Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893, IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE 9QH00L By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 1270.S82 1889 The Law relating to actions for maljciou 3 1924 019 254 436 -^*\. 'iif/ iSI ig^^M^^s %:: w 'U i .11 r 1 '7fl ^^^l P^W (iJnrnpU ffiaui irl^onl Siibraty The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019254436 THE LAW RELATING TO ACTIONS FOR MALICIOUS PEOSECUTION. BY H EEBERT STEPHEN, LL.M., OF THE INNER TEMPLE, BAKHISTER-AT-LAW, Port Author of'^A ^Digest of the Criminal Law : Procedure. ' WITH AMERICAN NOTES BY HORACE M. EUMSEY, OF THE PHILADEIiPHIA BAB. PHILADELPHIA : THE T^LACKSTONE PUBLISHING CO., 1889. Entered according to the Acts of Congress, in the year 1889, by the Blackstonb Publishing Company, in the oflSce of the Librarian of Congress, at Washington, D. C. NOTE. We suggest to our patrons that, to facilitate the labor of the Judges and Eeporters, they cite the TOP PAGING of bboks of our SERIES, and add [TEXT BOOK SBHI^S.]— Editor. (3) (4) PREFACE. This book is intended to be, in the first place, a convenient collec- tion of authorities upon the law of malicious prosecution ; and, in the second place, a demonstration of the fact that the old doctrine, that the question of reasonable and probable cause is a question for the Court, has lost its vitality, and that the duty of deter- niining that question has, by an ingenious but rather cumber- some process, been transferred from the Court to the jury. I see no reason — at least no reason in the nature of the subject — why the Legislature should not recognize and indorse the change which, as I have explained in the text, I hold to have been finally consummated by the judgment of the House of Lords in Abrath v. The North Eastern Railway Company. I think that a convenient way of doing so would be to enact that in all future actions for malicious prosecution the plaintifP should be entitled to recover on proof that the defendant instituted the prosecution against him either without honestly believing him to be guilty, or without having a reasonable ground for believing him to be guilty; and that whether the defendant's ground for believing the plaintiff to be guilty was reasonable should be — as the judges have made it — a question of fact. In my opinion, this represents the subs!:ance of the existing law, and would relieve the judges of the fiction whereby at present they ask the jury whether the defendant took reasonable means to inform himself of the true facts of the case, and whether he honestly believed in the plaintiff's guilt, and on being told by the jury that he did or did not, held that he had or had not reasonable cause accord- ingly. I see no reason why the necessity for proving malice should be retained. It is ineffectual, because the jury are at liberty to infer it from the want of reasonable cause, and it is now the jury and not the judge who decide whether or not a want of reasonable (5) VI PREFACE. cause has been proved. It is almost impossible to imagine a jury finding that the defendant honestly believed his case, that he had not taken reasonable, means to discover the truth, and that he had not been actuated by any "indirect motive." It might also be convenient to settle by legislation the undecided question whether a corporation aggregate can be liable for mali- cious prosecution. Chapter VII., which deals explicitly with the topic of the pro- vinces of the Court and the jury as to reasonable cause, is equally applicable to the torts of malicious prosecution and false im- prisonment, and Chapter VI. nearly so. The question what is reasonable cause for suspicion is identical in both torts, but in false imprisonment further questions arise of considerable in- tricacy, depending upon the rights and duties of constables, and of persons who are not constables, in the matter of arresting sus- pected persons. Since the book has been in type the Standing Committee on Law of the House of Commons has introduced into the County Courts Consolidation Bill a clause giving "to County Courts juris- diction to entertain actions for malicious prosecution. Should this provision become part of the law, I hope that it may increase the number of those to whom this book may be useful. H S. Temple, May, 1888. TABLE OF CONTENTS. [The paging refers to the ['J pages.] CHAPTEE I. Page The Wbit of Conspiracy 1 CHAPTER II. What is a Pbosecution 5 CHAPTEE in. Weongs resembling Malioious Prosecution 19 CHAPTEE IV. MaTiToe and want of Eeasonable Cause must concur .... 28 CHAPTEE V. Evidence of Malice 34 CHAPTEE VI. Evidence of want of Eeasonable Cause 41 CHAPTEE VII. Eeasonable Cause — A Question fob the Court or foe the Jury 57 CHAPTEE VIII. Malice a Question foe the Jury 84 CHAPTEE IX. Who ABE liable to be sued 85 (7) VIU TABLE OP CONTENTS. I'The paging letera to the [«] pages.] CHAPTER X. PAOB Favourable Termination of Prosecution — Evidence ... 99 CHAPTER XL Want op Reasonable Cause must bb proved by the Plain- tiff , • • 104 CHAPTER XII. Evidence as to Plaintiff's Character 116 CHAPTER XIII. Damages — Special Damages — Costs 117 CHAPTER XIV. The Distinction between Malicious PROSECtfTioN and False Imprisonment 120 INDEX 125 TABLE OP CASES. [The paging refers to the [*] pages.] PAGE Abrathc. North-Eastern Eailway Company 35, 56, 70, 83, 91, 97, 104, 106, 115 Anonymous ^ 26 Argent v. Dean and Chapter of St. Paul's 90 Arundel v. Tregono 99 Attwood V. Monger 13, 21, 27 Austin c. Dowling 121 Bank of British North America v. Strong 20 Bank of New South Wales ». Owston . 1 87 Barwis v. Keppel 86 Bas6b6 V. Matthews 102 Beckwith v. Philby . • • 58 Blachford v. Dod 60 Boaler^. Holder '. 15,102 Broad v. Ham 46, 48 Brooks V. Blain . . . . 106 Brooks v. Warwick 36 Brown i>. Chapman 22 Byner. Moore 105 Caddy v. Barlow 36 Castrique v. Behrens 21, 100 Chamberlain v. Prescot 27 Chambers^. Eobinson 12, 35 Chambers r. Taylor 98 Churchill v. Siggers 20 Clark V. Postan 8 Clements v. Ohrly 9 Cohen v. Morgan f Cornwall v. Richardson 116 Cotterell ». Jones 20 Cotton V. James 23, 106 Cox V. Wiirall 2, n. Danby «. Beaidsley 5 Davis V. Noak ^ (9) X TABLE bF CASES. [The paging refers-to the [*J pages.] PAGE Davis !). Eussell ^^ Da-wkins v. Lord Paulet 86 Dawson v. Vansandeau 8, 51, 123, n. Delegal v. HigWey 45, 46, 62 Delisser v. Towne 14, 119 Douglas V. Corbet 65 Downing v. Butcher 116 Drummond v. Pigou, 26 Dubois V. Keats 16, 18 Eagar v. Dyott and Harman 18, 60 Edwards v. Midland Railway Company 86, n. 88 Elsee V. Smith '. 8, 25 Farley v. Danks 23 Farmer v. Darling ^ 28 Fish V. Scott 42 Fisher v. Bristow 18, 99 Fitzjohn v. Mackinder 9, 16, 18, 97, 98 Floyd V. Barker , 85 Gibson v. Chaters .^ 19, 43 Gilding v. Eyre 19 Girlinton v. Pittfleld 85 Golding V. Crowle 58, 104 Goff v. Great Northern Railway Company 91 Green v. London General Omnibus Company 91 Haddrick v. Heslop 39, 65 Harris v. Warre 6 Heath v. Heape 40, 49 Henley v. Burstall 27 Hicks V. Faulkner 53, 68, 69 Higgins' Case 36 Hinton v. Heather 42 Hope V. Evered 25 Htintley v. Simson 49 Jennings v. Florence 19, 117 Johnson v. Emerson 23, 24 Johnstone v. Sutton 29, 32, 41, 86, 120 Jones V. Gwynn 12, 27, n., 32, 34, 117 Leigh V. Webb 7, 25 Leith V. Pope 118 Lister v. Ferryman : . . . 52, 54, 66, 68, 69, 75 Low V. Beardmore . . . . \ 27 TABLE OF CASES. xi [The paging refers to the [•] pages.] t>AOE M'Donald ti. Booke 61 Mellor V. Baddeley 102 Michell V. Williams . 63 Mitchell 11. Jenkins 37, 38, 84 Morgan r. Hughes 99, 123 Morrison r. Kelly ^ 101 Mu^rove v. Newell 38, 44 Nicholson v. Coghlll 105 Page r. Wiple 19 Pain V. Rochester and Whitfield 57 Panton v. Williams 47, 63, 67 Parrot v. Fishwick 105 Payn r. Porter ... .... 11 Phillips V. Naylor 50 Price !'. Crofts 3, n. Pureell v. Macnamara 105 Quartz Hill Gold Mining Company v. Eyre 22, 24, 118 Eavenga v. Macintosh 43 Read <. Taylor 13, 14 Redway v. McAndrew 21, 103 Reg. V. Mayor, &c... of Exeter 119 R. ■». Brangan 101 R. V- City of London 89 R. V. Doherty ^6 Reynolds v. Kennedy 31, 101, 102 Rodriguez v. Tadmire ... . 116 Rowlands v. Samuel ... ■ 117 Savill V. Roherts 3, 27, 58, 104, 117 Scheibel v. Fairbaim ... 19, 42 Sinclair v. Eldred 35 Smith V. Cranshaw 4, 11, 117 Snow ti. Allen 35 Stephens v. Midland Counties Railway Company and Lander . . 39, 86, 89 Steward v. Gromett 26, 103 Sutton r. Johnstone 29,32,41,86,120 Taylor's Case H Turner v. Ambler 47, 64 Turner v. Turner ^^ Venafra v. Johnson ^'^ XU TABLE OF CASES. [The paging refers to the [*] pages.] PAGE Walker v. South Eastern Eailway Company 87 Warren v. Matthews 28, 31, n. Weston D. Beeman and Another 49 Whitfield V. South Eastern Eailway Company 89, 90 Whltworth V. Hall 23, 100 Wicks V. Fentham 12 Willans v. Taylor 59, 61, 106 Wyatt V. White 7, 25 Year Books, 3 As. 13 21 22 As. 77 ■ 2, n., 85 MALICIOUS PSOSECUTIONS. CHAPTER I. THE WEIT OF CONSPIRACY. Among the formal" writs for the torts of different kinds which were recognised at the beginning of our legal history was one ealled the "Writ of Conspiracy, which might be issued against two or more persons who had conspired together to prosecute a man criminally without lawful cause. The form of this writ, is given in Pitzherbert, and is as fol- lows: {a) " The king to the sheriff, &c. If A. shall make you se- cure, &c., then put, &c., B. and C. that they be before us, &c., to show wherefore, having Tjonspired together at N., they falsely and maliciously procured the aforesaid A. to be indicted of stealing, taking and leading away a certain beast at N., and him to be taken upon that occasion, and to be detained in our prison of Warwick, until in our Court, before our beloved and faithful E. and S., our justices assigned to deliver our gaol of War- wick, according to the law and custom of * our realm, he [ * 2 ] was acquitted, to the great damage of him the said A., and contrary to the form^f the ordinance in such case provided. And have there the names of the pledges and this writ. Witness, &c." This was the form of writ in use where the prosecution com- plained of as malicious had been by way of indictment. There was also another form for use where an appeal of felony had been brought against the plaintiff by the defendants, and had "" (a1 P. N. B. 114 D. 13 *3 MALICIOUS PROSECUTIONS. resulted in a nonsuit. In this case the defendants were called upon " to show wherefore, having before had conspiracy between them at N., they falsely and maliciously procured the aforesaid A. to be appealed of the death of D., lately slain at E., and him the said A. to be taken upon that occasion and to be detained in our prison of L. until in our Court before us the same A., &c., by the consideration of our Court departed quitted thereof, &c." The statute referred to in these writs was the statute of Ed- ward III., called " De Corspiratoribus," which begins with the following definition: — (6) "Conspirators be they that do confeder or bind them- selves by oath, covenant or other alliance that every of them shall aid and bear the other falsely and maliciously to indite or cause to indite, or falsely move or maintain pleas," and goes on to deal with the kindred wrong of maintenance. (c) Since one person one cannot 'be guilty of con- [*S] * spiraoy,this form of action lay only when more persons than one were concerned in the false indictment; and when the wrong was committed by only one person there was an action on the case " in the nature of an action of conspiracy " against him. The distinction between the two kinds of action is exhaustively treated in the judgment of Lord Chief Justice Holt in the case of Savill v. Roberts, 1 Ld. Eaym. 374 (1678), which may be considered the foundation of the modern action for mali- cious prosecution.' "Where two cause a man to be indicted, if it be false and malicious, he shall have conspiracy; where one he shall have.