Henry St. George Tucker.

Commentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 2) online

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Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 2) → online text (page 15 of 95)
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pubiisii iIjc speeches oi couiistl coniaiuiug f ;vcre siriclurcs without the evidence jjiveu in liiecause.


3. The clause of the statute of limitations wliich limits actions of slander-
to one year, does not apply to an action for a libel, which may be brought,
therefore, within five years after the publication of the libel. Chitty's note»
See 2 Saun. 63, b.

The original composition of a libel is actionable, but not the transcribing
without publication. So without having been the author or original writer,
to publish it by printing, or handing over to others, or even by repeating or
singing it, are held to be actionable, for they amount to pul)lication. Wri-
ting a libellous letter to the person libelled is a publication, and actionable.

Proof of the sale of a libel in a shop, is sufiicient to convict the owner
of the shop of publication. 5 Bur. SGST.

" What was said with regards to words spoken, will also hold mainly with
regard to libels by writing or printing, and the civil actions consequent
thereupon : but as to signs or pictures, it seems necessary always to shew,
by proper inuendos and averments of the defendant's meaning, the import
and application of the scandal, otherwise it cannot appear that such libel
by picture was understood to be levelled at the plaintiff, or that it was at-
tended with any actionable consequences.

" A third way of destroying or injuring a man's reputation is by prefer-
ring malicious indictments or prosecutions against him ; which, under the
mask of justice and public spirit, are sometimes made the engines of pri-
vate spite and enmity. For this, however, the law has given a very adequate
remedy in damages, either by an action of conspiracy, which cannot be
brought but against two at the least ; or which is the more usual way, by a
special action on the case for a false and malicious prosecution."

There are various distinctions on this subject to which it is necessary to
advert. 1. An indictment for a conspiracy, lies, though nothing hath been-
put in execution. An action for a conspiracy only lies where the party has
been actually proceeded against, and legiiimo modo acquietatus, that is, hy
verdict. 1 Saund. 230. 2T. 11.231. Again, an action for a conspiracy-
can only be maintained against several, whereas an action on the case in
the nature of a conspiracy may be brought against one person only, or if
brought against several, and only one is proved guilty, the plaintiff may
have judgment against him. 1 Saun. 230, a. So an action for a conspira-
cy lies only where the conspiracy was to indict the party of treason or fe-
lony, but an action on the case in the nature of a conspiracy will lie for ma-
liciously suing the plaintiff, and maliciously holding him to bail. 1 Saun.
228, 229. And though the words "per conspirationem per eos habitam"
be used in the declaration, it is not necessarily an action of conspiracy, but
may be merely an action on the case in the nature of a conspiracy. 1
Saun. 230.

Ah action for a malicious prosecution, which is the most usual, partakes
of the character of an action on the case in the nature of a conspiracy.*
It does not lie, indeed, against a plaintiff who brings a civil suit, though he
proves to have no sufficient ground of action, because every person oughtto
be permitted to assert his claims in a court of justice, and if he fails in them,
the responsibility for costs is a sufficient punishment. See 1 B. & P. 205.
But when he maliciously sues, and has no probable ground of action what-
ever; 3 Call, 451. 4 Barn. & Cres. 21. 3 Barn. & Cres. 139; or sues for
a greater sum than is due, and holds the party to excessive bail, he is lia-
ble to the action of the party grieved ; 2 Esp. 524. 1 Saun. 228; but in
this case, it would seem that excessive bail being required is essential to
create the right of action. Ibid. So though a debt be really due to A, yet
if B without authority maliciously sues out a writ against C, the debtor, he

* In this action four things must concur ; falsehood in the charge, want of probable cause, malice,
aa.l damage to the plaintiflf. GilU. L. &. E. 135. 12 Mod, SOS, 1 T. K. 493.


is liable to an action. In these cases, however, of actions brought on the
ground of a civil suit having been improperly brought, some damage to the
party ought to appear, and the former suit should be determined. 2 Esp.
627. "2 T. R. 2:32.

The usual action for malicious prosecution, is for maliciously preferring
indictments, presentments, or informations against any one, whether they
are of a nature to injure his fame, to jeopardize his life, or put him to ex-
pense in defending himself or his wife. 2 Str. 977. 2 Esp. 520. Here,
although it must appear that the prosecution is at an end, and that the de-
fendant is discharged, yet it is immaterial whether it be by verdict of the
jury, (2 Str. 1G9J,) by defect in the indictment, (4 T. R. 218. 5 B. & A.
634,) or by the grand jury not finding the bill of indictment. 2 Term
Rep. 232.

