servant, provided the act be subsequently ratified by the master.1 § 26. Liability of partners - In an action against two, what concurrence will render both liable. One person cannot be made liable in damages because he knows that another person is about to commit an unlawful act, even though he fails to protest against it, and therefore, in the ordinary use of language, may be said to have consented to it. So, when one of two partners was about to commence a prosecution against a party, upon a charge of having stolen the money of the firm, the mere "knowledge and consent" of the other partner that he should have the person accused arrested would not render the partner so knowing and consenting liable to an action for malicious prosecution at the suit of the person arrested. Something further would be necessary in order to make him liable. It would be necessary that his "consent" should be of so active and positive a character as to amount to advice and co-operation. If he advised the arrest, although he may not have directly caused it, he would be equally responsible with the other partner who was the active prosecutor. But his mere "knowledge and consent" would not render him liable. Although, as a general rule, one partner cannot involve another in a joint liability for a trespass committed by the former, yet an exception exists where the trespass is in the nature of a taking which is for the benefit of the partnership; more especially if the other partner afterwards agrees and consents to the act.3 § 27. Personal representatives. If one of several persons who are jointly interested dies, the remedy for an injury to the joint interest survives to the others, and the personal representatives of the deceased are not to be joined; the rule being that the remedy survives but not the right. When the right of action is joint and several, or several only, in case of death the personal representatives of the deceased may sue, 1 Broom on Parties, 260; Barbour 332 (1885); Barbour on Parties, 228; on Parties, 225. Broom on Par., 249, 250; Petrie v. Lamont, 1 Car. & March., 96; Becknell v. Dosion, 33 Mass., 480. 2 Gilbert v. Emmons, 42 Ill., 143 (1860); Rosenkranz v. Baker, 115 Ill., 332 (1885). 4 Broom on Parties, 212; Rex v. 3 Rosenkranz v. Baker, 115 Ill., Collector of Customs, 2 M. & S., 225. provided the rule actio personalis moritur cum persona does not apply. For a wrong altogether personal, as where one has been injured by false imprisonment or malicious prosecution, no action can be supported, at common law, by his personal representatives, after his death. In such cases the maxim actio personalis moritur cum persona applies.3 § 28. Principal and agent.— A principal is liable to third persons for the torts of his agent committed in the course of his employment, although the principal did not authorize, or justify, or participate in, or indeed know of such misconduct, or even if he forbade or disproved of them; the rule respondeat superior being applicable in these cases.' If the agent commit a tortious act under the direction or with the assent of his principal, either is liable, at the suit of the party injured; for the authority of the principal is no justification of the wrongful act of the agent." An express authority from the principal need not be shown, in order to render him liable for the torts of his agent; pro'vided the act is subsequently ratified by the principal." § 29. Misnomer-The use of wrong names.- Misnomer of one of the parties must be taken advantage of by a plea in abatement. If a corporation or natural person, sued by a wrong name, appears without objection, the misnomer is waived. It is a sufficient answer to a plea of misnomer to say that the defendant is as well known by the one name as the other. The fact that a person is commonly known by the name by which he was sued and arrested in a civil proceeding is distinguished from those cases in which one person has been arrested upon a writ against another person of a different name." Ibid.; Broom's Leg. Max., 400; Barbour on Parties, 176. 23 Bouvier's Inst., § 2751. 3 Broom's Leg. Max., 702; Barbour on Parties, 176. 4 Barbour on Parties, 230; 2 Bouvier's Inst., 33; Story on Agency, 452; Paley on Agency, 294, 301. 5 Barbour on Parties, 230; Broom on Parties, 258; Sands v. Child, 3 Lev., 352; Jones v. Hart, 1 Ld. Ray., 738; Britton v. Cole, 1 Salk., 408. 6 Barbour on Parties, 230. 'Virginia & M. S. N. Co. v. United States, Taney, 418 (1840). 8 O'Shaughnessy v. Baxter, 121 Mass., 515 (1877); Cole v. Hindson, 6 T. R., 234; Finch v. Cocken, 5 Tyrwh., 774, 785; 3 Dowl., 678, 686; Griswold v. Sedgwick, 1 Wend., 126, 132 (1828); Langmaid v. Pieffer, 7 Gray, 378 (1856). CHAPTER XI. PLEADING. 1. Pleading in action for malicious prosecution and false imprisonment. 2. Pleading under codes. 