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736 MICHAELMAS TERM, 10 WILL. 3. IN B. R. 5 MOD. 410.

Car'lion v. Mill (e) the case was, that the defendant, being apparitor under the Bishop
of Exeter, maliciously, and without colour or cause of suspicion of incontinency, of his
own proper malice, procured the plaintiff, ex officio, to be cited to the Consistory-Court,
&c. and there to be at great charges and vexation until he was cleared by sentence,
which was to his discredit and great expences; it was moved, that the action lay not
for this ; for he did not cite him but as an informer, and by virtue of his office ; but,
per Curiam, the action lay; for it is alledged, that he falsb el malitiosA caused him to
be cited upon pretence of fame, when no such offence was committed, and avers, that
there was not any such fame, so as he did it maliciously and of his own head. In an
action on the case against churchwardens (f), for that they falsb, dc. to the intent to
draw the plaintiff within the ecclesiastical censures for adultery with A. S. and the
declaration was, that they conspired to do it, and the one was found guilty, and the
other not guilty ; yet this being but an action on the case, it lies. [410] If A. cause
B. to be indicted for a common barrator,upon which indictment B. is acquitted, he may
have his action against A.
But I must tell you, that this action ought to be handled with a great deal of
caution, after the grand jury have found the bill upon their oaths. But indeed, unless
the bill be found, no action will lie, for that the party is not damaged ; neither is it a
good ground of action or indictment against a man, that he barely procured him to be
falsely indicted; but there must be express malice found, that it may appear that the
prosecution was not for the sake of justice, but to gratify the party's peevish revenge
or malice (b).
So that upon the whole we all agree, that the judgment must be affirmed.

MICHAELMAS TERM.
The Tenth of William the Third. In the King's Bench.
Sir John Holt, Knt., Chief Justice. Sir Thomas Rokeby, Knt., Sir John Turton,
Knt., Justices. Sir Thomas Trevor, Knt., Attorney General. John Hawles, Esq.,
Solicitor General.

[411] CASE 212. HARRISON against CAGE AND HIS WIFE.

[See Finlay v. Chirvey, 1888, 20 Q. B. D. 505.]

If there be mutual promises of marriage between man and woman, the man may
maintain an action on the case against the woman for the breach of her promise.
-S. C. 1 Salk. 24. S. C. Carth. 467. S. C. 12 Mod. 214. S. C. Holt, 456.
S. C. 1 Ld. Ray. 386. S. C. Ray. Ent. 403.
This is an action on the case, wherein the plaintiff declares, that in consideration
the plaintiff would marry the defendant, the defendant promised to marry him, and
that he had offered himself to her, but that she refused him, and had married the
other defendant.
First, this action does not lie. Indeed it might be otherwise in the case of a
woman ; for a marriage is an advancement to a woman, but not to a man, as appears
in Anne Davis's case (a), and in the case of a feoffment caus4 matrimonii prelocuti (b) ;
which shews, that there is a great difference between the two cases of a man and a

(e) Cro. Car. 291. Jones, 312. 1 Roll. Rep. 63.

(f) Dament v. Budock, 1 Roll. Abr. 112.
(b) An action for a malicious prosecution will not lie, if probable cause appear on
the proceedings ; and both malice and want of probable cause are necessary to support
this kind of action. Johnstone v. Sutton, 1 Term Rep. 428. But the want of probable
cause shall be evidence of malice ; and the action will lie, although the bill of indict-
ment be defective, Wilks v. Tentham, 4 Term Rep. 247, or the grand jury return it
ignoramus, Pollardv. Evans, 2 Show. 51. Morgan v. Hughes, 2 Term Rep. 232.
(a) 4 Co. (b) See Swinburn's Espousals, 74.
5MOD. 412. MICHAELMAS TERM, 10 WILL. 3. IN B. R. 737
woman ; for it is a breach of a woman's modesty to promise a man to marry him, but
it is not for a man to promise a woman to marry her.
Secondly, here is no time laid when this marriage was to be; and it may be still.
Thirdly, the consideration is ill; it is no more than, "I will be your husband if
you will be my wife :" it is no more than this, "I will be your master, and you shall
be my servant (c)."
Fourthly, it is not reasonable that a young- woman should be caught into a
promise.
E contra. First, the action very well lies; and certainly marriage is as much
advancement to a man as it is to a woman. And I am sorry that the counsel on the
other side has so mean an opinion of a good woman, as to think that she is no
advancement [412) to a mail. We say that we have offered ourselves, and that she
did refuse us; and though we do not mention the portion, it is well enough.
Holt, Chief Justice. Why should not a woman be bound by her promise as well
as a man is bound by his? Either all is a nudum padum, or else the one promise is
as good as the other. You agree a woman shall have an action; now what is the
consideration of a man's promise? Why, it is the woman's. Then why should not
his promise be a good consideration for her promise, as well as her promise is a good
consideration for his? There is the same parity of reason in the one case as there
is in the other, and the consideration is mutual. As for the case of the matrimonii
prcelocuti, that goes upon another reason, there being a feoffment of lands and a
condition annexed to it; but this here is upon a contract. In the Ecclesiastical Court
he might have compelled a performance of this promise (a) ; but here indeed she has
disabled herself, for she has married another. Then you might have given in
evidence any lawful impediment upon this action; as that the parties were within the
Levitical degrees, &c. for this makes the promise void; but it is otherwise of a pre-
contract.
Turton, Justice. There is as much reason for the one as for the other; and
Halcomb's case, in Vaughan, is plain.
Rokeby, Justice. If a man be scandalized by words, per quod matrimonium amisit,
a good action lies, and why not in this case (b) ?
Turton, Justice. This action is grounded on mutual promises.
Holt, Chief Justice. The man is bound in respect of the woman's promise; if she
make none, he is not bound by his promise, and then it is a nudum pactum; so that
her promise must be good to make his signify anything to her; and then if her
promise be good, why should not a good action lie upon it?
Judgment for the plaintiff.

[413] CASE 213. ODES against CLARK.

Trinity Term, 10 Will. 3, Roll 475.
Quere, if a declaration against a sheriff for an escape, stating, that he arrested the
party by virtue of a latitat, without stating the Court out of which it issued, be
good ?-S. C. 1 Ld. Ray. 397.
Sir B. Shower. This is an action of escape brought against the sheriff, in which
the plaintiff declares, that the defendant arrested J. S. by virtue of a latitat, but says
.not out of what Court, and afterwards suffered him to escape: and now the sheriff
moves in arrest of judgment, and pretends, that the process is not well set forth in
the declaration. But the sheriff cannot take advantage of erroneous process. Here
is sufficient in the declaration to charge the sheriff, and to shew he has been guilty of
a breach of his duty; and if we have alledged sufficient authority for the sheriff to
take him, it is well enough.
Northey contra. The exception to the declaration is, that it cannot appear to your

(c) Carter, 220.

(a) But see now the Marriage Act, 26 Geo. 2, c. 33, s. 13.
(b) 1 Roll. Rep. 79. 2 Roll. 18 b.
K. B. xvI.-24