that the record of the indictment for felony, or a true copy, must be received in evidence, although it does not appear that the officer producing the record, or giving the copy, had any authority from the court, or any fiat from the attorney-general for that purpose. The distinction between felony and misdemeanour was taken by Lord Mansfield, C. J., in Morrison v. Kelly, B. R. Middx. Sittings, 1 Bl. R. 385. That was an action for a malicious prosecution, in indicting plaintiff for keeping a disorderly house. To prove the fact, the clerk of the peace for the Westminster sessions attended with the original record of the acquittal. It was objected, that there ought to be a copy of the record granted by the court before which the acquittal is had, in order to ground an action for a malicious prosecution. But per Lord Mansfield, although this is necessary, where the party is indicted for felony, yet the practice is otherwise in cases of misdemeanour. There is a short note in Strange's Reports, from which it appears to have been the opinion of Lee, C. J., that if the copy of the indictment has been granted by order of court, it is sufficient, although it was not granted to the plaintiff in the action for malicious prosecution, or at his instance. The plaintiff and another were indicted at the Old Bailey sessions for forgery (a), and acquitted, and a copy of the indictment granted to the other only. In this action, which was for a malicious prosecution, the plaintiff offered the copy in evidence, and the order at the Old Bailey was read by way of objection. But the Chief Justice (Lee) said, he would not refuse to let the plaintiff read it (the copy of the indictment); for an order was not necessary to make it evidence (b), nor is it ever produced in order to introduce it. So the copy of the indictment was read, and a verdict obtained for the plaintiff; which the court refused to set aside.

If the proceeding was by preferring a charge before a magistrate, the magistrate or his clerk should be served with a subpœna duces tecum, to produce the proceedings (c). If the information was laid by the defendant, his taking the oath and handwriting should be proved, as also the issuing the warrant to the constable, &c.; the warrant must also be produced and proved, and evidence must be given of the apprehension and detention of the plaintiff under the warrant; and his ultimate discharge must also be shown (d).

An averment, that the suit is wholly ended and determined, is evidenced by proof of the rule to discontinue upon payment of costs, and that the costs were taxed and paid (e). So where a suit was

(a) Jordan v. Lewis, Str. 1122; 14 East, 305, n., S. C., from Mr. Ford's MS. See also Str. 856, and Caddy v. Barlow, 1 Man. & Ry. 275.

(b) Legatt v. Tollervey, 14 East, 302, S. P. See also Stockfleth v. De Tastet,

4 Campb. 10.

(c) 2 Stark. Law of Slander and Libel, 70, 71, 2nd edit.

(d) Ib.

(e) Bristow v. Heywood, 1 Stark. N. P. C. 48; 4 Campb. 214, S. C. But see Watkins v. Lee, 5 M. & W.270.

determined by a rule of court; it was holden (ƒ), that the production of the rule of court was sufficient evidence of that fact. This action cannot be maintained without proof of malice, either express or implied. Malice may be implied from the want of probable cause, but that must be shown by the plaintiff. Proving an acquittal for want of prosecution is not primâ facie evidence of malice to support this action. In an action for a malicious prosecution against the defendant (g) for having indicted the plaintiff for perjury, the proof on the part of the plaintiff (in addition to the formal proof of the record of acquittal) was, that after the indictment found was ready for trial, the prosecutor (the present defendant) was called, and did not appear; on which the verdict of acquittal passed. Lord Ellenborough, C. J., thought that this was not sufficient to support the action, without evidence of express malice, or at least of circumstances evincing such entire want of probable cause, whence malice was to be presumed, and therefore he nonsuited the plaintiff. The court of B. R. afterwards concurred in opinion with the C. J. N. The indictment assigned the perjury on an affidavit made by the plaintiff swearing to words uttered by the defendant. In an action for a malicious prosecution of indictment for perjury, the chief justice allowed the plaintiff to give in evidence an advertisement put into the papers by the defendant of the finding of the indictment, with other scandalous matter, although an information had been granted for it as a libel; not, as he said, that the jury were to consider it in damages, but only as a circumstance of malice (h). In an action for a malicious prosecution for forging a note of hand, four witnesses proving that the handwriting was not the plaintiff's, the judge directed the jury in his favour (i). Where a person

