further prosecuted thereon; whereupon the said Court, having heard and considered all that the said defendant and the people, by the aforesaid District Attorney, could say or allege against the plaintiff touching and concerning the said supposed offense, did then and there adjudge, order, and determine that the plaintiff be discharged out of custody, and be fully discharged and acquitted of the said indictment, and be not further prosecuted thereon. VIII. That the said indictment, complaint, and prosecution, are, and each of them is wholly ended and determined in favor of this plaintiff. IX. [Special damage, if any, as in other cases.] [Demand of Judgment.] 24. Dismissal.-An immediate dismissal by a magistrate of a prosecution when commenced, is, it would seem, prima facie proof of the want of probable cause: Gould v. Sherman, 10 Abb. Pr. 441. 25. Nolle Prosequi.-Entry of nolle prosequi was held insufficient for that purpose: Bacon v. Townsend, 2 C. R. 51; Hall v. Fisher, 20 Barb. 441; Brown v. Lakeman, 12 Cush. (Mass.) 482; 6 Mod. 261; contra, Yocum v. Polly, 1 B. Mon. 358; 6 Blackf. (Ind.) 504. No. 353. V. The Same-Where Judgment of Acquittal was Rendered. [TITLE.] The plaintiff complains, and alleges: I. That on the.......day of........, 187., at........... the defendant caused and procured to be sued out of the ... Court, in and for the County of ......... certain writ of attachment, in a certain action then and there pending, wherein the said A. B. was plaintiff, and the plaintiff herein was defendant, directed to the Sheriff of said county, commanding said Sheriff [here state substance. of the said writ], and delivered the same to the said Sheriff, and caused and required the said Sheriff to levy said writ of attachment on the store of goods, wares and merchandise of the said plaintiff, and took the same into his possession, and the said defendant afterward applied to the said .... Court [or to Hon. C. D., Judge of said Court], and obtained an order from said Court [or Judge] for the sale of said goods and merchandise, and caused said Sheriff to sell the same at a great sacrifice. II. That in so doing the defendant acted maliciously and without probable cause, and unjustly contrived and intended to injure the said plaintiff and break up his business-he, the said plaintiff, then being engaged in the business of a merchant. III. That the said action of the said defendant afterward came on for trial at the .... term of said Court, 187., and was tried, and a verdict and judgment rendered in favor of the said plaintiff, to the damage of the said plaintiff dollars. 26. [Demand of Judgment.] Acquittal Essential.—An action for malicious prosecution cannot be maintained until the plaintiff has been acquitted, or the prosecution is finally terminated in his favor. The determination of the prosecuting officer never to bring the indictment to trial, for the reason that he deems the charge entirely unsupported, is not sufficient: Grant v. Moore, 29 Cal. 644; Thomason v. Demotte, 9 Abb. Pr. 242; 18 How. Pr. 529. The plaintiff's acquittal must be alleged. An allegation that he has been discharged is not sufficient. Morgan v. Hughes, 2 T. R. 225; Bacon v. Townsend, 2 Code R. 51. It is not enough to aver that the prosecuting officer declared the complaint frivolous, and refused to try it: Thomason v. Demotte, 9 Abb. Pr. 242. The rule that the prosecution must have terminated favorably to the plaintiff, does not apply in case of an attachment against his property, sued out in his absence, and which he had no opportunity to defend: Bump v. Betts, 19 Wend. 421. [TITLE.] No. 354. vi. For Malicious Arrest in a Civil Action. 187., the defendplaintiff, made affi .... The plaintiff complains, and alleges: I. That on the......day of ..... ant, maliciously intending to injure the davit, and procured one A. B. to make an affidavit, in an action brought against this plaintiff by in which he alleged [set forth the grounds of the false arrest]; and that upon said affidavits the defendant caused to be issued an order of arrest against this plaintiff, under which the plaintiff was arrested and imprisoned for the space of and compelled to give bail in the sum of .... dollars. II. That in so doing the defendant acted maliciously and without probable cause. III. That on the..... .day of... 187., said order was vacated by said Court, upon the ground that [set forth the grounds on which it was vacated]. [Or, III. That on the....day of......., 187., such pro ceedings were had in such action, that it was finally determined in favor of this plaintiff, and judgment was rendered for him therein.] IV. [Special Damage.] That many persons, whose names are unknown to plaintiff, hearing of the arrest, etc. [as in Form No. 349], to the damage of the plaintiff............... dollars. [Demand of Judgment.] 