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MALICIOUS
PROSECE-

TION.

MALICIOUS PROSECUTION.

An action on the case lies against any person who malíWhen it lies. ciously and without probable cause, prosecutes another, whereby the party prosecuted sustains an injury, either in person, property, or reputation.

Malice and

want of pro

essential, and

the plaintiff.

The grounds of the action are the malice of the defendant bable cause either express or implied want of probable cause57 and an inalso injury to jury sustained by the plaintiff by reason of the malicious prosecution, either in his person by imprisonment, his reputation by the scandal,58 or in his property by the expense.59 If the plaintiff cannot prove any such injury, he cannot maintain the action.60

Malicious arrest.

By analogy to the action for malicious prosecution,61 an action may be maintained for maliciously arresting, or holding a party to bail, either where there is not any debt due, or where the party is held to bail for a larger sum than is really due.62 In the action for malicious prosecution, it must be tion must be alleged and proved that the prosecution, and in the action for malicious arrest, that the first action, has been determined ;6 and malice must be alleged and proved in the action for a malicious arrest.64

First prosecution or ac

ended.

60 5 Taunt. Rep. 187. Selw. N.

56 9 East's Rep. 361. 362. n.
Ld. Raym. Rep. 381. Bul. N. P. P. 808.
14. Willes. Rep. 520. Str. Rep.
691.

57 1 Wend. Rep. 140. 345. 2 Ib.
424. 4 Bur. Rep. 1794. 1974. 1
Gows. Rep. 20. Selw. N. P. 808.
n. 1 Term. Rep. 545. Cro. Eliz.
900.

53 4 Term Rep. 48. 1 Sid. Rep. 15. Yelv. Rep. 46. Salk. Rep. 14. 59 Ld. Raym. Rep. 378. Salk. Rep. 15. 1 Wend .Rep. 345. Sty. Rep. 379. Str. Rep. 977. Cro. Jac. 490. 10 Mod. Rep. 148. 214. 6 Mod. Rep. 25. 73. 137.

61 2 Wils. Rep. 305. Sal. Rep. 13. 1 Bos. & Pul. 205. 1 Saund. Rep. 228. 1 Sid. Rep. 424. Bul. N. P. 12.

62 Hob. Rep. 266. 205. Ld. Raym. Rep. 380.

63 Gilb. Rep. 163. 9 Co. Rep. 56. b. Doug. Rep. 205. 10 Mod. Rep. 209. 2 Term Rep. 231. 1 Str. Rep. 114. 2 Hob. Rep. 267. 1 Esp. Rep. 80. 3 Campb. Rep. 58.

64 4 Taunt. Rep. 7. 2 Bos. & Pul. 129. 1 Bos. & Pul. 388.

PROSECU-
TION.

Public officers when liable.

Where public officers commence prosecutions on false MALICIOUS information they are not liable, but the person giving the information :65 but where the officer prosecutes without information, he is liable, 66 and if, in such a case, he be the magistrate granting the warrant, and the gravamen is the arrest under it, trespass lies. It would appear that no civil action lies against judges of record, jurors, grand jurors, &c., for even malicious acts done in the exercise of their judicial powers.

67

SECTION II.

OF SUITS RELATING TO REAL PROPERTY.

made by sta

It may be remarked generally, of this class of actions, that Alterations much more important alterations have been made in them by tute. the revised statutes than in personal actions. Such parts of the proceedings in them as were inconvenient and perplexing have been discarded, and they have been assimilated to personal actions, as far as the difference in their natures and objects would admit.

68

Besides the various particular modifications which produce this desirable uniformity, it is provided generally, that “the practice in actions relating to real estate shall be the same in Practic to all respects as in personal actions, except where otherwise spe- in personal cially provided by law; and rules to plead, reply, and answer,

be like that

actions.

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34

EJECTMENT.

Real actions abolished.

may be entered and may be enlarged, and proceedings may be stayed, in the like cases. And all the provisions of law respecting pleadings, process, records and judgments, in personal actions, shall, so far as may be, apply to actions relating to real estate."

That clause of the statutes which abolishes real actions, is as follows: "All writs of right, writs of dower, writs of entry, and writs of assize, all fines and common recoveries, and all other real actions known to the common law, not enumerated and retained in this chapter; and all writs and other process heretofore used in real actions, which are not specially retained in this chapter, shall be, and they are, hereby abolished."69

EJECTMENT.

EJECTMENT.