prosecutes on the representations of others, he should show that he did all he could, or used proper and reasonable means and precaution, to discover the truth, and that he acted on a belief that he was right; otherwise the want of probable cause will subject him to the imputation of malice, and consequently to this action. MSS. It must appear that the plaintiff was acquitted upon the prosecution (k), before the action was brought; but the day of the acquittal is not material. Hence, where it was stated in the declaration, under a scilicet, that the acquittal took place on the morrow of the Holy Trinity, (which allegation was not accompanied with a pro ut patet per recordum,) and by the record, when produced in evidence, it appeared that it took place on Tuesday next after Easter Term; the latter day having been before action brought, the variance was holden to be immaterial, on the ground that the day mentioned in

(f) Brook v. Carpenter, 3 Bingh. 297.
(g) Purcell v. Macnamara, 9 East, 361.
(h) Chambers v. Robinson, Str. 691.
(i) Norris v. Tyler, Cowp. 37.
(k) Purcell v. Macnamara, 9 East, 157,

in which Pope v. Foster, 4 T. R. 590, was overruled. See also Woodford v. Ashley, 2 Campb. 194; Phillips v. Shaw, 4 B. & A. 435; and Stoddart v. Palmer, 3 B. & C. 2.

"as

the declaration was not alleged as part of the description of the record of acquittal (7). So where, in an action for a false return to a fieri facias, the declaration stated, that the plaintiff in Trinity Term, 2 Geo. IV., recovered, &c., "as it appears by record," and the proof was of a judgment in Easter Term, 3 Geo. IV.; it was holden (7), that this was not any variance; for that the averment "as appears by the record," was surplusage, and might be rejected, inasmuch as the judgment was not the foundation of, but inducement to, the action. But where a declaration against the marshal for an escape alleged that S. S. was arrested and gave bail, that afterwards bail above was put in before a judge at chambers, appears by the record of the recognizance;" that S. S. surrendered in discharge of the bail and afterwards escaped: it was holden (m), that the averment was not made out by the production of the filazer's book, the entry therein importing that the recognizance was taken before a single judge, an examined copy of the entry of the recognizance of bail, stating that the recognizance was taken before the court at Westminster, having also been given in evidence. In an action on the case for a malicious prosecution (n), where there was not any person present at the time when the supposed felony was committed, except defendant's wife; Holt, C. J., allowed the evidence of the wife, given at the trial of the indictment, as good evidence to prove a felony having been committed. In an action on the case for maliciously indicting plaintiff and others for a conspiracy (o), the counsel for the plaintiff called one of the grand jury, before whom the bill of indictment had been preferred, and found a true bill, to prove that the defendant was the prosecutor of the indictment. Garrow, for the defendant, objected to his being examined, observing, that the grand juryman could collect this circumstance of defendant's having been the prosecutor, from the testimony only which had been produced before him in his character of grand juryman, and which by his oath he was bound not to

(1) Stoddart v. Palmer, 3 B. & C. 2. (m) Bevan v. Jones, 4 B. & C. 403. (n) Johnson v. Browning, 6 Mod. 216. (0) Sykes, Gent., one, &c. v. Dunbar, Middlesex Sittings after M. T. 40 Geo. III.

Kenyon, C. J., MSS. See the remarks of Mr. Starkie on this case in vol. 2, p. 70, n. (p), of the second edition of his valuable treatise on Slander and Libel.