27. Jurisdiction.-But if a complaint shows that the arrest was without jurisdiction, it may be good as alleging a trespass, without averring a determination in favor of plaintiff: Steel v. Williams, 18 Ind. (Kerr.) 161; Searll v. McCracken, 16 How. Pr. 262. 28. Malice. If one person arrests another for the commission of a crime, under the belief that the person arrested has committed the crime, the person making the arrest cannot be said to act maliciously, although he may act unlawfully: Lyon v. Hancock, 35 Cal. 372. 29. Several Causes of Action United.—An action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person: Cal. Code C. P., sec. 427; as for libel or slander: Watson v. Hazzard, 3 Code R. 218; Martin v. Mattison, 8 Abb. Pr. 3. 30. When Action will Lie.-Where a complaint charged a crime, and the prosecution was instituted before a tribunal having jurisdiction, and a warrant regular upon its face was issued, and the defendant was arrested, an action brought by him for malicious prosecution will be sustained, although the complaint was not signed by the complainant: Chapman v. Dodd, 10 Minn. 350. An action for malicious prosecution will lie against a creditor who effected the arrest and imprisonment of his debtor by alleging that the demand was greater in amount than it truly was, so as to hinder the debtor from getting bail. It is true that in order to sustain an action for malicious prosecution the law requires that the proceedings which form the subject of complaint should have been maliciously instituted, and carried on without any reasonable or probable cause; but there would ordinarily be but little difference in the injury produced to the defendant, whether the unfounded prosecution was carried on without any demand whatever to justify it, or whether it was coupled with a claim of real merit: Phil. on Ev. 261; 3 Barn. & Cress. 139; 7 Eng. Com. Law, 177; 26 Eng. L. and Eq. R. 200; 4 Serg. & R. 19; 13 Id. 54; Brownv. McIntyre, 43 Barb. 344. 31. When Action will not Lie.-An action in a case for malicious prosecution will not lie for causing a person to be arrested on a criminal warrant, charging an act which is not a crime, but merely a trespass, as the warrant was void, and the proper remedy for an arrest on such a warrant is trespass: Kramer v. Lott, 50 Penn. 495; but see Dennis v. Ryan, 63 Barb. 145; Newfield v. Copperman, 47 How. Pr. 87. Bona fide acts of a party, on advice given by counsel, after a full and fair statement of the facts, is evidence of probable cause, however erroneous the advice may be: Richardson v. Virtue, 2 Hun, 208; Eastman v. Keasor, 44 N. H. 514. CHAPTER V. FOR PERSONAL INJURY CAUSED BY NEGLIGENCE. No. 355. i. For Injuries Caused by Collision of Vehicle Driven by Servant. The plaintiff complains, and alleges: I. That on the......day of... ..., 187., the plaintiff was driving along the public highway, in the city of........, in a carriage drawn by one horse. II. That the defendant was then the owner of a wagon and two horses, which were then being driven along said highway, in the possession of defendant [or of defendant's servant]. III. That defendant [or that said servant] so carelessly drove and managed said horses and wagon, that by reason of his negligence said wagon struck the plaintiff's carriage and overthrew the same, and threw the plaintiff out of his carriage upon the ground [or describe the accident], whereby the plaintiff was bruised and wounded, and was for ....days prevented from attending to his business, and was compelled to expend........ dollars for medical attendance and nursing, and... ..dollars for the repair of his said carriage, to his damage........ dollars. [Demand of Judgment.] 1. Carrier's Contract.