In all cases, however, malice and want of probable cause must be prov-
ed. Both must concur. 4 Bur. 1974. 1 T. R. 5 14. 3 Call, 451. The
proof, indeed, that there was no probable cause, is of itself sufficient to
justify the implying of malice. But however decisive the proof of malice,
it cannot thence be inferred that there was no probable cause.* The want
of probable cause must therefore appear. What is probable cause has al-
ways in England been decided by the court, and not left to the jury. I T.
R. 520. It is there said to be a mixed question, indeed, of law and fact ;
but that the question, whether supposing the facts to be true, they amount
to probable cause, is a question of law. 1 T. R. 520, 534. 2 Bar. & C. 693.
1 Gow. 20. It is uncertain how far these decisions are altered by the case
of Crabtrce vs. Hester. 4 Mun. 59. I incline to think that it is not intend-
ed by that case to deny the right of the court to pronounce whether cer-
tain facts, if satisfactorily proved, amount to probable cause, but the deci-
sion of the inferior tribunal was reversed because it had taken upon it to
decide what weight should have been given to the evidence, which matter
belongs to the jury.

The action for malicious prosecution is the proper action for illegally su-
ing out an attachment. 6 Mun. 1 18. And the declaration should aver both
malice and want of probable cause. Gilm. 9. It lies also for maliciously
obtaining or executing a search warrant for stolen or smuggled goods. 1
T. R. 535. But it seems that it does not lie for a prosecution before a na-
val (or military) court martial, by a superior against an inferior officer, for an
offence cognizable by it. See 1 T. 11. 550, where the reasons for this opi-
nion are given at large. The judgment in this case was affirmed in the
house of lords. 1 T, R. 784.

0/ the pleadings. As to the declaration. It should appear from the
declaration that the prosecution is at an end. 2 T. R. 225. And it should
aver that it was instituted w'ahi)Ut probable cause. Neither the words "just
cause," or "justifiable cause," are e(iuivalent, and still less the allegation
that the prosecution was false and malicious. 3 Call, 3, 446. 2 Mun. 10.
But both these defects are now cured by a verdict. See 1 R. C. ch. 128,
§ 103.

0/ the plea. It is said that the defendant's plea should show what
grounds of suspicion he had. 2 Esp. 533. But according to the practice,
as I have known it, this is always given in evidence on the general issue of
not guilty ; for the evidence of probable cause goes clearly to show that the
defcMidatit is not guilty.

Of the evidence. In order to maintain his action, the plaintiff must first
prove a prosecution and acquittal or discharge. 1 Bl. R. 385. This can
only be done by a copy of the record of the court before which the trial took
place. In case of misdemeanor the plaintiff is entitled to demand a copy
as matter of right ; Ph. Ev. 321 ; (it is said indeed he need not produce it*


Chitty's note :) but in cases of felony this is not so. It can only legally ht
had by application to the court, and it is usual in England, as Mr. Black-
stone says, to refuse it in cases of felony. Yet where the plaintiff obtains
it and produces it, it is good evidence, though it has been furnished by the
clerk without an order of the court: for such order is not necessary to make
it evidence. 2Str. 1122. 14 E. 305. Hence in Virginia the question ne-
ver arises, as the record is readily obtained from the clerk. The name of
the defendant being endorsed as prosecutor is sufficient evidence to prove
him such. 2 Esp. 535. The record of a foreign court is not indispensa-
bly necessary to prove a prosecution there. 3 Call, 4-16.

The burden of proof lies on the plaintiff. It is not sufficient for him to
show a prosecution and acquittal ; he must show that there was malice by
express evidence, or by proving want of probable cause : 1 T. R. 455, 518.
9 E. 361. 1 Camp. 202 : to which end he may give in evidence what was
proved on the trial of the indictment. 2 Esp. 535. It is not sufficient to
show that the plaintiff was acquitted, the prosecutor not appearing. 9
E. 361.

Failing to countermand a writ after the debt was paid, in consequence of
which the party was arrested, has been held not sufficient evidence of ma-
lice. 1 Bos. & P. 388. 2 Id. 129, sed qusere.*

If the declaration alleges that the plaintiff was lawfully acquitted, it is
not supported by proof of ci nolle prosequi; for that is no final acquittal/
Yet where there is only a nolle prosequi, the action may be maintained, if
the declaration states the fact correctly.