(7) "There are two sorts of allegations; the one of matter of substance, which must be substantially proved; the other of description, which must be literally proved." Per Lord Ellenborough, C. J., S. C. "Where the day laid is made part of the description of the instrument referred to, which instrument is necessary to be proved, the day laid must be proved as part of that instrument. But where the day laid is not material in itself, and need not have been proved as laid; supposing the proof to have been by parol, if the fact proved will support the declaration, I see no ground for any distinction between making such proof by matter of record or by parol." Per Lawrence, J., S. C., 9 East, 162. 2 c

VOL. II.

disclose; but Kenyon, C. J., thought that the question of "who was the prosecutor of the indictment?" was a question of fact, the disclosure of which did not infringe upon the grand juryman's oath, and therefore permitted him to be examined as to that point. Case for a malicious prosecution of an indictment (p), whereof (as was alleged) plaintiff was legitimo modo acquietatus; upon the trial it appeared, that he was acquitted no otherwise than by an entry of a nolle prosequi. Per Cur. "This evidence does not support the declaration; for the nolle prosequi is a discharge as to the indictment, but it is not an acquittal of the crime." In an action for a malicious arrest, the plaintiff cannot recover (q) damages for the extra costs. If two are found guilty, it must be of joint acts (r), and the damages must be joint. Action for malicious prosecution for perjury, where there had been thirty-three assignments, the defendant proved, that he had probable cause for many of the charges; but knowing one of them to be false, Lord Mansfield, C. J., held, that the plaintiff should recover for that one, though there was probable cause for the others. Jury found 1007. damages for the plaintiff (s).

(p) Goddard v. Smith, Salk. 51; 6 Mod. 261, S. C.

(q) Sinclair v. Eldred, 4 Taunt. 7, recognized by Best, C. J., in Webber v. Nicholas, Ry. & Moo. 419. Contra, per Ld. Ellenborough, C. J., in Sandback v.

Thomas, 1 Stark. N. P. C. 306.

(r) Hilditch v. Eyles, H., 29 Geo. III., coram Wilson, J., Guildhall, MSS.

(s) Prosser v. Nixon, cited in Sutton v. Johnstone, 1 T. R. 533.

CHAPTER XXVIII.

MANDAMUS.

I. Nature of the Writ of Mandamus, p. 1077; Mandamus to restore or admit Persons to Corporate Offices, p. 1078.

II. In what other Cases the Court will grant a Mandamus, p. 1083. III. Where not, p. 1087.

IV. Form of the Writ, p. 1089.

V. Of the Return, p. 1092.

VI. Of the Remedy, where the Party to whom the Writ of Mandamus is directed, does not make any Return, or where he makes an insufficient, or false Return, p. 1095.

I. Nature of the Writ of Mandamus, p. 1077; Mandamus to restore or admit Persons to Corporate Offices, p. 1078.

THE writ of Mandamus is a prerogative writ, containing a command, in the king's name, and issuing from the Court of King's Bench, directed to persons, corporations, or inferior courts of judicature within the king's dominions, requiring them to do a certain specific act, as being the duty of their office, character, or situation, agreeably to right and justice. This writ affords a proper remedy, in cases where the party has not any other means of compelling a specific performance. The object of the writ is not to supersede legal remedies, but only to supply the defect of them. The only proper ground of the writ is a defect of justice. It is, however, a prerogative writ, and not a writ of right (a), and it is the absence or want of a specific legal remedy, which gives the court jurisdiction (b). There must be a specific legal right (c), as well as the want of a specific legal remedy, in order to found an application for

(a) Per Ashhurst, J., in R. v. Commissioners of Excise, 2 T. R. 385.

(b) Per Ld. Ellenborough, C. J., Bristol Dock Company, M. 52 Geo. III., MS. See also the opinion of Buller, J., in R. v. Marquis of Stafford, 3 T. R. 652.

(c) Per Lord Ellenborough, C. J., in R. v. Archbishop of Canterbury, 8 East, 219. See also Coleridge, J., in R. v. Nottingham Old Water Works Company, 6 A. & E. 372.