- case." He observed that, in strictness, conspiracy lay only for falsely indicting of treason or felony where life was in danger, and he pointed out that in conspiracy the jury could not convict less than two defendants; whereas in case, if there were more defendants than one, a verdict could be given against one only (d). Holt declared the conspiracy itself to be thei " ground " of the action of conspiracy, while the ground of the action in case was a>) 33 Edw. 1, St. 2. (c) 22 As. 77; Cox v. Wirrall, Cro. Jac. 193. (. Finnell, 13 Bush. (Ken.) 629; Eastin v Bank 66 Cal. 123, 56 Amer. Rep. 77 (1884), Ross, J. ; contra Ray v. Law, 1 Peter C C. 207; Potts V. Imley, 1 Southard, 331; Algor v. Stillwell, 1 Halstead, 166: Eberlys. Eupp, 90 Pa. 259 (1879); Muldoon «. Rickey, 103, Id. Ill (1883)- Wetmore v. Mellinger, 64 Iowa, 74, 52 Amer. Rep. 465 (1884), Beck, J. ; and in such cases the plaintiff is entitled to recover the damages sustained by him: Lawrence v. Hagerman, 8 Amer. Rep. 674; Closson v. Stapels, 1 Id, 316. 28 WRONGS RESEilBLING MALICIOUS PROSECUTION. * 24 several times been maintained for maliciously and without rea- sonable and probable cause instituting procedings in bankruptcy.' The question appears to have been first raised in 1763, when it was argued, in Bromn v. Chapman, 1 W. Bl. 427, that an action did not lie for maliciously suing out a commission of bank- ruptcy, because the bankruptcy statutes (5 Ann. e. 22, s. 7; 5 Geo. I. c. 24; 5 Geo. II. c. 30, s. 23) provided specific remedies. But Lord Mansfield said: "This case is too clear to hear any argument on the other side. There is no clause to * take away the jurisdiction of the common law — no [* 23] clause that a man shall not receive more damage than 200Z," which was the limit of the statutory penalties. From which it appears that the existence of such actions must have been established before the statutes were passed. And as in the case of an indictment, so with a petition for adju- dication, that where it is malicious and actionable, it is not the less so because it is bad. In Farly v. Banks, 4 E. & B. 493 (1855), which was an action for maliciously, &c., causing the plaintiff to be adjudicated a bankrupt, it was argued that the petition, which was the act complained of, though it was mostly false and decid- edly malicious, was not sufficient in form to justify the adjudica- tion. Lord Campbell and the rest of the Queen's Bench unani- mously held that "cause" in this connection did not mean legally and regularly cause, but had its natural and wider meaning. Two cases (Cotton v. James, 1 B. & Ad. 128; Whitworth v. Hall, 2 B. & Ad. 695) were decided on other points in 1830 and 1831 respectively, in which the plaintiffs sued for the same wrong with- out any question being raised as to whether or not the action lay. In Johnson v. Emerson, L. E. 6 Ex. 329 (1871), Martin, B. (at pp. 377 — 80), expressed a doubt whether an action lay for pre- senting a petition for adjudication under the Bankruptcy Act of 1869. In that case the question was whether there was evidence for the jury of malice or want of reasonable and probable cause. The Court was divided, Kelly, C. B., and Cleasby, B., hold- ing that there was, and Martin and Bramwell, BB., * that there was not; but no doubt whether such an action [ * 24] lay was expressed by anyone except Baron Martin. ' Where the plaintiff has reasonable cause to believe that defendant is his debtor and has committed an act of bankruptcy he is justified in proceeding against him as a bankrupt : Stewart v. Somebom, 8 Otto, 187. 29 *25 MALICIOUS PROSECUTIONS. In Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. D. 674; and 52 L. J. Q. B. D. 488 (1883), however, the Master of the Rolls ex- pressed his opinion that the doubts of Baron Martin in Johnson V. Emerson were unfounded, and that, under the Act of 1869, such an action lay, On the whole, it appears that maliciously and with- out reasonable cause endeavouring to make a solvent man a bank- rupt is actionable by precedent, but it does not seem to be clearly ascertained what proceedings are necessary to constitute the wrong, nor do I know of any such case having been tried since the passing of the Bankruptcy Act, 1883. Maliciously presenting a petition to wind up a com- pany. — An action lies for maliciously and without reasonable cause presenting a petition to wind up a company. It is not nec- essary to prove special damage. Quartz Hill Oold Mining Co. v. Eyre, 11 Q. B. D. 674; and 52 L. J. Q. B. 488 (1883). The ground of the action is the injury to the company's credit, arid the action was said by the Master of the Rolls to be closely akin to that for maliciously and without reasonable cause taking proceedings in bankruptcy. Maliciously procuring the issue of a search warrant for goods. — This, as already stated (a), has been repeatedly held to be actionable, and to be subject to substantially [ * 25 ] * the same conditions as the ordinary action for malicious prosecution. Leigh v. Webb, 3 Esp. 164 (1800); Elsee v. Smith, 1 D. & R. 28 (1822); Wyatt v. White, 5 H. & N. 371; and 29 L. J. Ex. 193 (1860). Maliciously obtaining a search warrant under 48 & 49 Vict. c. 69. — In 1886 an action was brought for maliciously and without reasonable cause laying an information before a jus- tice and procuring him to issue a warrant under the Criminal Law Amendment Act, 1885 (48 & 49 Yict. c. 69, s. 10), to search the plaintiff's house for the daughter of the defendant, who suspected that she was detained there for immoral purposes'. The action was tried before Mr. Justice Manisty, who held that there was no reasonable cause for obtaining the warrant, and left the question of malice to the jury, who found for the plaintifp.. The Divisional (o) Vide ante, p. 8. 30 WR0NS3 RESEMBLING MALICIOUS PROSECUTION. ' * 27 Court (Lord Coleridge, C. J., and Matthew, J.) held that there ■was. no evidence of -want of reasonable cause, and entered judg- ment for the defendant. Lord Coleridge expressed the opinion that if the magistrate who granted the warrant satisfied himself, as the Act requires him to do, that there was reasonable cause for suspecting that the girl was detained as alleged, that was a com- plete answer to such an action. It does not seem ,to have been argued that the action did not lie. Hope v. Evered, 17 Q. B. D. 338; and 55 L. J. M. C. 146 (1886). Maliciously exhibiting articles of the peace. — An * action lies for this wrong, or for maliciously procuring [ * 26 ] a justice of the peace to bind the plaintiff over to keep the peace. Steivard v. Gromett, 7 C. B. N. S. 191 (1859). A person against whom articles of the peace are exhibited, or an application to bind him over made before a justice, cannot be heard to contradict the statements in the articles, but must be bound over if they show sufficient cause on the face of them. R. V. Doherty, 13 East, 171 (1810). Actions have been brought for maliciously and without proba- ble cause proceeding to outlawry, which was afterwards reversed, in respect of an unfounded claim of debt (Drummond v. Pigou, 2 B. N. C. 114 (1835) ); and for maliciously issuing a commission of lunacy (Turner v. Turner, Gow, 20 (1818) ).' In each of these cases the judge nonsuited, on the ground that the evidence showed probable cause for the proceeding; and in the former the Court of Common Pleas upheld the nonsuit, and discharged a rule for a new trial. Prosecution, for what. — It may be laid down as a general rule, deducible from the authorities, that wherever there is a pros- ecution for a criminal ofPence an action for malicious prosecution will lie if the prosecution was malicious and without reasonable cause, whatever the alleged criminal offence may have been. There seems at one time to have been a distinction between pro'secutions for crime of a disgraceful character and prosecutions substantially amounting only to actions for penalties. * Low V. Beardmore, Sir T. Raym. 135, 17 Car. 2, was [ * 27 ] ^ The action will be sustained against one instituting or instigating a pro- ceeding de lunatico inguirendo: Lockenour v. Sides, 57 Ind. 360. 31 * 27 ' MALICIOUS PROSECUTIOSS. an action on the case for maliciously indicting the plaintifp for a rescue. It does not appear that judgment was given ; but Twis- den, J., is reported to have said, " In Chamberlain & Prescofs case it was resolved in this Court that the action lies for such indictment, but the judgment was afterwards reversed in the Ex- chequer Chamber; but it seemed a hard case if the action should not lie" (c). Henley v. Burstall, Sir T. Eaym. 180, 21 Car. 2, was an action on the case for indicting the plaintiff for misbe- haviour as a justice of the peace. It was held that the action lay, because the prosecution was for " matter of imputation and slander as well as crime." A prosecution for forcible entry was sug- gested as an instance of a charge of "crime without slander," for which an action for maliciously indicting would not lie. An obiter dictum in this case, that an action would not lie for falsely indicting of trespass, was overruled by Holt, C. J., in Savill v. Roberts, 1 Ld. Eaym. 374; and 1 Salk. 13 (1678). On the other hand, criminal prosecutions for nuisance and the like have always been recognized as sufficient to- sustain actions for malicious prosecution. In the 17th century it was held that an action lay for a malicious presentment before the Conserva- tors of the Thames, whether the Conservators had jurisdiction to take the presentment or not. Attwood v. Monger, Style, 378 (1658). (e) The decision in Chamberlain v. Prescot is, I ^think, inconsistent with that in Jones v. Gwynn. 32 MALICE AND WANT OP KEASONABLE CAUSE MUST CONCUR. * 29 * CHAPTER IV. [*28] MALICE AND WANT OF REASONABLE CAUSE MUST CONCUR. It is the principle rule of actions for malicious prosecution that the plaintifif, in order to succeed, must prove both that the defendant's conduct in prosecuting him was malicious, and also that be had no reasonable cause for the prosecution (a).' This was clearly established in the Anonymous case, G Mod. 73' (1704), which is occasionally also cited as Warren v. MattheivsJ There the Court held, ''That let a prosecution be never so mali-' ciously carried on, yet if there be probable cause or ground for it no action for malicious prosecution will lie." ^ This has been held to be law ever since, the authority perhaps most often cited being that of Lord Mansfield and the Court of King's Bench in Farmer v. Darling (6), 4 Burr. 1971 (1766). The rule that whether there was nialice is a question of fact, and whether there was reasonable caruse a question of law, or, at any rate, a question for the judge, is discussed later, in Chapter VII. Juries have often been * told that they [ * 29 ] are at liberty to infer malice from a judicial direotiorf' that there was a want of reasonable cause. This, for reasons that will presently appear, is a direction which juries are less likely * ^ (a) The plaintiiff must give sufficient evidence to establish a primd, facie negative proof that the defendant had not reasonable cause for prosecuting (Abrath v. N. E. R. Co. Vide post, p. 107). (h) In this case counsel said that the amount of damages was not excessive as against the defendant, because he was sheriff of London, and might have been excused if he had been worth less than 15,000?. • To support the action there must be proof of want of probable cause and of malice: Wheeler v. Nesbitt, 24 How. 544 (1860); Dinsmore v. Wilkes, 12 Id. 401: Blunt v. Little, 3 Mason, 102 (1S52); Preston v. Cooper, 1 Dill, 589f Zantzinger t). Weightman, 2 Cr. C. C. 478; Marks v. Townsend, 97 N. Y. 590;; Good V. French, 115 Mass. 201; Gilliford v. Windel, 108 Pa. 142 (1S84),, Gordon, J.; Bernar v. Dunlap, 94 Id. 329; Eberly v. Rupp, 90 Pa. 259/ (1879) ; Dickinson v. Maynard. 