Decision under the preceding section. in replevin the defendant avowed taking the goods as a distress for rent in respect of an annuity, and the defendant pleaded "that the said distress was not made within six years after the said annuity or yearly rent first became due," upon which issue was joined; it appeared that the annuity in question was granted to the defendant for his life, and that his right to distrain for it first accrued in 1805, but he neither distrained nor received any part of the annuity until 1835, when he distrained for twenty-nine years' rent; held, that though upon another issue the defendant's title to the annuity was barred by the second section of this act a, he was entitled to a verdict on this issue under the 42d section; for upon this issue there was no objection made to the avowant's right or title to the annuity itself, but simply to the amount of the arrears claimed beyond those of the last six years, and the distress was evidently made within time for the last six years b. To remove some doubts occasioned by the preceding statute, the 7 W. IV. & 1 Vic. enacts, "that a mortgagee may bring an action to recover lands at any time within twenty years after the last payment of principal or interest secured by the mortgage, although more than twenty years may have elapsed since the right of action shall have first accrued." debt on SECTION XV. LIMITATION OF ACTIONS UPON SPECIALTIES. Limitation THE 3 & 4 W. IV. c. 42. s. 3. enacts, "that all actions of of action of debt for rent upon an indenture of demise, all actions of covenant specialties, or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and also all actions of debt upon any award where the submission is not by spe &c. See ante, 1276. James v. Salter, 3 Bing. N. C. ventional rents." Per Tindal, C. J., in Paget v. Foley, 2 Bing. N. C. 680. 2 Hodges, 36, post, 1285, where it has been held, that this section does not apply to rent reserved by specialty. cialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages, or sums of money given to the party grieved, by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of parliament, shall be commenced and sued within the time and limitation hereinafter expressed, and not after; that is to say, the said actions of debt for rent upon an indenture of demise, or covenant, or debt upon any bond or other. specialty, actions of debt or scire facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved within two years after the cause of such actions or suits, but not after; and the said other actions within six years after the cause of such actions or suits, but not after; provided that nothing herein contained shall extend to any action given by any statute where the time for bringing such action is or shall be by any statute specially limited," It has been held, that rent reserved by specialty is within the foregoing provision, and that the limitation of the right of action for the recovery thereof is ten years, and not six years, as provided by 3 & 4 W. IV. c. 27. s. 42. a Sec. 4. contains the usual provision in favour of infants, femes covert, persons of unsound mind, and persons, whether plaintiffs or defendants, absent beyond seas. Sec. 5. provides, "that if any acknowledgment shall have been made, either by writing signed by the party liable by virtue of such indenture, specialty, or recognizance, or his agent, or by part payment or part satisfaction on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions to bring his or their action for the money remaining unpaid and so acknowledged to be due within twenty years after such acknowledgment by writing or part payment or part satisfaction as aforesaid, or in case the person or persons entitled to such action shall at the time of such acknowledgment be under such dis Paget v. Foley, 2 Bing. N. C. 679. 2 Scott, 750. 2 Hodges, 32. VOL. II. PP Rent reserved by specialty. Proviso in knowledg ment in writing, or by part payment, case of ac The limitation after ability as aforesaid, or the party making such acknowledgment be, at the time of making the same, beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond seas, as the case may be; and the plaintiff or plaintiffs in any such action on any indenture, specialty, or recognizance, may, by way of replication, state such acknowledgment, and that such action was brought within the time aforesaid, in answer of a plea to this statute." Sec. 6. enacts," that if in any of the said actions judgment be given for the plaintiff, and the same be reversed by error, or or outlawry a verdict pass for the plaintiff, and upon matter alleged in arrest judgment reversed. of judgment the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill, or if in any of the said actions the defendant shall be outlawed, and shall after reverse the outlawry, that in all such cases, the party plaintiff, his executors or administrators, as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after." By sec. 7. no part of the united kingdom of Great Britain and Ireland, nor the Islands of Man, &c., shall be deemed to be beyond the seas within the meaning of this act or of the 21 Jac. I. c. 16. WHEN AN ACTION WILL LIE FOR A MALICIOUS PROSECUTION. Ir a party maliciously and without reasonable and probable cause prosecute or arrest another, he is liable to an action on the case for the injury which the person so prosecuted or arrested may have thereby sustained, in his person by the imprisonment, in his property by the expense, or in his reputation by the scandal. To support such action there must be malice express or implied, and the want of probable cause. The concurrence of both circumstances is indispensably necessary; proof of express malice is not sufficient without evidence of the want of probable cause a. And if there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable." b "The term malice' in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives." c An action on the case lies for maliciously suing out a commission of bankruptcy a. But it must appear that the commission was superseded before the commencement of the action b. A supersedeas, however, is no evidence of the want of probable cause, as it may proceed upon strict legal grounds e. But if it appear that the facts upon which the commission is founded, do not amount to an act of bankruptcy, it will be sufficient to call upon the defendants to prove the affirmative of probable cause. For evidence of the absence of probable cause is, in effect, the evidence of a negative, and very slight evidence of a negative is sufficient to call upon the other party to prove the affirmative, especially where the nature of the affirmation is such as to admit of proof by witnesses, and cannot depend upon matters lying exclusively within the party's own knowledge, as in some cases of criminal prosecution it may do a. An action on the case may be maintained for maliciously causing the plaintiff to be excommunicated in the Ecclesiastical Court. So it lies at the suit of the husband for the expenses incurred in consequence of the malicious prosecution of his wife. So it lies for maliciously obtaining or executing a warrant to search a house for smuggled goods, if none be found there 8. If a magistrate maliciously grants a warrant against another, without any information, upon a supposed charge of felony, the remedy against him is trespass and not case h. But though it may be trespass in the magistrate to grant an illegal warrant, yet an action on the case may be supported against the person who causes and procures such warrant to issue, if it is done maliciously, and without reasonable or probable cause i But to sustain an action against a party for preferring a charge before a magistrate, and procuring him to grant his war |