it) the affidavit made by the defendant, which may be done by producing the original, or an examined copy. He must also prove an examined copy of the writ, and return the warrant of the sheriff, made by virtue of the writ, and the arrest and de*1300 tention under it. The return made by the sheriff is evidence of the fact therein stated. The plaintiff must also give some evidence of malice, and the want of probable cause where the facts are disputed. Proof of an acquittal for want of prosecution, is not even prima facie evidence of malice; nor is abandoning the prosecution evidence of the want of probable cause." There must be some evidence of the want of probable cause, before the defendant can be called upon to justify his conduct, for it must not be presumed that any one has acted illegally; but the jury may infer malice from the want of probable cause.h *1301 In an action by A. for the malicious prosecution by C. of an indictment against A. and B., evidence of the misconduct of C. towards B., after his apprehension, tending to show the bad motives of C., is admissible.i When the plaintiff has made out a prima facie case, the defendant may rebut it by giving evidence of probable cause, or of the absence of malice. In one case it was held, that the defendant might give evidence of the plaintiff's bad character.j But in a subsequent case, such evidence was rejected, as it could afford no proof of probable cause. Where a cause had been referred, and the arbitrator, upon the inspection of the plaintiff's books and examination of the parties, found that the plaintiff had no cause of action; in an action for malicious prosecution, it was held, that the arbitrator could not be called as a witness to prove those facts, as he had access to documents which the defendant could not be compelled to produce.1 The plaintiff should give evidence of the length of his imprisonment, the prejudice to his reputation by the scandal, or the expenses incurred in consequence of the prosecution or arrest, as the foundation of the damages to which he is en B. N. P. 14. Casburn v. Reed, 2 Moore, 60. (4 Eng. C. L. 404.) Webb v. Herne, 1 B. & P. 289. b 2 Stark Ev. 497. B. N. P. 234. с Gyfford v. Woodgate, 11 East, 297. Where the sheriff's return stated a detainer only, Mr. Justice Littledale held it to be sufficient evidence of an arrest. Whalley r. Pepper, 7 C. & P. 510. (32 Eng. C. L.) To constitute an arrest, there must be a corporeal touch, or a capacity in the officer to arrest, and submission by the party. B. N. P. 62. Arrowsmith v. Le Mesurier, 2 N. R. 211. See ante, 1290. See ante, 1290. 'Incledon v. Berry, 1 Camp. 203. Purcell v. Macnamara, 9 East, 361. Per Tindal, C. J., in Willans v. Taylor, 6 Bing. 187. (19 Eng. C. L. 47.) Rodriguez v. Tadmire, 2 Esp. 721. Newsam v. Carr, 2 Stark. 70. (3 Eng. C. L. 249.) I Habershon v. Troby, 3 Esp. 38. titled. But he cannot recover damages for imprisonment after goal delivery, as it is his own fault to continue in prison. In an action for a malicious arrest, the plaintiff cannot recover in damages for more than taxed costs, which he has incurred. PARTICULARS OF DEMAND AND SET OFF. d order a de livery of WHEN the declaration does not disclose the particulars of the When the plaintiff's demand, and they are not delivered with the declara- court will tion or notice thereof, the defendant may, by summoning the plaintiff before a judge, obtain an order, before appearance for particua particular of his demands in writing. And so where the lars. defendant pleads a set-off for goods sold, &c., the plaintiff may obtain an order for a delivery of the particulars by the defendant. The court will not compel a plaintiff suing for the breach of an agreement, and assigning, by way of special damage, that he has incurred certain expenses, to furnish particulars of such special damage. By R. T. T. 1 W. IV, reg. 2, it is ordered, that "with every declaration, if delivered, or with the notice of declaration, if filed, containing counts in indebitatus assumpsit or debt on simple contract, the plaintiff shall deliver full particulars of his demand under these counts, where such particulars can be comprised within three folios; and where the same cannot be comprised in three folios, he shall deliver such a statement of the nature of his claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios; and to secure the delivery of particulars in all such cases, it is further ordered, that if any declaration or notice shall be delivered without such particulars or such statement as aforesaid, and a judge shall afterwards order a delivery of particulars, the plaintiff shall not be allowed any costs in respect of any summons for the purpose of obtaining such order, or of the particulars he may afterwards deliver."s Sinclair v. Eldred, 4 Taunt. 7. Webber v. Nicholas, R. & M. 419. (21 Eng. C. L. 479.) See Jenkins v. Biddulph, 4 Bing. 160. (13 Eng. C. L. 389.) Lord Ellenborough held, that the plaintiff was entitled to his costs as between attorney and client. Sandback v. Thomas, 1 Stark. 