-Passenger carriers bind themselves to carry safely those whom they take into their coaches or cars, as far as human care and foresight will go; that is, for the utmost care and diligence of very cautious persons: Story on Bailments, sec. 601. The words "care, diligence and foresight," imply a relation to future events: Wheaton v. N. B. and M. R. R. Co., 36 Cal. 590; see Civil Code Cal., sec. 2100-2104, inclusive. 2. Damages. If by the negligent driving of defendant's servant his vehicle runs into another which is driven with due care, and causes the horse of the latter to take fright and run away, and said horse runs into the plaintiff's vehicle and injures him when he is using due care, the damage is not too remote to be recovered: McDonald v. Snelling, 14 All. 290. In a case of simple negligence in which the elements of fraud, malice, or oppression do not enter, only actual damages can be recovered: Moody v. McDonald, 4 Cal. 297; Sedg. on Measure of Dam. 39; Keene v. Lizardi, 8 La. Rep. O. S. 390. In actions of this character, all the circumstances in the case may be taken into consideration in making up the estimate of damages, and the jury are not confined to the actual damages sustained, and where the stage at the time was driven by the servant or agent, the principal is liable only for simple negligence, and exemplary damages cannot be imposed: Citing 3 Wheat. 546; Wardrobe v. Cal. Stage Co., 7 Cal. 120. . The only damage which can be recovered in such actions are such as are commensurate with the injury alleged to have been sustained, or actual damages: Greenl. on Ev. sec. 253; Whittemore v. Cutter, 1 Gall. 438; Bateman v. Goodyear, 12 Conn. 580; Dain v. Wycoff, 3 Seld. 193. 3. Defect of Vehicle. —A carrier of passengers for hire does not warrant that the carriage in which the passenger travels is roadworthy. He is bound to use all vigilance to insure safety, but is not liable for a defect which could not be detected, and which arises from no fault of the manufacture: Readhead v. Midland R. R. Co., L. R. 4 Q. B. 379; 2 Q. B. 412; 2 Am. Law R. 107. 4. Liability for Negligence.-If a child under four years of age is injured by the negligence of third persons in the street of a city traversed constantly by cars and other vehicles, his father cannot recover for loss of service if he has knowingly suffered such child to be in the street unattended: Glassey v. Hestonville R. R. Co., 57 Penn. 172. Otherwise of an action by the child itself, although the negligence of a volunteer undertaking to interfere for the child's benefit contributed to the injury: North Penn. R. R. Co. v. Mahoney, 57 Penn. 187. One who sells gunpowder to a child eight years old, knowing that he is unfit to be trusted with it, is liable if the child, using the care of which he is capable, explodes it, and is burned by the same, and a license to sell gunpowder is no defense: Carter v. Towne, 98 Mass. 576. As to what constitutes negligence, see ante, p. 192, et seq. 5. Master and Servant-General Doctrine.-The general doctrine maintained that the master or employer is responsible for act or omission of servant or employee within scope of his employment or authority: N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Chapman v. N. Y. Cent. R. R. Co., 33 Id. 369; Drew v. Sixth Av. R. R. Co., 26 Id. 49; Lannen v. Albany Gas Light Co., 46 Barb. 264; Carman v. Mayor of N. Y., 14 Abb. Pr. 301; Annett v. Foster, 1 Daly, 502; Meyer v. Second Av. R. R. Co., 8 Bosw. 305; Merrick v. Brainard, 38 Barb. 574; not affected by partial reversal: 34 N. Y. 208. One whose servant negligently throws a keg out of a window, and injures a person passing through a passageway below, is liable, although such person was there only by license: Corriyan v. Union Sugar Refinery, 98 Mass. 577. But the employer held not responsible for willful injury committed by employee: Garvey v. Dung, 30 How. Pr. 315. For injury by negligence, both employer and employee may be sued together: Phelps v. Wait, 30 N. Y. 78. Municipal corporation not liable for negligence of members of its paid fire department: Howard v. San Francisco, 51 Cal. 52. No. 356. ii. Against Common Carriers-For Injuries Caused by Overturning Stage Coach. [TITLE.] The plaintiff complains, and alleges: I. That on the ...... day of ..... 187., the defendant was a common carrier of passengers for hire by stage coach between II. That on that day, as such carrier, he received the and .. |