Το

The action of ejectment, which has long been, with rare exceptions, the only action in use for the recovery of real Its origin. property, is derived from the ancient action of ejectio firmæ, which was in its nature an action of trespass in favour of a lessee for years, and in which, originally, damages only, but afterwards the term itself was allowed to be recovered. adapt it to its object as an effectual remedy for the trial of title and recovery of the possession of lands, the courts, unwilling abruptly to change the modes of proceeding, however inapplicable or inconvenient, chose rather to get rid of them by allowing fictitious parties and other fictions to be introduced, which were, however, always conducive to justice. In this way the action of ejectment became quite anomalous in its proceedings. The revised statutes, while they have retained it as a remedy in all cases in which it was before used as a possessory action, and have substituted it in the place of the writ of right and writ of dower, have abolished its unnecessary peculiarities and fictions.

Its fictions abolished.

69 2 R. St. 343. P. 3. Ch. 5. T. 7. s. 24.

In the cases

and

The statutes declare, that "the action of ejectment is re- EJECTMENT. tained and may be brought in the cases and in the manner When it lies. heretofore accustomed, subject to the provisions hereinafter con- accustomed, tained. It may also be brought, 1. In the same cases in which a writ of right may now be brought by law, to recover lands, tenements or hereditaments; and by any person claim- in place of ing an estate therein, in fee or for life, either as heir devisee or purchaser 2. By any widow entitled to dower, or by a woman so entitled and her husband, after the expiration of six months from the time her right accrued, to recover her dower, of any lands, tenements or hereditaments."70

writ of right,

or writ of dower.

as to right of

ordinary ca

tered,

The provisions of the revised statutes, as far as they affect Rules of law the ordinary action of ejectment for the trial of title, relate al- recovery in most entirely to the mode of proceeding in the action, and do ses not alnot alter the rules of law respecting the right of recovery. There is no longer a lessor of the plaintiff, but all the provisions of law concerning lessors of the plaintiff apply to the real claimant, who is the plaintiff." The general issue of not guilty, is varied in its language so as to suit the new form of declaration; but under this plea, the defendant may give the same matter in evidence, and the same proceedings are to be had, as upon the plea of not guilty in the present action of ejectment, except as is otherwise provided by the statute. And it is provided that, under the general issue, the defendant nor as to may give in evidence any matter, which, if pleaded in the pre- defence. sent writ of right or action of dower, would bar the action of the plaintiff.75

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matters of

plaintiff to

The plaintiff is not required to prove an actual entry under sufficient for title, nor the actual receipt of profits; but it is declared to be show a right sufficient for him to show a right to the possession when the sion, &c. commenced, as heir, devisee, purchaser or otherwise.74

suit was

of posses

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EJECTMENT. And it is also declared that no person can recover in ejectment unless he has, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession, or the possession of some share, interest or portion of such premises.75 If the action be by a joint tenant or tenant in common against his co-tenant, the plaintiff must show that the defendant actually ousted him, or did some other act amounting to a total denial of his right as co-tenant.76

Between joint tenants ous

ter, &c. necessary.

Ejectment

will not lie

sion cannot

By the common law, ejectment will not die for any thing when posses- whereon an entry cannot be made, or of which the sheriff canbe delivered not deliver possession; or in other words, it is only maintainarecovered.ble for corporeal hereditaments." Thus, the grant of a privi

of the thing

Ejectment lies

for a

lege to erect a machine and building on land without defining the place where they are to be erected, or the quantity of ground which is to be occupied, does not, without actual entry or location, confer such a right as to support ejectment.78 But if a grantor reserve the right of erecting a mill-dam for a certain distance on a creek, "and to occupy and possess the premises" without hindrance or molestation from the grantee or his heirs, he has such an interest in the land reserved as will support ejectment.79 Ejectment, however, will not lie for a water course, or rivulet, though its name be mentioned, because it is impossible to give execution of a thing which is transient, and always running; but when the ground over which the rivulet runs is the property of the claimant, the rivulet may be recovered by laying the action for "so many acres of land covered with water.' 9980

The owner of the soil may maintain ejectment for land highway by which is part of a public highway; because, though the public have a right to pass over it, yet the freehold and all the

the owner of the soil,

75 2 R. St. 303. s. 3.

76 Ib. s. 27.

77 Adams' Ejectment 16.

78 16 John. Rep. 184.
799 John. Rep. 298.

80 Yelv. Rep. 143.

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