96 Am. Dec, 379 note 381 ; Morton v. Young,, 92 Id. 565 note .568; Al«ftcnnder v. Harrison, 90 Id. 431 note 438. ' The essential ground of the action is the institution of proceeding* against the plaintiff in some court of law and witliout probable cause: Mr.; Justice Steele in Drew v. Potter, 39 Yt. 189 (1867), " 3 PEOSECUTIONS, ETC. 33 «30 MALICIOUS PROSECUTIONS. to get in future. It was emphatieally laid down by Lords Mans- field and Loughborough, in Sutton v. Johnstone, 1 T. K. 493, and in error, 510 (1786), that want of reasonable cause cannot be in- ferred from malice." The case was an extremely important one on many grounds; and this seems a suitable place to give some account of it. Sut- ton, the plaiutifi, was a captain in the navy, and was in command of the Isis, which was one of the ships forming a squadron under the command of Johnstone the defendant. The Isis having been much damaged in action, it was physically impossible for Sutton to obey an order given by Johnstone that the ships should advance in line. Accordingly he did not obey it, though, in the words of the declaration, he "did not wilfully and willingly disobey" it. Johnstone thereupon placed him under arrest, and kept him under arrest for three years, at the end of which time he was tried by court martial for disobedience to orders whereby the public ser- vice was hindered and an opportunity of escape was afforded to the enemy, and acquitted, on the ground that he had done all that was possible under the circumstances. The jury found a verdict for 6,000Z., which appears from the report to have been a very fair decision on the merits, and the Court of Exchequer refused a rule for a new trial, on the grounds that the long period be- [ * 30 ] tween arrest and trial was evidence of * malice (which it certainly was), and that the condition of Captain Sutton's ship, which was not in dispute, and must have been known to the defendant, was evidence of want of reasonable cause. The case was argued in error before Lords Mansfield and Loughborough, the principal assignment of error being that it appeared from the declaration that there was reasonable cause for the prosecution. They reversed the judgment of the Court of Exchequer, in a judg- ment of which the following are the most material parts: — (c) "There is no similitude or analogy between an action of tres- (c) At p. 544. ^ The proof of malice does not establish the want of probable cause, bnt that must be shown independently of it: Hurd v. Shaw, 20 111. 354; Wade e. Walden, 23 Id. 425; Israel v. Brooks, Id. 575; Chapman v. Cawrey. 50 Id. 512; Mitchinson v. Cross, 58 Id. 366; Krng «. Ward. 77 Id. 603; Casper- son V Sproule, 39 Mo. 39; Callahan v. Caifarata, Id. 136; Sharpei'. Johnston, 76 Id. 660 (1882); Kidder v. Parkhnrst, 3 Allen, 3.93; Cloon v. Gerry, 13 Gray, 201; Travis v. Smith, 1 Pa. 234; Malone v. MUrphy, 2 Kans. 250; Hall V. Hawkins, 5 Humph. 357; Heyne v. Blair, 62 N. Y. 19; Bell „. Pearcv. 5 Ired. 83. . > > J, 34 MALICE AND WANT OF REASONABLE CAUSE MUST CONCUR. * 31 pass or false imprisouineut and this kind of action. An action for trespass is for the defendant's having done that which, upon the stating of it, is manifestly illegal. This kind of action is for a prosecution which, upon the face of it, is manifestly legal. The essential ground of this action is, that a legal prosecution was carried on without a probable cause} We say this is emphatically the essential ground, because every otJier allegation may be im- plied from this; but this must be substantially and expressly proved, and cannot be implied. "From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied. "From the most express malice the want of probable cause can- not be implied.^ "A man, from a malicious motive, may take up a * prosecution for real guilt, or he may, from circumstances [ * 31] which he really believes proceed upon apparent guilt; and in neither case is he liable to this kind of action (d). "After a verdict, the presumption is that such parts of the de- claration, without proof of which the plaintiff ought not to have had a verdict, were proved to the satisfaction of the jury.' In this case, to support the verdict, there was nothing necessary to ((i) Warren v. Matthews, 6 Mod. 73. ' To maintain an action for malicions prosecntion the plaintiff must prove, first, that the defendant instituted the former action against the plaintiff; secondly, that it was without probable cause; thirdly, that it was accompa- _ nied by malice; fourthly, that the former suit terminated favorably to the plaintiff in the present action: Miller v. Mulligan, 48 Barb. 30 (1866), Ingalls, J.; Boyd v. Cross, 35 Md. 194 (1871), Alvey, J. As to circumstances necessary to found the action: McCardle v. McGinley, 86 Ind. 538; Bitz v. Meyer, 11 Vroom, 252. ^ Want of probable cause is sufficient evidence of malice, but the most ex- press malice is not a sufficient ground to infer want ofprobable cause: Pang- burn V. Bull, 1 Wend. 345; Ulmer v. Leland, 1 Greenleaf, 135: Marshall v. Maddock, Little's Sel. Cas. 107; Williams v. Vaumeter, 8 Mo. 339—342. ' What is a sufficient declaration: Graham v. Noble, 13 S. & R. 233 (1833), Tilgham, J. ; Weinberger v. Sbeljy, 6 W. & S. 336. Malice should be alleged in the declaration and if want of probable cause is not averred the omis- sion is cured by verdict: Griffith v. Ogle, 1 Binn. (Pa.) 172; contra Gibson V. Waterhouse, 4 Greenleaf, 220; Ellis v. Thilman, 3 Call. 3; Young «. Gre- gorie, Id. 446; Davis v. Clough, 8 N. H. 157; Maddox v. McGinnis, 7 Mon- roe. 3' 1. The fact that the suit is terminated should be set forth but if omitted is cured by verdict: Cardinal v. Smith, 109 Mast. 158.' In Vermont an averment'of a charge an arrest and aquittal without any mention of any Court or process and without profert of the record of any i-udical proceeding makes the declaration insufficient: Drew v. Potter 39 Verm. 189 (1867), Steele, J. 35 f32 MALICIOUS PROSECUTIONS. be proved, but that there was uo probable cause from which the jury might imply malice, and might imply that the defendant knew there was no probable cause. " The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show it prob- able or not probable, are true and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law; ' and upon this distinction proceeded the case of Reynolds v. Kennedy, 1 WiIb. 232." The judgment goes on to point out that the declaration, and the sentence of the court-martial, showed that the plaintiff had in fact disobeyed the order of his commanding officer, although he was justified in disobeying it by the only possible justification, namely, that it was impossible for him to obey. Hence it appeared that the question the court-martial had to decide was whether it was possible or impossible for Sutton to obey the orders he re- ceived. This is not altogether easy to reconcile with the [ * 32 ] * judgment of Parker, C. J., in Jones v. Gwynn, 10 Mod. 214; and Gilb. K. B. 185 (1713). In that case the de- fendant had indicted the plaintiff for exercising the faculty of a badger without being licensed thereto. It was objected on be- half of the defendant that it appeared from the declaration that the plaintiff was a badger, which was " the affirmative part of the indictment, and he having licence must be shown on the defen- dant's part," and that therefore the declaration showed reasonable cause for the prosecution. The Chief Justice replied that the of- fencecharged in the indictment was "not the bare using of the fac- ' Probable cause is a qnestion of law to be determitied by the Court upom thefactsof the case; Greenwade ». Mills, 31 Miss. 464, Bussfc «. Gibbons, 6 H. & N. 912; Sweet v. Negus, 30 Mich. 460; Thompson v. Force, 65 111. 370; Harkrader v. Moore, 44 Cal. 144; Swaim v. Stafford, 4 Ired. 392; Ulmer v. Leland, 1 Me. 135; Cooper ». "Waldron. 50 Id. 80; Speck u Judson! 63 Id. 207; Boyd v. Cross, 35 Md. 194; McWilliams v. Hoban, 42 Id. 56; Masten V. Deys, 2 Wend. 424; Waldheim v. Sickel, 1 Hilton, 45. "When the question of probable cause becomes a mixed question of law and fact it must be given to the jury under proper instructions from the Court: Humphriss v. Parker, 52 Me. 502; Heyne v. Blair, 69 N. Y. 19; Colo V. Curtis, 16 Minn. 182; Driggs v. Burton, 44 Vt. 124; Sims *. McLendon, 3 Strobh. 557. Ther; the existence of the facts relied on to constitute tho want of probable cause is for the jury, but tha question of what amounts to the want of probable cause is tor the court: Boyd v. Cross, 35 Md. 194 (1871), Alvey, J. ; Wilmarth v. Mountford, 4 Wash. C. C. 79; Stewart v.. Someborn, 8 Otto, 187 (1878); Walbridge v. Pruden, G Out. 1 (1882), Sterrett, J.; Bell t'. Mathews, 37 Kans. 688 (1837). 36 MALICE AND WANT OF KEASONABLE CAUSE MUST CONCUR. * 33 ttlty of a badger," but doing it unlicensed. If it were otherwise, there should be reasonable cause to indict every badger in Eng- land. Might it not be said, in Johnstone v. Sutton, that the offence charged against Captain Sutton was not merely failing to obey his orders, but voluntarily failing, or failing without justification, to obey them f It is probable that in military law, as administered by courts martial, the presumption is against a defendant who loses his ship or fails from any cause to obey orders, but the re- sult seems to be that if a misfortune such as befell Captain Sut- ton is ipso facto reasonable cause for prosecution, the prosecutor is free to conduct his prosecution with as much malice as he pleases, subject only to liability for false imprisonment. Lords Mansfield and Loughborough conclude this part of their judg- ment as follows: — "Under all these circumstances, we have no difficulty to give our opinion, that in law, the commodore had a probable cause to bring the plaintiff to a fair and impartial trial * "The probable cause goes to both parts of the charge; [ * 33 ] the disobedience and obstructing the public service. But if it went to the disobedience only, it would equally avail the defendant in this cause. For it is not like the case put of a plaintiff recovering, where he lays, in the same sentence, words actionable, and words not actionable. "Here the defendant alleges a justification of the arrest, sus- pension, and trial. If his justification be allowed, there is an end of the action." In conclusion, the judgment expresses a doubt whether an ac- tion for malicious prosecution lies at all against an officer in the King's service for bringing his subordinates on active service to a court martiaL The subject is considered in Chapter IX. 37 *35 MALICIOUS PROSECUTIONS. * [ * 34 J * CHAPTEK V. EVIDENCE OF MALICE. It may be asserted that the word malice, in this conpection, has no technical meaning, but may be more aptly defined — or rather explained— as spite, than in any other way. It has often been described as (among other things) an "indirect motive," " which is not a particularly happy or intelligible phrase. It matters the less what it is, because juries are at liberty to infer its existence if they think there was no reasonable cause, and they are gener- ally ready to do so. In some of the early cases of malicious in- dictment, notably Jones V. Gwynn, 10 Mod. 214 (1713), malice was declared to be a term of law, which appears to have meant that it was a technical way of saying that there was no reasonable cause. In malicious indictment it was enough to say that the defendant indicted the plaintiff falso et malitiose without adding sine rationabili etprobabili causd, though these latter words were necessary in malicious prosecution. As no one sues now for malicious indictment, the distinction is obsolete, and in any case the ease with which pleadings can be amended would have made it so. The reason why malice has held its place alongside of want of reasonable cause as a part of the cause of action, is [ * 35 ] the rule that reasonable cause is a question of law. * Sub- stantially it has for a long time been law that malice is a question of fact, and the directions to juries as to what is malice, or what malice is, have not been many. ^ By malice is meant not the act but the wrongful motive which prompts the act: Garvey v. Wayson, 42 Md. 178 (1878), Grason, J. ; Harphami). Whit- ney, 77 111. 