Defendant's evidence. He may offer as evidence of probable cause, what
was sworn by himself or his wife at the trial. He may also prove what oth-
ers swore. If the plaintiff give evidence of malice, the defendant must
then show probable cause. Erroneous advice of counsel is no excuse for"
him.t 5 Taun. 277. 2 B. & C. 693. Or if the plaintiff give evidence of
want of probable cause, the defendant must then show it. If he wishes the
court to pronounce whether there was probable cause or not, he should
bring the matter before it by case agreed, or by moving the court to instruct-
the jury that if the evidence introduced establishes to their satisfaction such
and fmch facts, these facts will amount to probable cause. This I under-
stand to be consistent with 4 Mun. 59, 462.

A magistrate's committing a person accused for felony, or binding him in'
recognizance to answer the charge, is sufficient evidence, if it stands alone,
of probable cause, although the plaintiff was afterwards acquitted, and so-
is a conviction by an inferior court, though reversed. 1 Cam. 202. 9 E. 36L
But he may offer proof to countervail the inference from this fact. 4 Mun.

The ?jerf?zcf of the jury, if for the plaintiff, is for so much in damages, and
damage to the person by imprisonment, to his reputation by tlie scandal,
or to his purse by his expenses, must appear. 5 Taun, 187. 1 Marsh. 12,
9 E. -361. Hence it is said by Mr. Chitty, that since the statute, 4 Ja. I. c.
3, which gives costs to a defendant in all actions in case of a nonsuit or
verdict against the plaintiff, and other statutes giving costs to defendant m
other stages of the cause, it seems that no action can be supported merely
in respect of a civil suit maliciously instituted, except in some cases under
particular legislative provisions, 1 Salk. 14, and therefore no action is sus-
tainable for a vexatious ejectment. 1 B. &, P. 205. To these remarks,

* See 4 Barn. & Cr. 2G. Tlie plainliiT is bound to accept from a defendant, in execution, the del)t
and costri when tendered, and to order his discliarge. Tlie refusal to discharge is prima facie evi-
dence of malice.

_ t It has been decided in a late case lo be a good defence, that the defendant, in arresting; the plain-,
tiff, acted bona fi'de on the advice of counsel, and from a belief tiiat he hml good cause of action. 2-
Barn. & Crcs. 693.

VOL 2—9


however, the maliciously holding a party to excessive bail is an obvious ex-
ception, since the damage to the person by imprisonment in that case is the
ground of action.

II. "We are next to consider the violation of the right of personal liberty.
This is effected by the injury of false imprisonment, for which the law has
not only decreed a punishment, as a heinous public crime, but has also
given a private reparation to the party ; as well by removing the actual con-
finement for the present, as, after it is over, by subjecting the wrongdoer to
d civil action, on account of the damages sustained by the loss of time and

" To constitute the injury of false imprisonment there are two points re-
quisite: 1. The detention of the person: and, 2. The unlawfulness of
such detention. P^very confinement of the person is an imprisonment,
whether it be in a common prison, or in a private house, or in the stocks, or
even by forcibly detaining one in the public streets. (See 1 Esp. N. P.
Rep. 431.) Unlawful, or false, imprisonment consists in such confine-
ment or detention without sufficient authority ; which authority may arise
either from some process from the courts of justice, or from some warrant
from a legal ofliccr having power to commit, under his hand and seal, and
expressing the cause of such commitment ; or from some other special
cause warranted, for the necessity of the thing," either by common law, or
act of the legislature ; such as the arresting of a felon by a private person
without warrant, the seizing and confining a lunatic under the influence of
a fit of madness. Sec.

" False imprisonment, also, may arise by executing a lawful warrant or'
process at an unlawful time, as on a Sunday : for the statute hath declared,
that such service or process shall be void: [except in cases of treason, fe-
lony, or breach of the peace, and cases of escape warrants. Ch. 78, § 19. j
This is the injury. Let us next see the remedy : which is of two sorts ; the
one removing the injury, the other making satisfaction for it.

"The means of removing the actual injury of false imprisonment are, by
sommon law, four-fold. 1. By writ o{' mainprize. 2 By writ dcodio et alia.
3. By writ de homine rcplegiando. 4. By writ of habeas corpus.