306. & R. H. T. 2, W. IV, reg. 1, s. 47. Tidd's Prac. 9th ed. 596. New Prac. 304. It is no objection to the use of particulars of set off, that they are pleaded in a different court from that in which the action is brought, if they have not been delivered pursuant to a judge's order. Lewis v. Hilton, 5 Dowl. 267. Retallick v. Hawkes, 1 Mees. & Wels. 573. 8 R. T. T. 1 W. IV, reg. 2. This rule is not imperative on the plaintiff to deliver particulars, or a statement of his demand with the declaration or notice thereof, though if he omit to do so, he will not be allowed for them in costs, if afterwards called for and delivered. Tidd, N. P. 302. A copy of A copy of the pariculars of the plaintiff's demand, and of the parti- the defendant's set off, if any, should be annexed to the record culars at the time it is entered with the judge's marshal. And when annexed to a copy of the particulars of demand is so appended, it is not the record. necessary to prove the delivery of it to the defendant." should be Effect of a misstate ment in the particulars. A particular of demand is only necessary to explain a common count; the defendant therefore is not entitled to particulars on a count for a bill of exchange, or on a special count. And if any such count be contained in the same declaration with a common count, the delivery of particulars on the latter only will not preclude the plaintiff from recovering on the former. The bill of particulars should contain an account of the items of the demand, and specify the transaction upon which the claim arose. If, however, it conveys to the defendant the requisite information, however inaccurately it may be drawn up, it is sufficient. A variance or mistake which is not calculated to mislead the defendant, will not prevent the plaintiff from recovering. Thus, a mistake in the statement of the day of the month on which the work and labor, which was the subject of the action, was performed, has been held to be immaterial.s So a mis-statement of the situation of the premises, in debt for rent. So disbursements by the plaintiff on journeys made by him upon the defendant's business, have been held to be recoverable under particulars "for cash advanced." So where the particulars were for "chalk," and the evidence was of "caulk." So where the particulars were "for composing and printing a newspaper," and the proof was, that the plaintif had "let out men, presses, and type for the printing of a newspaper," it was held sufficient, no objection having been taken to the variance at the trial. So where the particulars described the plaintiffs as "brewers," and it appeared that they were "spirit dealers," it was held to be an immaterial variance! Though the particulars are merely for "a promissory note," the plaintiff may recover interest.m But where the particulars stated that the action was "for the amount of stakes deposited in the hands of the defendant by plaintiff and R., and won by the plaintiff of R."; it was held, a Id. Tidd's N. Prac. 304. b Macarthy v. Smith, 8 Bing. 145. (21 Eng. C. L. 253.) e Brooks v. Farrow, 3 Bing. N. C. 291. (32 Eng. C. L.) Day v. Davies, 5 C. & P. 340. (24 Eng. C. L. 350.) Stannard v. Ullithorne, 3 B. N. C. 326. (32 Eng. C. L.) Cooper v. Amos, 2 C. & P. 267. P. 340. (24 Eng. C. L. 350.) Day v. Bower, 1 Camp. 69, n. Davies v. Edwards, 3 M. & S. 380. (12 Eng. C. L. 124.) Day v. Davies, 5 C. & Milwood v. Walter, 2 Taunt. 224. Harrison v. Wood, 8 Bing. 371. (21 Eng. C. L. 323.) See Fisher v. Wainwright, 1 M. & Wels. 480. Spencer v. Bates, 1 Gale, 108. Bagster v. Robinson, 9 Bing 77. (23 Eng. C. L. 270.) 1 Lambirth v. Roff, 8 Bing. 411. (21 Eng. C. L. 338.) m Blake v. Lawrence, 4 Esp. 147. that the plaintiff could not recover the amount of his own stake, on proof that he had re-demanded it of the defendant before the event; for the particular was calculated to mislead, it might have induced the defendant to bring witnesses to show that the plaintiff had lost the wager. So where the particulars specified the demand to be for a promissory note which, for want of a stamp, could not be received in evidence, it was held, that the plaintiff was precluded from giving evidence of the consideration for the note. So where the particulars stated the demand to be, for goods sold to the defendant, it was held that the plaintiff could not give evidence of goods sold and delivered by the defendant as agent for the plaintiff. So a particular for "a beast sold and delivered, 13/. 10s.," is not supported by evidence that the defendant admitted to a third person that he owed the plaintiff 137. 