32 (1875), Sheldon, J. Malice is of two kinds; malice in fact or express malice and malice in law or implied malice; the former includes not only ill will, resentment, personal hatred, but any act done wilfully and to the prejudice of another: Pullen u. Glidden, 66 Me. 202 (1877), Libbey, J.; and in either case it must be established to sustain the action : Kerr ». Wil- liamson, Addison, 270. As to what constitutes malice: Shaul v. Brown, 28 Iowa, 37; Dennis v. Ryan 65 N. Y. 385; Schofield v. Ferrars, 47 Pa. 194; Eichter v. Koster, 45 Ind. 440 (1874). Downey, J. ; Johnson v. Ebberts, 6 Saw. 538; Tibbier v. Alfred, 12 Fed. Eep. 264. 38 EVIDENCE OF MALICE. * 36 For reasons which will presently appear, I am of opinion that the whole of the distinction between malice and want of reason- able cause is obsolete, and that it would greatly conduce to a ^clear understanding of the law of malicious prosecution if the supposed necessity of proving malice were done away with altogether, and the question of reasonable cause frankly recognized as a question of fact for the jury, as I shall argue that it practically has been, at least since the decision of the House of Lords in Abrath v. N. E. R. Co} In the present chapter I shall merely enumerate the principal cases in which decisions have been given as to what does or does not constitute malice. In Chambers v. Robinson, 2 Str. 691 (1732), Chief Justice Ray- mond "allowed the plaintiff to give in evidence an advertisement put into the papers by the defendant of the finding of the indict- ment and other scandalous matter . . . as a circumstance of malice." Sinclair V. Eldred, 4l Taunt. 7 (1811), was an action for mali- cious arrest. The defendant had made an affidavit of debt, and had held the plaintiff to bail, and had afterwards suffered judg- ment of non pros, to go against himself. Lord Mansfield held that this was no evidence of malice, because he might have abandoned bis action by reason of the loss of a document or the death of a witness. In Snow V. Allen, 1 Star. N. P. C. 502 (1816), which * was tried at nisi prius before Lord Ellenborough, the [ * 36 ] defendant had arrested the plaintiff on a judgment, after having previously arrested his bail. The plaintiff's attorney had warned the defendant's attorney that the arrest would be unlaw- ful, but the defendant's attorney had been otherwise advised by counsel, and relied on Riggings case reported in Cro. Jac. 820. Lord Ellenborough nonsuited, on the ground that however igno- rant the defendant's attorney had been, th.e plaintiff could not re- cover unless he could "show that the defendant had been actuated by some purposed malice." The same judge tried the case of Brookes v. Warwick, 2 Star. ' The principle that both malice and want of probable cause must be established has been upheld in the American Law: Murray u. Long, 1 Wend. 140; Foshay v. Ferguson, 2 Denio, 617; Stone v. Crocker, 24 Pick. 81; Plum- mer v. Noble, 6 Green leaf, 285; Lyon v. Fox, 2 Browne, 67; Winebiddle ». Porterfield, 9 Barr, 137, and cases cited in Munns v. Dupont, 1 Amer. Leadv, Cas. 223. 39 *37 MALICIOUS PROSECUTIONS. ,N. P. C. 389 (1818), in which the facts were that the defendant •who was an inspector of a bank, brought back from the bank a note stamped "forged" to the plaintiff,' who was one of the payees of it. A dispute arose as to who was entitled to keep it, and Hpon the plaintiff refusing to give it up, the defendant prose- cuted him for being feloniously in possession of it. The judge held that there was no probable cause for the prosecution, and directed the jury that "to press a commitment under circam- .etances like the present was such a crassa ignorantia that it amounted to malice." In Caddy v. Barlow, 1 Man. & R. 275 (1827), the plaintiff and her .brother, both being infants, had been jointly prosecuted by ,the defendant. At the trial of the action, to which the plaintiff's brother was not a party, Vaughan, B., admitted evidence that the defendant ill-treated the brother in the plaintiff's absence, when both the plaintiff and her brother were in custody, [ *. 37 ] *in order to induce him to prefer a criminal charge against their father. The Court of Queen's Bench (Lord Ten- terden, L. C. J., and Bay ley, Holroyd, and Littledale, JJ.) held that this evidence was rightly admitted, on the grounds that it was part of the res gestae and showed malus animus, and "unlaw- ful motives" in the defendadt. Mitchell V. Jenkins, 5 B. & Ad. 588 (1833), was an action for malicious arrest. The defendant had arrested the plaintiff for a debt of .45?., though the defendant was entitled to a set-off of 16Z., 80 that in reality only 29Z. was due. The officer told the plaintiff when he arrested him that he was prepared to accept the smaller sum in satisfaction. Taunton, J., directed the jury that these circumstances showed malice in law, and that they must find for* the plaintiff. This was held to be a misdirection. Lord Denman, L. O. J., was of opinion that malice is' altogether a question for the jury. Parke, J., said, in the course of his judgment, " The term malice in this sort of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives." I confess that I do not understand what this means. If malus animus does not mean spite or hatred, it must, one would think, be a term of art, with some meaning capable of being expressed in English. As to an improper motive, the only improper motive can be a wish to injure the party rather 40 EVIDENCE OF MALICE. * 39 than to vindicate the law, and if that is not spite or hat- red it is very like it. As to an indirect motive, * unless [ * 38 ] it means an improper motive, it is impossible to suggest what it does mean. Musgrove v. Neivell, 1 M. & W. 582 (1836), is a case turning chiefly on reasonable cause, and is discussed from that point of view hereafter [a). In so fai' as it deals with evidence of malice, the material facts were that, upon the defendant giving the plaintiff in charge, the constable, who knew the plaintiff, offered explanations, to which the defendant refused to listen. Lord Denman said that " malice," " in actions of this nature, was not confined to the ordinary meaning of the word malice, but com- prehended any improper motive." He directed the jury that if they thought the defendant persisted in his charge from " obstin- acy or feelings of wounded pride," and that the defendant either did not believe, or ought not to have believed, in his charge when he preferred it before the magistrate, his conduct was malicious, and they should find for the plaintifl. After a verdict for the plaintiff, the Court of Exchequer made a rule absolute for a new trial, chiefly on the ground of misdirection as to reasonable cause, but also because, in their opinion, there was no evidence of malice. If the case were to occur again, it may be doubted whether it would be decided in the same way. Considering that a jury may infer malice from want of reasonable cause,' it is hard to see how a judge can now stop a case on the sole ground that there is no evidence of malice, and the case of Mitchell v. Jenkins, quoted above, confirms this view. *In Haddrick v. Heslop, 12 Q. B. 267 (1848), the [*39] (n) Vide post, p. 44. ' Malice need not be afSrmatively proved but may bo inferred from -want of probable cause or the zeal and activity of the prosecutor: Cecil v. Clarke, 17 Md. .50S: Straus v. Young, 36 Id. 246(1872), Grason, J.; Cooper v. Utter- bach, 37 Md. 282; Fllckinger v. Wagner, 46 Id. 581 ; Dietz v. Langfit, 63 Pa. 234; Sehofield v. Ferrars, 47 Id. 194; Paukett r. Livermore, 5 Clarke, 277; White r. Tucker, 16 Ohio, 468; Ammerman v. Crosby, 64 Ind. 451; Blass v. Gregor, 15 La. Ann. 421; McKown d. Hunter, 30 N. Y. 625; Pangburn ?). Bell. 1 Wend. 345; Williams v. Taylor. 6 Bing. 183; Clossnn v. Staples, 42 Vt. 209; Mowry v. Whipple, 8 R. I. 360; Harphara v. Whitney, 77 111. 32; Merriman v. Mitchell, 13 Me. 438: Garrison v. Pearce, 4 E. D. Smith, 255; Harkraderi). Moore, 44 Cal. 144; Hollidav v. Stearling. 62 Mo. 321; Ewing V. Sanford. 19 Ala. 605; Bozeman u. Shaw, 37 Ark. 161 (1881), Eakin, J.; Blunt V. Little. 3 Mason, 102 (1822), Strong, J.; Wiggin (■. CoflSn, 3 Story, 1 ; Johnson v. Efforts, 6 Saw. 538. But this presumption is only prima facie and may be rebutted: Boyd v. Cros,s, 35 Md. 194 (1871), Aivey, J.; Bell v. Graham, 1 Nott& McCord, 278; ^&y v. Law, Peter C. C. 207. 41 *40 MALICIOUS PROSECUTIONS. main evidence of malice was that the defendant, having been defendant in another suit in which the plaintiff had given evi- dence against him, upon receiving from someone else an account of the evidence the plaintiff had given, declared that he would indict him for perjury. His informant said that there was no ground for such an indictment, and the defendant answered that even if there were not it would tie up the mouths of the plaintift, and of the plaintiff in the former action, for a time, and that he (the defendant) would move for a new trial. He did indict the plaintiff, and thence the action. Wightman, J., asked the jury whether they thought he indicted him from malice. The jury answered "that the woid malice was strong," but that he indicted him " from an improper motive." The Court of Queen's Bench (Lord Denman, C. J., Coleridge, "Wightman, and Erie, JJ.) re- fused a rule for a new trial applied -for on the ground of misdi- rection. In Stevens v. Midland Counties Rail. Co. and Lander, 10 Exch. 352 (1854), the defendant Lander was the superintendent at Derby of the defendant company. The plaintiff had a small piece of the company's tarpauling in his possession, and Lander prosecuted the man from whom the plaintiff had got it for lar- ceny. The grand jury threw out the bill. Lander then insisted on having a warrant against the plaintiff .for receiving, "to pun- ish someone in order to deter others, &c." A rule to enter the ver- dict for the defendants was discharged as to Lander. It [ * 40 ] was made absolute as * to the company upon other grounds. It was in this case that Baron Alderson ex- pressed the well-known opinion, still held by Lord Bramwell, that no action for malicious prosecution lies against a corporation aggregate, because it has no mind, and therefore cannot be mali- cious (6).' The jury may, of course, infer malice from the behaviour of the defendant subsequently lo the beginning of the prosecution. Heath v. Heape, 1 H. & N. 478; 26 L. J. M. C. 49 (1856). (J) Vide post, p. 87. ' See note page 86. 42 EVIDENCE OF WANT OF REASONABLE CAUSE. * 41 * CHAPTER YI. [ * 41 ] EVIDENCE OF WANT OF REASONABLE CAUSE. The question of ■what amounts to proof of a want of reasonable cause for a prosecution is the central dif&culty of actions for malicious prosecution.' In the present chapter I propose merely to enumerate the decisions which have been pronounced as to what did and what did not establish that the defendant prose- cuted without a reasonable cause. '^ In the following chapter I ^ Reasonable cause, as it is termed in the English law, is not a belief hon- estly entertained, for that of itself is not sufficient; but it is necessary, as liOrd Campbell, C. J., says in Broughton v. Jackson, 18 Q. B. 378, 91 L. J. Q. B. 266 (1852), " that the defendant should show facts which would create a reasonable suspicion in the mind of a reasonable man. Also Ferryman i\ Lister, L. R. 3 Ex. 202, approved by Lord Hatherly, L. R. 4 H. L. 533 (1870). Probable cause, as it is termed in the American Law, may be un- derstood to be such conduct on the part of the accused as may induce the Court to infer that the prosecution was undertaken from public motives: TJlmer v. Leland, 1 Greenleaf, 135; Thompson v. Mussey, 3 Id. 306. The defendant in a criminal prosecution was found guilty, but upon a new trial a nolle prosequi being entered, the defendant was discharged ; it was held that the action could be maintained and the first verdict was no evidence of probable cause: Richter r. Coster, 45 Ind. 440 (1874). The verdict of guilty is strong primd facie evidence of probable cause but capable of being re- butted: Pavson V. Caswell, 22 Me. 212 ; Herman v. Brooherhoof, 8 Watts, 240; Jones r. Kirksey, 10 Ala. 839; and a judgment is sufficient evidence of probable cau.se to defeat the action although reversed on appeal: Palmer v. Avery, 41 Barb. 290 (1864), Bacon, J.; Reynolds v. Kennedy, 1 Wilson, 232; Whitney v. Peckham, 15 Mass. 243; Welsh v. R. R. Co., 14 R. L 6C9 (1884), Carpenter, J.; Clements r. Apparatus Co., 67 Md. 461 (1887), Robinson, J.; contra Ash v. Morton, 20 Ohio, 119; Ewing v. Sanford, 19 Ala. 605. Yet it is not conclusive evidence, for it may be impeached for iraud, conspiracy, perjury or subordination: Cloon r. Gerry, 13 Gray, 201; Whitney r. Peck- ham, 15 Mass. 143. ,-r. ^ ^ < r ' A discharge by a magistrate: Orr v. Seller, 1 Pennypacker (Pa.), 445; or the rejection of the bill by the grand jnry: Garrard r. Willett, 4 J. J. Marshall, 628 (1830); Potter v. Casterline, 12 Vrooom, 22 (1879), Woodhull, J.: Johnsdn r. Miller, 63 Iowa, 529 (1884), Seevers, J.; or the voluntary dis- continuance of a former suit is primd facie evidence of want of probable cause: Burhaus v. Sanford, 19 Wend. 417; Wetmore u.