1. " The writ of mainprize, manucaptio, is a writ directed to the sheriff
(either generally, when any man is imprisoned for a bailable ofTence, and
bail hath been refused ; or specially, when the offence or cause of commit-
ment is not proj)erly bailable below,) commanding him to take sureties for
the prisoner's appearance, usually called mainpernors, and to set him at large.
Mainpernors dilfcr from bail, in that a man's bail may imprison or surren-
der him up before the stipulated day of appearance; mainpernors can do
neither, but are barely sureties for his appearance at the day : bail are only
sureties, that the party be answerable for the special matter for which they
stipulate; mainpernors are bound to produce him to answer all charges

2. "The writ fie odio et alia, [which I presume is obsolete with us,] was
anciently used to be directed to the sheriff, commanding him to enquire
whether a prisoner charged with murder was committed upon just cause of
suspicion, or merely propter odium et aliam, for hatred and ill-will ; and if
upon the iiKiuisitiou due cause of suspicion did not appear, then there issued
another writ for the sheriff to admit him to bail.

3. " The writ de homine replegiando, [which is annulled by our law 1 R.
C. ch. 1'20, § ].'},] was formerly used, to replevy a man out of prison, or out
of the custody of any i)rivate person, (in the same mimner that chattels taken
in distress may be replevied, of which in the next chapter,) upon giving se-
curity to the sheriff that the man shall be forthcoming to answer any charge
against him.*


4. " The writ of habeas corpus, the most celebrated writ in the English
law. Of this there are various kinds made use of by the courts at West-
minster, for removing prisoners from one court into another for the more
easy administration of justice. Such is the habeas corpus ad respondendum,
when a man hath a cause of action against one who is confined by the pro-
cess of some inferior court; in order to remove the prisoner, and charge
him with this new action in the court above. Such is that ad satisfaciendum,
when a prisoner hath had judgment against him in an action, and the plain-
tiff is desirous to bring him up to some superior court to charge him with
process of execution." But in Virginia the jails of the county and superior
courts, and their sheriffs being the same, the writs of habeas corpus ad res-
pondendum, and ad satisfaciendum, are never used with us. If the person
to be sued is already in jail on a writ from an inferior court, a writ may yet
issue from the superior court in another case, and being handed to the she-
riff becomes instantly executed, and if he were to discharge the defendant,
it would be an escape.

" There are also at common law writs of habeas corpus ad prosequendum
iestificandum, deliberandum, S^c. ; which issue when it is necessary to re-
move a prisoner, in order to prosecute or bear testimony in any court, or to
be tried in the proper jurisdiction wherein the fact was committed." The
habeas corpus ad testificandum is necessary where,, by the return on a sub-
poena, it appears it can have no effect, as where the witness is on shipboard,
or in military service under the command of an officer who refuses to allow
his attendance. This writ then issues directed to him. But it is said the
witness must be willing to attend, and this seems indeed necessary where
he is not a prisoner, for if at large he cannot be brought up as ?i prisoner by
this writ, without his consent. Cow. 67*2. Phil. 12,

In Starkie's Evid. (part 2, 114, in the note,) it is made a quaere whether
the officer may require an indemnity against the v/itness's escape, wiiere he
is in custody by law process. I presume he may ; for this is but a reasona-
ble condition, which the judge may impose on the party praying the writ,
and is even required by our law in the great writ of habeas corpus ad subjici-

In the case of the probate of wills, where the witness is confined by pro-
cess, the law has made some special provisions which render this writ un-
necessary in such cases. Sess. acts, 1822, ch. 27.

The application for the writ must be accompanied by an affidavit of the
materiality of the witness : Cow. 672. Peake's Evid. 192. 2 Stark. Evid.
113 : and will be refused where it appears to be a mere contrivance to re -
move a prisoner in execution. 3 Bur. 1440.

