pl. 22; Mure v. Kay, 4 Taunt. 34; Haynes v. Rogers, Show, 282. 55. But an averment of a charge of felony made before a magistrate, is sup47. Defendant sued plaintiff by mis-ported by proof of a charge upon suspi take. The officer demanded payment, cion only. Davis v. Noak, 1 Stark. 377. but, on the plaintiff's denying the debt, Ellenborough, C. J. 1816. said he would inquire into the matter. And the court discharged a rule for a The mistake being discovered, the plain- new trial. Ibid. tiff was told that he need give himself no 56. Upon an indictment for felony, the further trouble. The plaintiff, however, jury pause before they acquit the prisochose to give money to the bailiff, and ner; but he is not called upon for his put in bail above. Held, that no action defence. This is evidence of probable could be maintained. Bieten v. Bur-cause. Smith v. Macdonald, 3 Esp. 7. ridge and others, 3 Campb. 139. El-Kenyon, C. J. 1799. lenborough, C. J. 1811. And see Lilwal v. Smallman, Selw. Acc. Arrowsmith v. Le Mesurier, 2. 946; Golding v. Crowle, Bull. N. P. 57. Positive evidence must be given of the absence of probable cause. Therefore where the plaintiff has been indicted for perjury, it is not sufficient to shew, that he was acquitted for want of prosecution, that the facts lay peculiarly within the knowledge of the defendant, and that the indictment contained many 49. In the estimate of damages, the costs incurred by plaintiff should be reckoned as between attorney and client. Sandback v. Thomas, 1 Stark. 306. El-frivolous assignments of perjury, there lenborough, C. J. 1816. A. (h) Malicious prosecution. 50. Defendant indicted plaintiff for an assault, having struck the first blow himself. This circumstance alone will not support an action. Fish v. Scott, Peake 135. Kenyon, C. J. 1792. 51. After giving evidence of probable cause, the defendant may shew that the plaintiff was a man of bad character; but he cannot enter into particular facts. Rodriguez, v. Tadmire, 2 Esp. 721. Kenyon, C. J. 1799. being one substantial charge. Purcel v. M'Namara, 1 Campb. 199. Ellenborough, C. J. 1808. And the court of K. B. refused a rule for setting aside nonsuit; ibid. and 9 East, 361. And as to the second point, see Parrot v. Fishwick, Bull. N. P. 14; better reported 9 East, 362 n. 58. A., as attorney for B., sues C. in the exchequer. C. indicts A. and B. for conspiracy. Upon being acquitted, A. brings an action against C., and proves that the suit in the exchequer was well founded, and that C. did not appear to This is not burthen of 52. A charge of felony is not justifiable prosecute his indictment. where there has been a taking under a sufficient to throw on C. the claim, though tortious. Wallace v. Jar-shewing a probable cause. Sykes one &c. v. Dunbar, 1 Campb. 202. n. Kenyon, C. J. 1799. Jackson 66. If the driver do not take the safest possible course, the owner is responsible 59. Nor is the abandonment of a prose-for the mischief which ensues. cution coupled with evidence of express v. Tollett, 2 Stark. 37. Ellenborough, malice, sufficient to throw this burthen C. J. 1817. on the defendant. Incledon v. Berry (Bury) and others, 1 Campb. 203, n. Le Blanc, J. Exeter, 1805. 61. The driver of a carriage is not bound to keep the left side of the road, provided he leaves sufficient room for other carriages, &c. that may meet him on their proper side. Wardsworth v. Willan and others, 5 Esp. 273. Rooke, J. 1805. way 67. Though driving on his own side of the road. Mayhew v. Boyce, 1 Stark. 423. Eilenborough, C. J. 1816. B. (b) Nonfeasance. (And see post AGENT, C. (a); INDICTMENT (a); F. N. B. 183. N. note (a).) 69. An action on the case will lie 62. The driver of a stage coach, where against the owner of a lighter sunk in the lies under a low, and almost im- the Thames, who neglects to place a passable, gateway, is bound to inform the buoy over the spot, for damage done to outside passengers of the full extent of a barge by striking against it, though the their danger. Dudley v. Smith, 1 Campb. bargeman was verbally warned of the 167. Ellenborough, C. J. 1808. defendant for that purpose. Harmond danger by a person placed there by the v. Pearson, 1 Campb. 517. Ellenborough, C. J. 1808. And see Brucker v. Fromont, 6 T. R. 661. 63. A passenger being alarmed, leaped off and broke his leg. Left to the jury to consider-1st, Whether the alarm was consequent upon any default of defendant-2dly, Whether the alarm was reasonable. Jones v. Boyce, 1 Stark. 493. Ellenborough, C. J. 1816. Verdict for plaintiff. And see RIVERS, 3. 70. Semble, that a party licensed to let horses is under no legal obligation to furnish them. Dicas v. Hides, Holt. 207. 1 Stark. 247. Le Blanc, J. Lan caster, 1816. 64. A coachman, when there is no other carriage on the road, may drive in B. (c) Obstruction of plaintiff's trade. what part of it he thinks proper. Under 71. An action lies against the master such circumstances, therefore, he is not of a vessel for purposely firing at the naresponsible for the consequences of antives on a foreign coast, and thereby accident which would not have arisen if preventing them from trading with it had happened that he had kept the the plaintiff. Tarleton and others, v. left side of the road. Aston v. Heaven and M'Gawly, Peake, 205. Kenyon, C. J. another, 2 Esp. 533. Eyre, C. J. 1797. 1793. 65. Proof that a stage coach broke 72. Although it appear that the defendown, and that the plaintiff, a passenger, dant had not conformed to the laws of was greatly bruised, is sufficient to raise that country, by paying a duty imposed the presumption that the accident arose upon licences to trade. Ibid. either from the unskilfulness of the dri- 73. A. cannot maintain an action for a ver, or the insufficiency of the coach. libel upon B., whereby the latter was Christie v. Griggs, 2 Campb. 79. Mans-deterred from singing at A.'s theatre, to field, C. J. 1809. the diminution of his profits. Ashley |