- Mellinger, 64 Iowa, 741 (1884); contra Palmer r. Avery, 41 Barb. 290 (1864). But a mere acquittal on trial: Williams v. VanMeter, 8 Mo. 339; Stone v. Crocker, 24 Pick. 81; Bitting v. Ten Eyck, 82 Ind. 421, 28 Myers' Fed. Dec. Sec. 662; or an entry of nol. pros. : Yocum v. Polly, 1 B. Mon. 358, contra Richter v. Ros- ter 45 ind 440 (1874); or the offer to compromise is not evidence of want ot probable cause: GiUiford v. Windel, 108 Pa. St. 142 (1884), Gordon, J.; Emerson v. Cochran, 111 Id. 619 (1886). 43 *43 MALICIOUS PROSECUTIONS. shall trace the decline of the original doctrine, that the question whether the defendant has been shown to have acted without reasonable cause is one for the judge, and the growth of what I hold to be the modern practice that, notwithstanding the embar- rassing survival of a rule which has become fictitious, this ques- tion is one which juries are called upon to decide, and do decide. Some account of the case of Johnstone v. Sutton has been given in a previous chapter. The principal ground of the deci- sion in the defendant's favour was that it appeared from the dec- laration that the plaintiff was prosecuted for Jiot having obeyed a particular order of his commanding officer, and that he had not in fact obeyed it. Lords Mansfield and Loughborough held that this amounted to reasonable cause for the prosecution, [ * 42 ] * and that the fact that the plaintiff had had a good de- fence to the prosecution was immaterial. Where the prosecution sued for was one for assault, the ques- tion of want of reasonable cause will probably turn upon whether the defendant was really the injured party in the assault, or whether he began it. In Hinton v. Heather, 14 M. & W. 131 (1845), it appeared that the defendant had to some extent pro- voked and assaulted the plainti£f,on his own premises, whereupon the plaintifi threw the defendant downstairs and out of the house, for which the defendant indicted him for assault. Pollock, C. B., directed the jury that if when the defendant began the prosecu- tion he knew that the plaintiff had not exceeded his lawful rights of repelling violence, and turning out an intruder, there was a want of reasonable cause; but that if he knew that the plaintiff had been more violent in putting him out than under the circum- stances he had a right to be, there was no want of reasonable cause. Alderson and Rolfe, BB., held this direction to have been right. At the same time they threw some doubt upon an older case of Fish v. Scott, Peake, 135 (1792). In that case counsel opened the following facts: — Scott hit Pish, and Fish returned the blow. They then went to a field and fought, after which Scott indicted Fish for assault. Upon this opening. Ken- yon, C. J., nonsuited, on the ground that the fact of the defend- ant, who preferred the indictment, having also been the original aggressor, could not amount to a want of reasonable cause. Scheibel v. Fairbaim, 1 B. & P. 388 (1799), is one of [ * 43 ] * the earlier cases showing that whether or not the de- 44 EVIDENCE OP WANT OF REASONABLE CAUSE. * 43 tendant has reasonable cause to prosecute depends upon what was his information and belief when he did so. It was an ac- tion fur malicious arrest, the circumstances being that between the issue of the writ and the arrest the debtor satisfied the debt. It was held that this did not show want of reasonable cause, because the defendant was not bound to send to prevent the writ being executed, and the plaintifp might, before paying, have inquired whether a writ had been taken out or not. Eooke, J., observed that it was a question of law whether the defendant sent to pre- vent the writ fi'om being executed in reasonable time or not. Probably, at the present time, it would be a question for the jury. In the closely similar case of Gibson v. Chaters, 2 B. & P. 129 (1800), Lord Eldon nonsuited; and a rule to set aside the non- suit was refused. Ravenga v. Mackintosh, 2 B. & C. 693 (1824), is an authority as to the relevance of having taken counsel's opinion before pros- ecuting.' The action was one for malicious arrest; and the evi- ' It IS remarkable with what indecision the books speak of the manner in which the advice of counsel constitutes a defence. Some of the eases hold that it is proof of probable cause; Eoss v. Irvine, 26 111. 259; LeMaister v. Hunter. Bright, 495; Laughinji. Clawson, 27 Pa. St. 330; Fisher «. Flower, 33 Id. 501; Olmstead v. Partridge, 16 Gray, 383; Potter i'. Scale, 8Cal. 217; Levy «. Brannan, 39 Id. 485; Besson r. Southard. 10 N. Y. 236; Murray v. McLain, 2 Car. Law Rep. 186. Some cases maintain it disproves malice: Murphy v. Larson, 77 111. 172; Center v. Spring, 2 Clarke, 393: Rover v. Webster, 3 Id. 503; Somraer v. Wilt, 4 S. & R. 20; Stanton v. Hart. 27 Mich. 539; Williams V. Van Meter, 8 Mo. 339; Davenport v. Lynch, 6 Jones, L. 545; Cooper v. Utterbach, 37 Md. 282 (1872), Bowie, J. While others, and it is believed the majority of cases, refer to it as establishing both the absence of malice and the presence of a probable cause: Wilkinson v. Arnold, 11 Ind. 45; Galloway V. Stewart, 49 Id. 156; Grouldw. Gardiner, 8 La. Ann. 11; Phillips d. Bonham, 16 Id. 387; Bartlettr. Brown. 6 R. I. 37; Newton ?•. Weaver, 13 Id. 616 (1882), Matterson, J.; Wicker ». Hotchkiss, 62111.107; Palmer u. Richardson, 70 Id. 545; Davie v. Wisher, 72 Id. 262; Skidmore v. Bricker, 77 Id. 164: Stevens V. Fassett, 27 Me. 267; Soule v. Winslow, 66 Id. 447; Walter v. Sample, 2,> Pa. 275; Emerson v. Cochran, 111 Id. 619 (1886), Gordon, J.; Stone u. Swift, 4 Pick. 389; Wilder v. Holden, 24 Id. 8; Stanton v. Hart, 27 Mich. 539 (1874), Campbell, J.; Ash v. Marlow, 20 Ohio, 119; Wood v. Weir, 5 B. Mon. 544; Lermey v. Williams. 32 Ark. 166; Turner i). Walker, 3 G. & J. 380; Chandler V. McPherson, 11 Ala. 916; Ames v. Rathbnn, 55 Barb. 194; Bliss «. Wytiian, 7 Cal. 257; Blunt v. Little, 3 Mason, 102; Burnapi). Albert Taney, 244; John- son V. Daws, 5 Cr. C. C. 283; Schippel v. Norton, 38 Kans. 567 (1888), Valen- tine, J. This defence will not avail, if the procurement of professional advice was used as a cloak lor malice or as a matter of precaution: Glascock v. Bridges, 16 La. Ann. 672; Chapman v. Dood, 10 Minn. 350; Ames v. Rathbun, 55 Barb. 194; Kimball v. Bates, 50 Me. 308; Brown v. Randall, 36 Conn. 56; Prongh 1'. Entriken, 11 Pa. 81; Schmitt v. AVeidmau, 63 Id. 173; Burnap v. Albert, Taney, 244; the facts must be presented for the opinion of competent connsel: Donnelly v. Daggert, 145 Mass. 314 (1887), Field, J.; and thers 45 *44 MALICIOUS PROSECUTIONS. dence was that the defendant, before bringing against the plain- tifP the action in which the plaintiff was arrested, took the opinion of "a special pleader of considerable eminence," who advised him that his action against the plaintiff lay; and that if he had him arrested on mesne process an. action for malicions arrest would not lie. Abbott, L. C. J., directed the jury, that if they thought the defendant acted in good faith, relying on the opinion of coun- sel, and believing the plaintiff to be liable to the action, [ *44] *they should find for the defendant; but if they thought he did not believe in his own cause of action, and relied on counsel's opinion only in so far as it gave him hopes that he would escape an action for malicious arrest, then he had no rea- sonable cause for tjie arrest. After a verdict for the plaintiff, it was held that this direction was right, and that the defendant had had no reasonable cause. In the course of his judgment, Bayley, must be no concealment or fraud or corrupt use of such counsel: Sharpe v. Johnston, 59 Mo. 557, 21 Amer. Law Reg. 587. Finally the defendant must act in good faith upon the advice received: Thompson v. Lumley, 50 How. Prac. 108; Hall v. Snydam, (i Barb. 83; Pot- ter V. Seale, 8 Cal. 217; Anderson v. Friend, 71 111. 475; Wetmore v. Mel- linger, 64 Iowa, 741 (1884), Beck, J. The defendant may set up this defence, although he did not submit to his counsel facts which he might have a,scertained by reasonable diligence: John- son V. Miller, 69 Iowa, 562 (1886), Eeed, J.; or where the tacts stated did not warrant an opinion given bond fide: Walter- v. Sample, 25 Pa. 275 (1855), Woodward, J. Counsel, whose opinion isasked, mustnotbejoiutly interested in the prose- cution, nor should he act in bad faith towards his client, otherwise the de- fence will fall: Kendrick v. Cypert, 10 Humph. 291; Stone v. Swiit, 4 Pick. 389; White v. Carr 71 Me. 558; and the facts upon which the opinion is founded is admissible to test the good faith of the defendant: Cooper v. Utter- bach, 37 Md. 282 (1872), Bowie, J.; Watt v. Corey, 76 Me. 87 (1884), Libbey, J.; Peck V. Chouteau, 91 Mo. 140 (1886), Black, J. A curious case arose in Missouri. The defendant followed counsel's advice and yet in commencing the suit, he was actuated by the desire to injure the plaintiff, and Hough, J., ruled that the action of malicious prosecution could be sustained: Sharpe v. Johnston, 76 Mo. 660 (1882). The action on the case will lie for maliciousjy advising one to sue or prose- cute without reasonable cause: Grove v. Brandenburg, 7 Blackford, 234; Mowry v. Miller, 3 Leigh, 561; Perdu v. Connerly, Eice, 49; Bicknell v. Dorian, 16 Pick. 478; Wood v. Weir, 5 B. Mon. 544. Justices of the peace and those not regularly admitted to the bar as attor- neys and counsellors have been held to be incompetent advisors: Suttofl v. McConnell, 46 Wis. 269; Olmstead o. Partridge, 16 Gray, 381; Murphy v. Larson, 77 111. 172; Straus v. Young, 36 Md. 24o (1872), Grason, J. In Penn- sylvania, the law on this point has been but recently, settled. In the two decisionsof Rosensteinu Feigel, 6 Phila. 532 (]868\ and Thomas d. Painter, 10 Id. 409 (1875), the advice of an aldernwn was considered a good defence. When the point was placed before the.Supreme Court in Bernarii. Dunlap, 13 Nor. 329 (1880), it was left undecided, but in Brobst v. Ruff, 100 Pa. St.' 91 (1882), Mr. Justice Mercur decided that such counsel was insufficient. Thus are the decisions made uniform in the states. 