Another species of habeas corpus known to the common law, is " the
common writ ad faciendum et recipiendum, which issues when a person is
sued in some inferior jurisdiction, and is desirous to remove the action into
the superior court ; commanding the inferior judges to produce the body of
the defendant, together with the day and cause of his caption and detain-
er, (whence the writ is frequently denominated an habeas corpus cum cau-
sa,) to do and receive whatsoever the king's court shall consider in that be-
half. This is a writ grantable of common right, without any motion in
court, 2 Mod. 306, and it instantly supersedes all proceedings in the court
below." ^ ^ V a

By our statute, 1 R. C. ch. 69,§43, it is provided, that the superior courts
of law may issue writs of habeas corpus of this description, and that where
any person shall be committed in any civil action to the jail of any county
or corporation, for any cause or matter cognizable in the superior courts,
the clerk of the superior court of the county wherein such commitment
shall be, shall, upon the application of such person, and a certificate of his


£)x her being actually in jail, issue a writ of habeas corpus cum causa, to re-
move the body of such prisoner into the circuit court jail, and the cause of
his commitment into such court, returnable on the tirst day of the succeed-
ing court, if issued in vacation, or on the last of the term, if sued out
whilst the court is sitting.

The habeas corpus ad faciendum et recipiendum, cannot be granted after is-
sue or demurrer joined. When removed, the cause is now directed to stand
in the superior court in the same situation as it did in the inferior court, so
that little delay is now produced by it. Hence, though at one time it was
a good deal used for that purpose, we now seldom hear of it. See 1 R. C.
ch. 69, § 43, 44.

" But the great and efficacious writ, in all manner of illegal confinement,
is that of habeas corpus ad subjiciendum, [passed in the thirty-first year of
Charles II.] directed to the person detaining another, and commanding
J^iim to produce the body of the prisoner, with the day and cause of his
caption and detention, ad faciendum, subjiciendum, et recipiendum, to do,
submit to, and receive whatsoever the judge or court awarding such writ
shall consider in that behalf. This is a high prerogative writ, and therefore by
the common law issuing out of the court of king's bench not only in term-
time, but also during the vacation, by a jiat from the chief justice or any
other of the judges, and running into all parts of the king's dominions : for
the king is at all times entitled to have an account, why the liberty of any
of his subjects is restrained, wherever that restraint may be inflicted. If it
issues in vacation, it is usually returnable before the judge himself who
awarded it, and he proceeds by himself thereon ; unless the term shall in-
tervene, and then it may be returned in court."

Without detaining the student here with the particular provisions of the
English statute, which have been very materially departed from by ours,
but recommending to him, earnestly, Mr. Blackstone's remarks upon the
subject, together with Mr. Chitty's abstract of the adjudications in England,
I shall pass at once to the subject of our own act of assembly, which has
rendered this writ, and the proceedings under it, much more definite and
efficient than they were formerly.

By that act, I 11. C. ch. 120, it is enacted,

Sec. 1. That whenever any person detained in custody, whether charged
with a criminal offence or not, shall, by himself, or by some other person in
his behalf, apjjly to the general court, or any superior court of law, or su-
perior court of cliancery, in this commonwealth, or to any judge thereof,
in vacation, for a writ of habeas corpus ad subjiciendum, and shall shew, by
affidavit or other evidence, probable cause to believe that he is detained ia
custody without lawful authority, it shall be the duty of the court or judge
to whom such aj)plication shall be made, forthwith to grant the writ, signed
by himself, directed to the person in whose custody the applicant is detain-
ed, and returnable, immediately, before such court or judge, or any of the
said courts or judges : Provided, That in all cases where it shall appear
necessary, the court or judge, granting the writ, shall previously require
bond with sufficient security, executed in such manner, and in such reason-
able penalty, as such court or judge shall prescribe, conditioned for the
payment of such charges as may be awarded against the prisoner, and that
he will not escape by the way. Every bond so executed shall be recorded
with the other proceedings, as herein-after provided for, and may be sued
on, in the name of the person to whom it is made payable, fur the benefit
of any person really infercsted therein.

Sec. 2. Whenever any such writ shall be served on the officer or other
person to whom it is directed, or, in his absence from the place where the
prisoner \^^nrtncd, oij the perton having the immediate custody of the



prisoner, it shall be the duty of hira on whom the writ shall be so executed,
without delay, to bring the body of the prisoner, or cause it to be brought,
before the court or judge before whom the writ is .made returnable, or, in
case of the absence of such court or judge, before any of them ; and, at
the same time, to certify the cause of the detainer of such prisoner.

Sec. 5. The court or judge before whom the prisoner shall be brought,
shall, without delay, proceed to enquire into the cause of his imprisonment,
and shall either discharge him, adujit him to bail, or remand him into cus-

Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 2) → online text (page 15 of 95)