SECOND COUNT. And for that whereas at said &c., on the &c. day of &c., the plaintiff was possessed of one hundred and eight barrels of beef other than those above mentioned, of the value of &c., which the plaintiff had then before agreed to sell to one A A, and which he had contracted and engaged to deliver to the same A A, in shipping order, the plaintiff then and there employed the said T, as the servant of him, the plaintiff, for a certain reasonable reward to be therefor paid by the plaintiff to the said T, to pack the said last mentioned beef so as to preserve the same in shipping order, and then and there delivered the said last mentioned beef to the said T, for the purposes aforesaid, and the said T, in consideration of the premises, then and there promised the plaintiff, that he would carefully and skilfully pack the said last mentioned one hundred and eight barrels of beef, so as to preserve the same in shipping order; yet the said T, not regarding his promise last above mentioned, did not, carefully and skilfully pack the said last mentioned beef, so as to preserve the same in shipping order, but thereafterwards, on the same day, did so carelessly and unskilfully pack the same beef, that by and through the mere carelessness, neglect and default of the said T, in the premises, the same beef was not preserved in shipping order, whereby not only the same beef was greatly damaged, but the same A A, to whom the plaintiff afterwards sold and delivered the said last mentioned beef, according to his promise and agreement last abovementioned, caused the same one hundred and eight barrels of beef to be opened, searched, and packed anew, and a large quantity of salt to be added and put into each of the same barrels, to preserve the same beef in shipping order as aforesaid, and the plaintiff has been compelled to pay, and has paid, another large sum of money, to wit, the sum of $— for the salt so added to the same last mentioned barrels as aforesaid, and for the cooper's bill and other necessary charges and expenses in the opening, searching and packing anew the said last mentioned beef, as aforesaid, to wit, at said, &c. Proctor v. Greenleaf. C. JACKSON.

Against a coroner for not serving an execution, but returning it fully satisfied by taking note of debtor for the amount.

For that whereas the plaintiff, by the consideration of our justices of our court of C. P., held at &c., on &c., within and for the county of &c., recovered judgment against A,

&c., sheriff &c., for $- debt, and $- costs of suit; and on &c. took out a second writ of execution thereon, in form by law prescribed, directed to the coroner of our said county, or his deputy, and returnable &c.; and on &c., delivered it to the said D, then and still coroner of the same county, to be executed and returned according to law; yet the said D hath not executed the said writ, nor made any lawful return thereupon; but on &c., returned thereupon into our said court, that he had taken of A, his note for the satisfaction of the said execution, and returned it fully satisfied, whereby the plaintiff hath lost the benefit of the said execution; to the damage, &c.

Against sheriff, for his deputy's releasing goods attached.

For that one B C was indebted to the plaintiff in the sum of $-, for certain goods before that time sold and delivered to said B C at his request; and the plaintiff, in order speedily to recover said debt, on &c., sued out, in due form of law, our writ of attachment against the said B C, returnable to our court of C. P. then next to be holden at &c., on &c., within and for the county of &c., and directed to the sheriff of our said county, or his deputy, to serve and return the same according to law; and afterwards, on &c., the plaintiff delivered the same to one E F, then and still a deputy-sheriff of the said D, [defendant] high sheriff of the said county, who, by virtue thereof, attached [insert the goods] all of the value of $-, the estate of the debtor aforesaid, and served and returned the said writ accordingly to the said court of C. P., to which the same was returnable as aforesaid; at which said court the plaintiff entered his action aforesaid, and thereupon, by the consideration of our justices of the same court, recovered judgment for the said sum of $-, and $- costs of suit, as by the record, &c.; yet neither the said D, nor any of his deputies, for whose defaults he is answerable, did retain and keep the said goods for the space of thirty days after the judgment aforesaid was rendered, to the end that the plaintiff might take them in execution to satisfy said judgment, being no otherwise satisfied within that time; but within the said thirty days they released the said goods, and discharged them from the arrest aforesaid, against the law in that case provided. And the plaintiff avers, that the same judgment is still unsatisfied; whereby the plaintiff has lost his whole debt and costs aforesaid.

Against Justice of the Peace, for fraudulent and corrupt conduct in his office.

For that the said D, on &c., was, and from that time to this has been, and is, one of our justices assigned to keep the peace within and for our said county of Essex. And the plaintiff, on &c., was pregnant with a female bastard child, afterwards born of her body, and now alive. And one R M, then of L aforesaid, mariner, but since deceased, was the father of said child, and was liable to be pursued by the plaintiff, and held to assist her in the maintenance of said child. And the plaintiff, afterwards, viz. on &c., made complaint and oath, at M, in the same county, before J B, Esq., one of our justices assigned to keep the peace in and for our said county, that the said R had begotten her with child, with which she was then pregnant; and procured a lawful warrant, directed to the sheriff of said county, or his deputy, or either of the constables of L, aforesaid, ordering them to apprehend the said R, and to have him before the said justice, or some other justice of the same county, that a lawful proceeding might be had against the said R upon the complaint aforesaid. And afterwards, viz. on the same day of &c., the plaintiff delivered the said warrant to one W P, then a constable of the said town of L, to be by him executed. And afterwards, on &c., the said constable, by force of the said warrant, took the body of the said R, and some time after, in the same month, carried him before the said D in said L; and at the same time, he, the said D, at his own house at L, aforesaid, undertook to take cognizance of the said warrant and complaint; but the said D, then and there, contrary to his duty and oath as a justice of the peace, corruptly and fraudulently contriving to deceive and injure the plaintiff, and prevent her from having any benefit from the complaint and warrant aforesaid, by taking the said Ras aforesaid, wrote a false and deceitful return of the said W P's doings, ou the back of said warrant, and caused the said constable to sign it; in the same return setting forth that the said W P, constable as aforesaid, had, by virtue thereof taken the said R, and carried him before the said J B, Esq., all which was contrary to the truth; yet the said D kept the said warrant, and against the will of the plaintiff, declared, that his court for the hearing of the complaint and procedure thereon, was adjourned to some future day, without causing the said R to be bound to appear at any other