46 EVIDENCE OF WANT OF REASONABLE CAUSE. * 45 J., said: "I accede to the proposition, that if a party lays all the facts of his case fairly before counsel, and acts bond fide upon the opinion given by that counsel (however erroneous that opinion may be), he is not liable to an action of this description." Holroyd, J., thought it unnecessary to decide whether a party, influenced by a malicious motive, but believing by reason of counsel's opin- ion that he has a good cause of action, has reasonable cause for an arrest or not. The case of Musgrove v. Newell, 1 M. & W. 582 (1836), has already been considered (a) in its relation to evidence of malice. As regards reasonable cause, it does not appear to be an authority upon which it would be well to rely. The circumstances were: that the plaintiff, who was a respectable person, was waiting for the mail on a bridge, with his servant, at 11 o'clock at night. While he was there, the defendant, who was riding across the bridge, was molested by a drunken man. He went and fetched" a constable, and on his return found only the plaintiff, whom he gave in charge. The constable, who knew the plaintiff, assured * the defendant that he was a respectable person, [ * 45 ] and that he, the constable would be answerable for him. The defendant, however, insisted on having the plaintiff arrested, and charged him before a magistrate with attempted robbery. Lord Denman, C. J., directed the jury that the defendant had rea- sonable cause for originally charging the plaintiff, bat not for per- sisting in the charge after the constable's explanation. The Court of Exchequer (Lord Abinger, C. B., Bolland, Alderson, and Gur- ney, BB.) held this to have been a misdirection, on the ground that the constable's explanation could not alter the facts, though it might weaken the inference to be drawn from them; and that, therefore, if there was reasonable cause before the explanation there was also reasonable cause after. This ruling implies a dis- tinction, which later cases, in my opinion, show to be fallacious, between the statements of the constable and the other facts of the case. That reasonable cause depends upon the state of the defendant's mind, and the information which is present to il, when he in- stitutes or carries on the prosecution, appears clear from Delegal v. Highley, 3 B. N. C. 950 (1857), which was an action for malicious _« (a) Vide, p. 38. 47 *47 MALICIOUS PROSECUTIONS. prosecution and libel. The case was argued on demurrer to the plea to the court for malicious prosecution. This was a plea. of justification, and is described in the judgment of the Court of Common Pleaa (delivered by Tindal, C. J.) as setting out "the several facts and circumstances attending the transaction out of which the charge before the Lord Mayor arose. To this [ * 46 ] plea there is a special * demurrer, alleging as one ground of objection that it contains no allegation that the de- fendant, at the time he caused the charge to be made, had been informed of, or knew, or in any manner acted on, those facts and circumstances." This defect was held fatal to the plea, although it contained the words "wherefore the defendant had reasonable and probable cause to believe, and did believe," that the charge was well founded. If the pleader had specified the time at which the defendant so believed, the allegation would have been suf- ficient. "The gravamen of the declaration is that the defendant laid the accusation, without any reasonable or probable cause operating on his mind at the time." "The defendant (fe) would have failed at the trial if he had not proved that the facts of the case had been communicated to him, or, at all events, so much of the facts as would have been sufficient to induce a belief of the plaintiff's guilt on the mind of any reasonable man previous to the charge being laid before the magistrate." The view of the law suggested by the judgment in Delegal v. Highley is confirmed by the case of Broad v. Ham, 5 B. N. C. 722 (1839). ' In this case the plaintiff had absconded, and the stolen goods were found in his box, but there was also some evidence that, notwithstanding these facts, the defendant had not in fact believed the plaintiff to be guilty, and had prosecuted in order to compel the plaintiff to pay a debt. The judge (c) told [ * 47 ] the jury that "the plaintiff must show * malice in the defendant, and want of probable cause for the charge; that the absconding of the plaintiff and the finding the cheque in his box pnmft facie afforded probable cause for proceeding against him; but if the jury thought the defendant himself believed the plaintiff had not committed a felony, that was some evidence of the absence of probable cause." Upon this direction there was b) The report saya "plaintift" ; but the meaning Is clear. c) It does not appear who he was. 48 EVIDENCE OF "WANT OP REASONABLE CAUSE. * 48 a verdict for the plaintiff, and the Court of Common Pleas refused to disturb it. To the same general effect is the case of Turner v. Ambler, 10 Q. B. 252 (1847). The plaintiff, who wasthe defendant's tenant, in the course of making alterations to the premises, sold, con- trary to the terms of his agreement, some fixtures which belonged to the defendant. The defendant thereupon prosecuted him for larceny. The plaintiff suggested that the purpose of the prose- cution was to compel him to give up his tenancy. Lord Den- man, C. J., "left it to the jury to say whether the defendant had acted maliciously, and, with reference to that question, whether the evidence showed, in point of fact, such want of probable cause for the prosecution as amounted to prove that the defendant had instituted it from motives of malice." On the authority of Pan- Ion V. Williams (d) he reserved "the question of probable cause, as distinct from that of motive, to be decided by himself as a question of law." After a verdict for the plaintiff, the Chief Jus- tice held that want of reasonable and probable cause had not been proved, and entered a verdict for the * defend- [ *48 ] ant, giving leave to move. The subsequent motion failed. Lord Denman, in delivering the judgment of the Court, said: " The prevailing law of reasonable and probable cause is, that the jury are to ascertain facts, and the judge is to decide whether those facts amount to reasonable and probable cause. But among the facts to be ascertained is the knowledge of the defend- ant of the existence of those which tend to show reasonable and probable cause, because without knowing them he could not aci npon them ; and also the defendant's belief that the facts amounted to the offence which he charged, because otherwise he will have made them the pretext for prosecution without even entertaining the be- lief that heliad a right to prosecute. In other words, the reasonable and probable cause must appear not only to be deducible in point of law from the facts, but to have existed in the defendant's mind at the time of his proceeding; and perhaps whether they did so or not is rather an independent question for the jury, to be decided on their view of all the particulars of the defendant's conduct, than for the judge, to whom the legal effect of the facts only is more properly referred." Lord Denman then pointed out that (rf) Vide post, p. 63. 4 PKOSEcrmoNS, etc. 49 *49 MALICIOUS PEOSECUXIONS. the doctrine laid down in Broad v. Ham (e) — that the defendant not in fact having believed the plaintiff to be guilty, though there was prima facie cause for his doing so, but having prosecuted from an ulterior motive, v?as evidence of want of reasonable cause — " must, however, be qualified by the necessity of re- [ * 49 ] quiring proof of the * absence of that belief, when rea- sonable and probable cause is established. There was none such here." " The unfair use made of the charge may prove malice, as the jury held that it did, but does not raise any infer- ence of a belief that there was no reasonable and probable cause; for the contrary belief is perfectly consistent with malice." Although what is reasonable cause is a question, to a great ex- tent, of the defendant's belief and information, it seems that his own ignorance in fact of the law which he sets in motion is not reasonable cause.' In Huntley v. Simpson, 27 L. J. Ex. 134 (1857), the plaintiff had carried off the defendant's timber under a claim of right, asserting that he had a lien upon it. The pro- secution took place three days after the plaintiff, in conversation with the defendant, had asserted his claim of right. Channell, B., held that this showed a want of reasonable cause, and the Court of Exchequer held the direction good. Bramwell, B., said, " It is a blunder on the part of the defendant, and it is one of those blunders which it is lust as well that anybody should be punished for." See, also, on this point. Heath v. Heape, 1 H. & N. 478; 26 L. J. M. C. 49 (1856). A defendant who is responsible only for part of a prosecution may have reasonable cause for that part, although he might not have had it for instituting the prosecution. In Weston v. Beeman and another, 27 L. J. Ex. 57 (1857), the plaintiff had been pro- secuted for larceny, alleged to have been committed by the sale (e) Vide supra, p. 46. ' As to what constitntes probable cause, as it is called in the American Law, 01 reasonable cause, as it is called in the English cases: Harpham v. Whitney, 77 111. 32 (1875), Sheldon, J.; Wengertw. Seashore, IP. &W. 232: Beach v. Wheller, 30 Pa. St. 69; Eberly v. Rupp, 90 Id. 2-59; Ross v. Irvine, 85 Am. Dec. 373, note 381; Johnson v. Miller, 50 Am. Rep. 758; Bitting v Ten Eyck, 82 Id. 505; Shaule v. Brown, 4 Id. 151, 28 Myers' Fed. Dec. Sec 657. As to what constitutes want of probable cause: Hermann v. Brookerhoff 8 Watts, 240. " ' The question of probable cause depends solely upon the belief o^ the pro- secutor concerning the guilt or innocence of the accused: Miller v. Milligan 48 Barb. 30 (1866), Ingalls, J.; and floating rumora are not an adequate foundation for such a belief: Smith v. Ege, 52 Pa. St. 419 (1865), Strong, J. 50 EVIDENCE OF WANT OF REASONABLE CAUSE. * 51 of cattle which he had assigned to the defendants as security *for an advance. He had a Chancery suit [ * 50 ] against the defendants for an account pending at the time. The summons had been taken out by the defendants' agent, with the advice of their attorney, but without their auth- ority. The defendants were present at the hearing of the sum- mons, which was dismissed. After a verdict for 201. the Court of Exchequer, made absolute a rule to set aside the verdict, and enter it for the defendants. Bramwell and Watson, BB., said, that the defendants had done nothing but attend the summons which had already been taken out, and that until they heard the evidence they knew nothing of the circumstances. Moreover, it was not certain that what the defendant did did not amount to larceny. The evidence did not show that there was no reason- able and probable cause. Where parish officers summoned a bankrupt before justices for rates due, and finally had him arrested on the justices' warrant of commitment, the facts that they knew of his bankruptcy, and that his examination had been adjourned, and that he had ob- tained an order protecting him from arrest during such period as the Court of Bankruptcy thought proper under the then law of bankruptcy, and that he claimed freedom under this order from arrest for rates, and contended that the parisli ought to prove for the rates under the bankruptcy, were held to be no evidence that the parish officers had not reasonable cause for the &,n'est, and no evidence of malice. Phillips v. Neylor, 3 H. & N. 14, and in the Exchequer Chamber, 4 H. & K 565 (1858-9). The circumstances relied upon as evidence of want *of probable cause in Datvson y. Vansandeau, 11 W. [*51J B. 516(1863), were rather peculiar. One Poole was being examined before one of the Aldermen of London on a charge of fraudulent bankruptcy. The plaintiff Dawson was the attorney defending Poole, and the defendant was the attorney conducting the prosecution. A witness, B., was called for the prosecution to prove that he had assisted in the removal of Poole's goods. In cross-examination he denied the truth of a written statement signed by him and produced by the plaintiff, and said the plain- tiff had made it up. The defendant then gave the plaintiff into custody on a charge of conspiracy to defraud. This was made the subject of an action for false imprisonment, as to which 51 * 52 MALICIOUS PROSECUTIONS. there was no defence.) The plaintifP was immediately searched, and there was found upon him a letter from Poole, whom he was defending, to him, suggesting that one W., who had helped B. to remove the goods should be sent away, and inclosing a receipt for money for that purpose