3. Complaint in an action for malicious prosecution. 4. Precedents. 5. Modifications of the common-law system. 6. Statement of the claim defined. 7. The declaration at common law Its form and particular parts. 8. The subject illustrated. - 9. Complaint for the abuse of legal process. 10. A precedent. 11. Special damages. 12. The law stated by Chitty. Illustrations of the rule. (1) Special damages must be specially pleaded-Loss of boarders. (2) Bad condition of prison and food. (3) Insufficient statement. 13. Allegation of special damages - Precedent. 14. Defendant's pleas, answers, etc. 15. Plaintiff's pleadings in actions for false imprisonment. 16. Reasons for the rule. 17. Pleas of justification, etc. 18. Opening and close under pleas of justification. 19. Former recovery - Estoppel. 20. Joint defendants- Pleading separately - A question of policy. § 25. The plaintiff's course after the defendant has answered. 26. Precedents of replications. 27. Concluding remarks. § 1. The pleadings in actions for malicious prosecution and false imprisonment. It is common in the course of every system of judicature to require, on behalf of each of the litigating parties, before proceeding with the cause, a statement of his case. In the forensic language of the courts these statements are called "the pleadings." The term defined: A pleading is the statement in a logical and legal form of the facts which constitute the plaintiff's cause of action or the defendant's ground of defense.1 Regular pleadings: (1) The declaration or complaint. (2) The pleas or answer. (3) The replication. § 2. Pleading under codes. It would appear from an examination of many of the earlier cases in the state of New York that the contest was, in many instances, merely a contest of pleaders. The real matters in litigation appear to have become insignificant in comparison to the manner of stating them in the pleadings. As a result of this condition of things the legislature of that state attempted to sweep away the whole system of common-law pleading by a statutory enactment providing that "All the forms of pleading heretofore existing are abolished, and hereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act." The act commonly called the "code of procedure" provided that the first pleading on the part of the plaintiff, "the complaint," should contain - "1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. 3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated." The pleading on the part of the defendant. The answer must 1 Bouvier's Law Dictionary, 343. 2 N. Y. Code of Procedure. contain "1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition." § 3. Complaint in an action for malicious prosecution.To support this action it must be alleged (1) that a prosecution was commenced against the plaintiff; (2) that it was instituted or instigated by the defendant; (3) that it was malicious; (4) that it was without probable cause; and (5) that it has been legally and finally terminated in the plaintiff's favor.1 84. Precedents. (1) Title, etc. (1) COMPLAINT FOR MALICIOUS PROSECUTION. The plaintiff complains of the defendant, and alleges: That on or about the named appeared before day of -- day of, A. D. - -, the defendant above -, a justice of the peace of the town of —, A. D. -, at in the county of —, at his office in said town, and then and there made a complaint against the plaintiff herein, charging the plaintiff with having on the in the county and state aforesaid, committed the crime of petit larceny by stealing from the defendant's place of business at —, aforesaid, a certain harness, the property of the defendant, of the value of $5. That upon said complaint the justice issued his warrant for the arrest of this plaintiff, and that upon said warrant this plaintiff was arrested by a constable of said town and taken before said magistrate, and was then arraigned and held to bail for his further appearance before said magistrate on the day of A. D. —. That on the said day of A. D. —, the plaintiff appeared before the said magistrate, then holding a court of special sessions, and was then and there by said court tried for the offense of petit larceny charged in said complaint. That the defendant herein attended said trial with counsel and conducted the prosecution of this plaintiff thereon, and that o said trial this plaintiff was found not guilty of the offense charged, and said criminal proceeding was then and there finally terminated by the acquittal and discharge of the plaintiff herein. That the said charge of larceny was wholly false and unfounded; that the defendant herein made 1 Wheeler v. Nesbitt, 65 U. S. (24 How.), 544 (1860); Miller v. Miligan, 48 Barb. (N. Y.). 30 (1866); Farnum v. Freley, 56 N. Y., 451 (1874); Vin wal v. Care, 18 W. Va., 1 (1881); Baylies' Code of Pleading and Forms, 155 (1891). |