time or place to answer the plaintiff's complaint and warrant aforesaid. And the said D suffered and caused the said R to make his escape. And the said R was carried beyond the seas, and there died, without ever returning; whereby the plaintiff could never procure the said R to be taken after he had so escaped, and has lost all benefit of the warrant and complaint aforesaid, and has been put to great trouble and expense thereby, for the process aforesaid, and been forced to maintain the said child herself, by reason of the negligence, misfeazance, and fraud of the said D, in his office of justice of the peace, as aforesaid; all which is to the damage, &c. Merry v. Collins.

NOTE. If a judge in the ordinary exercise of his jurisdiction commit an error, he cannot be prosecuted; but if he commit an error in acting beyond his jurisdiction, he is not protected. See the King v. Sainbury, 4 T. R. 451. Lord Ellenborough in R. v. Picton, 30 Howell's St. Tr. 489.

6. Malicious Prosecution, Conspiracy.

Where a criminal prosecution, or a civil suit is commenced against one, from malice or other corrupt motive, without ground or probable cause, an action on the case may be maintained for a malicious prosecution. But malice and the want of probable cause must both concur, or the action cannot be maintained. For, if there is apparently a good cause of action, the law will not inquire into the motives of the party instituting the suit. And, if there is no malice, the ground of action fails. But, if there is no probable cause for the original action, a prima facie case of malice will be made out, and the onus probandi to rebut it, will lie upon the defendant. But, where the plaintiff claims title to any thing in a civil action, no malice can be inferred from his failing in his suit, if there are no circumstances of oppression, in the mode of conducting it. For every man has a right to appeal to the regula tribunals of justice, for the decision of his claims, and the costs, which in such suit, he is compelled to pay the defendant, operate as a sufficient check to litigation, and afford the defendant a sufficient recompense for his time and trouble. Yet, if any special damage accrued in consequence of such malicious and groundless suit, it seems most probable that the court would sustain the action. For it has been settled, that where a person, for the sake of oppressing another, holds him to bail for a much larger sum than he really owes, whereby he is imprisoned, such person may recover for the injury in this action. 1 Sid. 424. A fortiori, it would seem an action might be maintained, if the plaintiff was imprisoned on an action wholly groundless. 1 Saund. 228. See Watkins v. Baird, 6 Mass. R. 506.

So also this action might be maintained for any special damage, if the goods of a person should be attached and removed on a groundless and malicious suit. Doug. 677. But not without special damage. See Lord Raymond, 380. So for commencing a suit in a court, which the plaintiff knows can have no jurisdiction of the cause. 2 Wilson, 302.

So for commencing a suit in another's name, without authority from him, and whether such person had a cause of action or not. Salkeld, 14.

In this action, malice and want of probable cause are essential, but the want of probable cause, unexplained, will lead to the inference of malice. 4 Bur. 1974.

What amounts to probable cause is for the court to decide.

An action on the case, in nature of a writ of conspiracy, lies where two or more combine together maliciously and without probable cause, to prosecute another, or to procure him to be indicted, or to do him any other injury either in his person or property. Salkeld, 14. One

alone may be sued, but it must be alleged, that he conspired with some other or others. See Stra. 144. Though if these words are omitted, it is only matter of form, being merely an aggravation. 6 Mod. 169.

The action on the case for a conspiracy is local, and must be brought where the conspiracy is alleged, and not where the indictment was tried, or where the deed was done.. F. N. B. 265, M.

Where A on the same demand, commenced two different actions, and on each caused B's goods to be attached, and the latter of the two suits was abated by plea, and B recovered costs, it was held, that Trespass would not lie, and that Case is the proper and exclusive remedy for an injury of this kind. Hayden v. Shed, 11 Mass. R. 500. See also White v. Dingley, 4 Mass. R. 433.

Of the declaration in this action, &c.

The declaration must allege malice and want of probable cause. 1 Leo. 108; 9 East's R. 361; 1 Term Reports, 544; 4 Bur. 1971; Salkeld, 14.

If for a malicious prosecution of a civil suit, it must show that the suit is terminated. Doug. 215; 2 T. R. 225; 2 Wils. 210.

If for a malicious criminal prosecution, it should set forth that the plaintiff was acquitted, or that the jury found ignoramus to the bill. 12 Co. 23; 1 Sid. 15; 9 East's R. 157.

Or otherwise, that the defendant knew that the court had not jurisdiction.

It is not sufficient to aver, that the plaintiff was discharged from imprisonment, because that does not show that the prosecution is at an end. An acquittal for want of prosecution, or a non pros, does not furnish an inference of malice; but from the want of probable cause, malice is usually inferred. 9 East's R. 361; 4 Taunt. 7; 1 T. R. 784.

The proceedings on the original prosecution on which this action is grounded, should be set out accurately and truly, so far as necessary, or it will be fatal.

Malicious prosecution and slander, on a charge of shooting a coll, &c.

For that whereas the said plaintiff is, and always was, a peaceable, quiet, and honest person, free from the crime of secretly, privately and maliciously destroying his neighbor's goods or chattels, or injuring them or others of the good citizens of this commonweath, privately or maliciously, in their persons or estate; of all which the said D was well