which W. was to sign. The defendant then called W., who told the same story as B., and asserted that the proof which he had given to the plaintiff as a witness for Poole had been made up by the defendant. The defendant then preferred a charge of conspiracy against the plaintiff, who was remanded, and subsequently discharged. As far as appears from the report the whole of this episode was irregularly interpolated in the middle of the hearing of the charge against Poole. Upon proof of these facts, Blackburn, J., directed the jury that f * 52] there was no evidence of * reasonable and probable cause, because, assuming the plaintiff to have been guilty of the conspiracy, B. was his accomplice, and the letter from Poole was not discovered by the defendant until after the plaintiff was taken into custody. Cookburn, C. J., and Crompton and Blackbiirn, JJ., held that this was a misdirection, because the evidence of an accomplice, though not, generally speaking, enough by itself to procure a conviction, makes a primQ, facie case which may pos^ sibly be reasonable cause for prosecuting; " and here the con- firmatory evidence, though not discovered until after the plaintiff had been given into custody, was discovered before the criminal charge was preferred against him with a view to prosecution, and so was admissible as evidence of reasonable and probable cause for that prosecution." In Lister v. Perryman, L. R. 4 H. L. 521; L. J. Ex. 177 (1870), the substantial part of the evidence was to the following effect: (&) — The defendant was informed by his coachman Hinton (1) that the plaintiff had some little time before expressed ad-, miration for the defendant's gun, and said he should like to have it; (2) that' he had been informed by one Robinson that the defendant's gun was in the plaintiff's barn; (3) that he and Rob- inson and the plaintiff' had gone together to the plaintiff's barn, and the plaintiff had there produced another gun, and said that that was the gun which Robinson had seen in his possession; (6) The action was for false imprisonment, but the law as to what is reasonable cause is the same in such actions as in actions for malicious prose- cution. 52 EVIDENCE OF WANT OF REASONABLE CAUSE. * 54 bat Eobinson persisted that the gun he had * previously [ * 53 ] seea was the defendant's. There was contradictory evi- dence as to whether this was the whole of the information be- fore the defendant; but the jury found as a fact that it was. Lord Chief Baron Kelly directed them that in that case they must find for the plaintiff, because the defendant had acted upon Hinton's account of what Robinson had said, when he might have inquired from Robinson himself whether he was sure the gun he had seen the plaintiff using was the defendant's. The Courts of Exchequer and Exchequer Chamber upheld this ruling; but the House of Lords ordered a new trial on the ground of misdirection. They held, in substance, that though the pai't of Hinton's communica- tion to the defendant, which is here numbered ('2), was hearsay, the parts numbered (1) and (3) were not hearsay, but statements at first hand as to what the plaintiff had said and done, and that therefore it did not follow from the defendant's omission to com- municate personally with Robinson that he had no reasonable cause for the prosecution. The nature of reasonable cause is discussed at considerable length by Hawkins, J., delivering -the judgment of the Queen's Bench Division in Hicks v. Faulkner, 8 Q. B. D. 167; 46 L.T. 127; and 51 L. J. Q. B. D. 268 (1882). In this case the plaintiff was the son of the defendant's tenant. The defendant had taken proceedings against the plaintifl's father in the County Court for rent, in the course of which the plaintiff swore that he had given tha defendant the key of the premises. The defendant prosecuted the plaintiff for perjury. At the trial of the action for malicious * prosecution the plaintiff swore that he had [ * 54 J delivered the key. The defendant swore that he had not, and produced a diary and other evidence in corroboration of his assertion. Baron Huddleston directed the jury, in substance, (1) that if they thought the plaintiff had delivered the key, and that the defendant, when he prosecuted him, knew that he had done so, they should find for the plaintiff ; (2) if they thought the plaintiff did not deliver the key, for the defendant; (3) if the plaintiff did deliver the key, but the defendant had forgotten all about it, and honestly believed that the plaintiff had committed perjury, for the defendant, because in that case the prosecution was not malicious, and was not without reasonable cause; (4) if they could not make up their minds, for the defendant, on the 53 *55 MALICIOUS PROSECUTIONS. ground that it was for the plaintiff to prove his case. The jury- found generally for the defeodant. A rule nisi having been obtained for anew trial, it was argued that (3) was a misdirection, because if the defendant was led to prosecute through a defect in his own memory he ought to take the consequences. The Divisional Court held, on the authority of Lister v. Perryman (gr), that a prosecutor may, whore it is reasonable to do so, rely on some one else's memory, whence they deduced that he may, d, fortiori, rely on his own. Mr. Justice Hawkins defined the con- stituent circumstances of reasonable cause as follows: — "(1) An honest belief of the accuser in the guilt of the ac- cused: [*551 * "(2) Such belief must be based on an honest con- viction of the existence of the circumstances which led the accuser to that conclusion: "(3) Such secondly-mentioned belief must be based on rea- sonable grounds — such grounds as would lead any fairly cautious man in the defendant's situation so to believe: "(4) The circumstances so, believed and relied on by the ac- cuser must be such as amount to reasonable ground for believe in the guilt of the accused." Whether the matter gains in clearness from being expressed with this degree of elaboration, I am not certain. But shortly, Mr. Justice Hawkin's view is, that having reasonable cause to prosecute means believing in the guilt of the accused because of being reasonably convinced of cirQumstances which afford rea- sonable ground for that belief.' Is this any clearer than the shorter statement, that having reasonable cause for prosecuting means believing honestly and reasonably that the prisoner was guilty ? To take a simple illustration. A. sees B. shoot C. through the heart and prosecutes B. for murder. B. subsequently sues A. for malicious prosecution. The question whether A. had reasonable cause would be divided for determination into four, namely : Did A. honestly believe that B. murdered C. ? Was A.'s belief that B. (g) Ante, p. 52. ^ The action cannot be maintained if the defendant had good reason to believe and did believe that the plaintiff had committed the offence charged : Fisher v. Forrester, 33 Pa. 501; Smith v. Ege, 52 Id. 419; Seibert v. Price 5 W.&S. 438; Richter». Koster, 45 Ind. 440 (1874); Murphy v. Martin, 58 Wis. 276 (1883), Cassoday, J. ^ '' ' 54 EVIDEISCE OF WANT OF REASONABLE CAUSE. * b6 ■was guilty of murder based on aa honest conviction of the. exist- ence of the circumstance that he had seen B. kill C. without ap- parent justification? Was the fact that A., at the time of prosecuting, remembered having seen B. shoot C through * the heart a reasonable ground for A's honest [ * 56 ] conviction that he had seen B. kill C. without apparent just- ification ? Was the circumstance that A. had seen B. kill C. with- out apparent justification a reasonable ground for believing in the guilt of B. ? I am disposed to suggest that the last three of these questions are an unnecessarily amplified repetition of the first. In Abrath v. The North Eastern Raihvay Company, 11 Q. B. D. 79; *. (C. A.) 440; and (H. L.) 11 Ap. Cas. 247; and 52 L. J. Q. B. 352;.*. (C. A.) 620; and (H. L.) 55 L. J. Q. B. 457 (1883—5), which I shall have further occasion to discuss, the defendants, upon the original information of persons asserting themselves to have been the plaintiff's accomplices, and after making certain inquiries and taking legal advice, prosecuted the plaintiff for conspiring to defraud them. The jury found that the defendants took reasonable care to inform themselves of the true state of the case, and that they honestly believed the case which they laid before the magistrates. It was held in the Court of Appeal and the House of Lords that this verdict justified the judge in holding that want of reasonable cause was not proved, and entering the verdict and judgment for the defendants. It is worth noticing that the substantial decision of the House of Lords was that these questions, together with the further question whether the defendants were actuated by any indirect motive in preferring the charge (to which in Abrath v. The North Eastern Railway Company the jury gave no answer), were the proper questions to leave to the jury. 53 ■ 57 MALICIOUS PROSECUTIONS. ^ * 57 1 * CHAPTER VIT. REASONABLE CAUSE— A QUESTION FOE THE COUET OE FOE THE JUEY? The purpose of this chapter is to show, by an account of the de- cisions on the subject, how the universally acknowledged rule, that the question of reasonable cause is a question for the judge, has been gradually affected by successive judicial decisions until the practical burden of deciding whether or not the plaintiff has shown a want of reasonable cause has been in effect transferred to the jury.' The doctrine that reasonable cause is a question of law finds implicit sanction in the case of Pain v. Rochester and Whitfield, Cro. Eliz. 871 (41 Eliz.). The action was for "conspiracy for > procuring him falsely and maliciously to be indicted." The plea set out the circumstances whereby the defendants came to indict the plaintiff. The Court of Queen's Bench held, on demurrer, ' The leading American case on this subject, Munns v. Dupont, 3 Wash. C. C. 31-41, 1 Amer. Lead. Gas. 211 (1811), was one in which the plaintiff had been charged with stealing a brass pounder and three dranights of ma- chinery and causing imprisonment ; also for bringing a civil action abd de- manding excessive bail ; also for an indictment as the receiver of five pieces of parchment knowing them to be stolen; all charged to have been done ma- liciously and without probable cause. The plaintiff suffered a non-suit be- cause the defendants justified themselves. The charge of the court was by Mr. Justice Washington : "The rights of individuals are not to be lightly spirted with, and he who invades them ought to take care that he acts from pure motives and with reasonable caution. If without probable cause he has inculpated another, and subjected him to injury in his person, character, or estate, it is fair to suspect the purity of his motives, and the jury are war- ranted in presuming malice. But, though malice should be proved, yet, if the accusation appear to have been founded upon probable ground of suspi- cion, he is excused by the law. Both malice and want of probable cause must be established against him. " What is probable cause? — It is a reasonable gi'ound of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged. The malice is entirely vsdthin the province of the jury. Proba- ble cause is a mixed question of law and fact: the circumstances .sufficient to prove probable cause must be decided by the Court ; but to the jury must be referred the matter wljether those circumstances are proved by credible testimony." 