Gadd v Bennett
| Jurisdiction | England & Wales |
| Judgment Date | 17 April 1818 |
| Date | 17 April 1818 |
| Court | Exchequer |
English Reports Citation: 146 E.R. 688
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
[540] G-ADD v. bhnnett. 17th April 18IS.-The declaration in an action for maliciously causing a writ to bo sued out, whereon plaintiff was imprisoned, stating the process with the ac etiam clause, as sued out for 501. (instead of 301. according to the fact, and an endorsement for 151. the warrant being for .'{()!. it is a fatal variance.-An averment, that the defendant had voluntarily permitted his bill to he discontinued, for want of prosecution thereof, with a conclusion to the record, is not proved by shewing that thurc had been actually a rule to discontinue, regularly taken out: the, record having been averred, it must be proved.-Had the allegation of the discontinuance been general, it would have heeii sufficiently proved by the rule to discontinue, and evidence of the payment of costs. This was an action for a malicious arrest and imprisonment. The declaration stated that the defendant sued out a bill of Middlesex against the plaintiff', whereby the sheriff' was commanded to take the plaintiff, &c. to answer the defendant of a plea of trespass, and also to a bill of the said defendant against the said plaintiff, for 501. upon promises, according, &c. averring that said defendant, contriving, &c. falsely and maliciously caused the said writ to be endorsed for bail for 1.51. and upwards, and thereupon caused the plaintiff' to be arrested, and imprisoned, and detained, &c. for seventeen days, and that defendant had no probable cause of action to the amount of 151.; that proceedings were thereupon had in the suit; and that afterwards, &c. the defendant did not prosecute bis said bill against the said plaintiff with effect, but voluntarily ponnitted his said bill to be discontinued for want of prosecution thereof; and thereupon it was then and there considered by the said Court that the said defendant should take nothing by his bill, as by the record and proceeding thereon, still remaining, &c. appeared, whereupon and whereby the said suit then and there became and was wholly ended and determined. [541] The cause was tried before the Lord Chief Baron, at the Sittings in Easter Term last, when a verdict was found for the plaintiff. Two objections were made in the course of the trial, 1st, that the declaration was not supported by the evidence, as it had, in setting forth the ac etiam part of the bill of Middlesex, shewn that it was for 501. upon...
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