plaintiff as the party prosecuted, and of the defendant as the prosecutor. The proper mode of proving the latter fact is to shew that he employed the attorney or agent to conduct the prosecution, or was otherwise active in forwarding it; it has been held, that a grand juror may be called to prove that the defendant was prosecutor a. In an action on the case against a party for causing the arrest of a person privileged from arrest, (e. g. a witness attending on his subpoena, or a practising attorney,) thereby putting him to the expense of finding bail and procuring his discharge by order of a judge; it was held, that the plaintiff should shew that his imprisonment at the particular time in question took place by some act of the defendant, and that he knew or recognized the circumstances accompanying it, and also knew that the party arrested was privileged at that time. It is for the jury to determine from the evidence who the prosecutor was. If the proceeding was by preferring a charge before a magistrate, the magistrate or his clerk should be served with a subpoena duces tecum, to produce the proceedings; the warrant upon which the plaintiff was arrested should also be produced, and the arrest and discharge of the plaintiff regularly proved d.

Where it appeared that the warrant was lost, and there was no evidence of any information having been taken, parol evidence of the contents of the warrant was received e.

In an action for a malicious arrest, the plaintiff should be prepared to prove (unless where the pleadings dispense with 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

tention under it. The return made by the sheriff is evidence of the fact therein stated b. The plaintiff must also give some evidence of malice, and the want of probable cause where the facts are disputed c. 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 f; but the jury may infer malice from the want of probable cause §.

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 h.

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 i. 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.

a 2 Stark. Ev. 497. B. N. P. 234.

b 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 v. Pepper, 7 C. & P. 510. 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.

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 entitled a. But he cannot recover damages for imprisonment after gaol delivery, as it is his own fault to continue in prison b. In an action for a malicious arrest, the plaintiff cannot recover in damages for more than taxed costs, which he has incurred c.

THOUGH points of practice do not strictly fall within the design of this work, yet it is thought expedient to notice, in this place, some of the incidents of trials at nisi prius, and first of hearing counsel.

When the jury are sworn, the junior counsel for the plaintiff opens the pleadings, after which, if the proof of the issue rest upon the plaintiff, his senior or leading counsel states his case to the jury, and after having examined witnesses in support of it, counsel for the defendant are heard, and if they call any witnesses, the plaintiff's counsel are entitled to the general reply. Where there are several issues, some of which are incumbent on the plaintiff and others on the defendant, it is usual for the plaintiff to begin and prove those which are essential to his case, and the defendant then does the same; and afterwards the plaintiff is entitled to go into evidence to controvert the defendant's affirmative proofs; the defendant's counsel is then entitled to a reply upon such evidence in support of his own affirmative, and the plaintiff's counsel to a general reply b.

a

Tidd, N. P. 501.

2 Stark. 521. 1 Stark. Ev. 382.

b Id. 502. Jackson v. Hesketh,

By a general resolution of all the judges, the plaintiff is entitled to begin in cases of slander, libel, and other actions for personal injuries, where the plaintiff seeks to recover actual damages of an unascertained amount, although the affirmative of the issue may, in point of form, be with the defendant ". Therefore, where in an action for false imprisonment there was a plea of justification and no general issue, and a replication de injurić, it was held, that the plaintiff was entitled to begin". So where to an action for a breach of promise of marriage the only plea was that the defendant had, after the promise, conducted herself in a lewd and unchaste manner, &c.; it was held that the plaintiff had a right to begin.

When the plaintiff's counsel is

entitled to begin.

dated da

mages, the party on

whom the

issue lies

has a right

to begin.

But if the plaintiff does not go for unliquidated damages, When the the case does not fall within the above rule, and the party does not go plaintiff on whom the affirmative issue lies has a right to begin. There- for unliquifore, where in an action of debt for a penalty of 50l. for carrying the plaintiff to a prison under mesne process, within twenty-four hours, the defendant pleaded that it was by the affirmative plaintiff's own consent; replication, that the plaintiff did not consent; held, that on these proceedings the defendant should begin, as the plaintiff did not go for unliquidated damages d. And where in covenant to recover damages for the non-performance of an agreement under seal, the defendant pleaded only that the deed was obtained by fraud and covin; it was held, that the affirmative of the issue being upon him, his counsel had a right to begin, "because," said Tindal, C. J.," the damages were not a matter of calculation." e

In considering, however, which party ought to begin, it is not so much the form of the issue which is to be considered as the substance and effect of it; and the judge will consider what is the substantial fact to be made out, and on whom it lies to make it out. Therefore, in an action of covenant for not repairing, &c.,