10s.d C If a bill of particulars specifies the transaction upon which the plaintiff's claim arises, it need not specify the technical description of the right which results to the plaintiff out of that transaction. Therefore, in an action by a carrier, who had misdelivered goods to the defendant, the amount of which he was obliged to pay to the real owner; it was held that he might recover on a count for money had; though his particular was for "17 firkins of butter, 55l. 6s." "e If a plaintiff deliver one particular under an order, and afterwards a second without an order, he cannot give evidence of any demand in the second, which was not included in the first.f But he may recover a demand in his particular, although he may have omitted to include such demand in a bill previously sent to the defendant.g Where a judge's order directed a defendant to give particulars of his set off with dates, and the only dates in the particulars delivered in obedience to the order, were "from January 1828, to January 1834," Tindal, C. J., held, that it was not a sufficient compliance with the order, and would not permit the defendant to give evidence of his set off." It is a general rule, that the plaintiff is bound by the parti- The plainculars of his demand; but, although he is precluded from giving tiff is bound by evidence of any demand not contained in his particulars, yet he his partimay take advantage of any evidence produced by the defend- culars. ant to increase his demand; as where the plaintiff, in an action against his partner, confined his particular to a separate account, and the defendant gave in evidence a general account, from which it appeared that more was due to the plaintiff than he claimed by his particular; held, that the plaintiff was entitled to recover the sum which by the defendant's evidence appeared to a Davenport v. Davis, 1 Mees. & Wels. 570. 2 Gale, 119. Holland v. Hopkins, 2 B. & P. 243. (28 Eng. C. L. 125.) Brown v. Watts, 1 Taunt. 353. Swain v. Roberts, 1 M. & Rob. 452. state the precise sum due. be due to him. Where the particular contained items, as due from the defendant and his partner, who was not sued, and the defendant pleaded the non-joinder in abatement; it was held, that the plea was sustained by the particulars, by which the plaintiff was bound, though it appeared at the trial that part of the demand was due from the defendant alone.b The plain- The plaintiff should state in his particulars the precise sum tiff should which he seeks to recover; if there has been an account between the parties, he should state the balance, and not the amount on the debtor side only. But he need not specify the sums received by him on account, it is sufficient if he states the balance. But though the rule requires a statement of the *balance, it seems that the court cannot compel the plaintiff to give credit for sums received, so as to enable the defendant to pay the balance into court. Quare admitted by the particulars can be given in evidence in bar of the action, without it? Where the plaintiff, in his bill of particulars, gives credit for Whether a sums received on account, a difference of opinion prevails, payment whether it should be considered as evidence of payment only, or whether it should have the same operation as a plea of payment not traversed, or in other words, whether the defendant can avail himself of the admission in the particulars, in bar of the action, without pleading payment of the sum admitted. In Coates v. Stevens, Parke B., expressed a strong opinion, that there was no necessity to plead payment of a sum which was admitted by the particulars. But where, in an action of debt, pleading the plaintiff's particulars were as follows: "For a cart 57., deduct paid by B. 11. 13s., balance 31. 7s.," and the defendant pleaded, "except as to 31. 7s., nunquam indebitatus, and a payment of 31. 7s. into court;" at the trial he proposed to prove the payment of 17. 13s.; but Tindal, C. J., refused to receive the evidence, as there was no plea of payment, and the plaintiff had a verdict with nominal damages; on a motion for a new trial, on the ground that the admission in the particular precluded the necessity of pleading it, the dictum of Parke, B., as above was cited. "Coates v. Stevens," said Tindal, C. J., "was an action of assumpsit, which was very different. Here you say you were never indebted to the plaintiff. Strong as the admission in the particulars is, it is no more than evidence of payment; but it cannot be set up in bar of the action." "The plea of nunquam indebitatus," said Bosanquet, J., a Hurst v. Watkis, 1 Camp. 68. Colson v. Selby, 1 Esp. 151. Adlington v. Appleton, 2 Camp. 410. R. T. T. 1 W. IV, ante. "The case of Adlington v. Appleton, has been misunderstood, it is supposed to be a decision that the plaintiff must give the items in reduction of his demand, that is not so, he must state the balance, but he need not show how the balance is made up." Per Patteson, J., 1 H. & W. 528, infra. Smith v. Eldridge, 6 N. & M. 408. 1 H. & W. 527. But see Mitchell v. Wright, 1 Esp. 280. Penprasse v. Crease, 1 M. & Wels. 36. Randall v. Ikey, 4 Dowl. 682. 12 C. M. & R. 118. S. C. but not S. P. 1 Gale, 75. |