56 REASONABLE CAUSE. * 59 that the plea was good, "for their causes of suspicion and absent- ing of himself [the plaintiff] after notice of the warrant are causes sufficient, and he [the defendant] need not show -what evi- dence was given ; and the imprisonment need not be answered, when the indictment is grounded upon good cause." * A hundred and fifty years later was decided Golding [ * 58 ] V. Crowle, Sayer's Eep. 1 (1751). It was an action for maliciously prosecuting for perjui-y. Denison, J., directed the juiy that upon the evidence they ought to find for the defendant, but they found for the plaintiff. A rule for a new trial was made absolute. "And by the Court: As the direction of the judge was in a matter of law, and was, in our opinion, very right, the present verdict, which, is contrary thereto, ought not to stand. More was proved in this case on the part of the defendant than it was incumbent upon him to prove ; for in the case of Savill v. Rob- erts it is laid down, that if a bill of indictment have been found a true bill, the defendant, in an action for maliciously prosecuting the indictment, shall not be obliged to prove a probable cause for preferring the bill. But it shall lie upon the plaintiff to prove express malice " (a). The first appearance which I have been able to find of a ten- dency to transfer the qnestion of reasonable cause from the judge to the jury is in the case of Beckwith v. Philby, 6 B. & C. 635 (1827), which was not a case of malicious prosecution, but of false imprisonment. In that case Littledale, J., told the jury that he should find that there was reasonable cause for the arrest and imprisonment if they " thought upon the * whole [ * 59 ] case that the defendants had reasonable cause for sus- pecting theplaintifi of felony." The Court of King's Bench held this to be a right direction, and refused a rule for a new trial. This decision was followed in Davis v. Russell, 5 Bing. 354 (1839), where Gaselee, -J., similarly directed the jury in an action for malicious prosecution. The Court of Common Pleas (Best, C. J. and Burrough and Gaselee, JJ.) held that this direction amounted to saying, "If you think the defendant acted bond fide, (a) This appears to me to be an exaggeration. What Chief Justice Holt said in Savill v. Roberts, was that in that particular case, if the grand jury- had ignored the bill, the defendant would have been neither "imprisoned nor scandalized nor put to expense," and consequently would have suffered no damage, and could not have recovered. Vide post, p. 104. 57 * 60 MALICIOUS PROSECUTIONS. I am of opinion that he had probable cause for the course he pur- sued," and was right. About the same time the cases of Willans Y. Taylor were tried. The first trial took place in 1829 (6 Bing. 183). Tindal, C. J., nonsuited, and the Court made a rule abso- lute for a new trial, on the ground that there was enough evi- dence of want of reasonable cause to put it on the defendant to prove reasonable cause affirmatively. At the' new trial, 2 B. & Ad. 845 (1831), upon evidence being given that on the trial of the indictment against the plaintiff the defendant was in Court, , and was called, but did not give evidence, Tindal, C. J., told the jury that they must determine whether the defendant's motive for not appearing when called was that he had sworn falsely when he appeared before the grand jury in support of his bill, and was afraid to do so again ; that if that was his motive there was a want of reasonable cause for the prosecution, and if not there was reason- able cause. After a second verdict for the plaintiff, the Court of King's Bench held that this direction was right, for that [ * 60 ] it was a * question of fact what the defendant's motives were, and a question of law whether they gave him rea- sonable cause for prosecuting. In Eagar v. Dyott and Harman, 5 O. & P. 5 (1831 ), it appeared that as regarded the defendant Dyott, the plaintiff, whom she had prosecuted for embezzlement, had received money on her ac- count, arid had denied to her that he had received it. Lord Tenterden thereupon held that "there was sufScient evidence of reasonable and probable cause," and nonsuited without taking a verdict on the facts. In Blackford v. Bod, 2 B. & Ad. 179 (1831), Lord Tenterden also nonsuited. There, however, the facts were admitted on the pleadings. They were that the plaintiff, who was a solicitor, had written to the defendants demanding money, on behalf of a client and threatening criminal proceedings if it was not sent, and had subsequently taken out a summons against them for false pre- tences. They retorted by indicting him for demanding money with threats, and this was the prosecution complained of. The Court refused a rule for a new trial. It appears that the money originally demanded by the plaintiff was admitted in the plead- ings not to have been in fact due, but I should doubt -sytether this was an essential part of the grounds of the nonsuit. The case of Venafra v. Johnson, 10 Bing. 801 (1833), marks 58 REASONABLE CAUSE. * 62 a step in the practical transference of ihe question of reasonable cause from the judge to the jury. In this case the evidence was that the defendant had heard from his servant that the plaintiff had threatened * him, and had accordingly sworn [ *61 j before a justice that he believed his life to be in danger, whereupon the plaintiff was brought Ufl on a warrant and held to bail. Park, J., considered that reasonable cause for the proceed- ings had been shown, and nonsuited. The Court (Tindal, C. J., Bosanquet, Alderson, and Park, JJ.), however held, on the authority of Willans v. Taylor, that it should have been left to the jury whether the defendant believed the charge he had made, and was really in fear of his life, or whether it was colourable only. In McDonald v. Booke, 2 B. N. C. 217 (1835), the plaintifp, having been dismissed from the defendant's service, took away some of his goods. The defendant wrote to her that if she did not return them he would prosecute. The letter was lost, and the defendant, getting no answer, laid an information against the plaintiff, and caused her to be arrested on a warrant, but subse- quently withdrew from the prosecution. Denman, C. J., left the case to the jury, who found for the plaintiff. The defendant moved for a rule on the ground that the judge ought himself to have decided whether there was a want of reasonable cause. The rule was refused. Park, J., observing, "Whenever the question of probable cause if a mixed question of law and fact, it may properly be left to the jury." If this were construed strictly it would, I suppose, include every case in which the facts are not admitted. The doctrine that having or not having reasonable cause is a question of the defendant's state of mind is * the [ * 62 ] method whereby the crucial question what conduct is reasonable has been practically transferred to the jury.* What ' Probable cause upon which to found a prosecution exists only where there is such a state of facts as would lead a man of ordinary caution and prudence to believe and entertain an honest and strong persuasion that the person is guilty. No mere suspicion nor even a strong belief arising from the character of the accused, his habits or countenance can be admitted as a justification: Holburn v. Neal, 4 Dana, 120; Stierii. Labar, 16 W. N. C. 273 (1885), Trunkey, J.; Burlingame v. Id., 8 Cowen, 141: French v. Small, 4 Verm. 363; Hall v. Hawkins, 5 Humphreys, 357; Foashay v. Ferguson, 2 Denio, 617; Swain v. Stafford, 3 Ired. Law, 289; Merriman v. Mitchell, 13 Me. 439; Travis v. Smith, 1 Barr, 234; Winebiddle v. Porterfield, 9 Id. 137. On this subject some courts have fallen into error holding that probable cause 59 ^ 63 MALICIOUS PROSECUTIONS. ■was a man's motive is clearly a question of fact, and it is but a step from requiring the jury to find -what his motive was to re- quiring them to find whether it was reasonable. The doctrine that the question is one of motive is well illustrated in Dele- gal V. Highley, 3 B. N. C. 950 (18373. The first count of the declaration was for malicious prosecution, and the plea to it, which was a plea in justification, was argued on demurrer. The judgement of the Court, delivered by Tindal, C. J., describes it as setting out "the several facts and circumstances attending the transaction out of which the charge before the Lord Mayor arose. To this plea there is a special demurrer, alleging, as one ground of objection, that it contains no allegation that the defendant at the time he caused the charge to be made, had been informed of, or knew or in any manner acted on those facts or circumstances. [The plea alleged as follows: — "Wherefore the defendant had reasonable and probable cause to believe and did believe," but did not say that he believed at the time of prosecuting. ] The gravamen of the declaration is, that the defendant laid the accusa- tion without any reasonable and probable cause operating on his mind at the time," and "the defendant [the report says plaintiff] would have failed at the trial if he had not proved that the facts of the case had been communicated to him, or at all events, so much of the facts as would have been sufficient to induce [ * 63 ] a belief of the plaintiff's guilt on * the mind of any reasonable man, previoas to the charge being laid before the magistrate." Pardon v. Williams, 2 Q. B. I69 (1841) was an action for maliciously prosecuting for forgery. Lord Denman, who had a strong disposition, in cases of this character, to leave as much as possible to the jury, trie^ the case, and is said by Tindal, C. J., to have "directed the jury that in a case of that sort it was not a question of law but a question of fact whether there was reason- able and probable cause." This was held to have been a mis- direction, and so no doubt it would be now, if it was put in that uncompromising fashion. Tindal, C. J., giving judgment in the depends upon whether there was reasonable ground for prosecuting and not upon the prosecutors knowledge or belief: Mowry v. Miller, 3 Leigh. 561 ; Hickman 1-. Griffin, 6 Mo. 37; Adams v. Lesher, 3 Blackford, 241; Bell v. Pearcy, 5 Ired. S3; Wills v. Noyes, 12 Pick. 324; Paris w. Starke, 3 B. Men. 4. Others have held that it depended merely on belief and not on the grounds of belief: Chandler v. McPherson, 11 Ala. 916. 60 REASONABLE CAUSE. * 64 Exeheqaer Chamber, laid it down that even where the case is complicated the judge ought to tell the jury what facts, if proved, amount to reasonable cause, and what do not. In Michell v. Williams, the plaintiff had been the defendant's tenant, with sporting rights. With the permission or at the in- stigation of the defendant's agent the plaintiff cut the dam of a fish-pond and took the fish. Disputes afterwards arising, the agent prosecuted the plaintiff under 7 & 8 Geo. 4, c. 30, for doing so. Wightman, J., asked the jury the three questions which follow: — "1. "Whether Durance [the agent] acted under the authority of the defendant when he laid the information and prosecuted the proceedings against the plaintiff:" — Answer, yes. "2. Whether Durance gave permission to fish the pond in question by cutting down the bank:" — Answer, yes. "3. Whether the defendant, in taking these proceedings * against the plaintiff was actuated by evil feelings towards [ * 64 ] him, and not by a bon& fide and genuine belief that the plaintiff had committed the offence imputed to him:" — Answer, yes. Mr. Justice Wightman, thereupon, held that thei-e was a want of reasonable cause, and required the jury to assess the damages. In support of a rule nisi for a new trial, it was argued that the judge ought also to have asked the jury whether the de- fendant knew that Durance had given the plaintiff leave to break the dam, but the Court of Exchequer held that the plaintiff had, upon the evidence and the answers of the jury, established a want of reasonable cause, and that it was, therefore, unnecessary to ask the question. This case appears to me to have been in strict ac- cordance with the old rule, the jury finding nothing about the defendant's beliefs or state of mind, except that he was malicious, which would not have been enough if the judge had not found as a fact that there was a want of reasonable cause. The application of this authority to the leading case of Turner •V. Ambler, 10 Q. B. 252 (1847), of which an account is given in the preceding chapter (&), led to a statement of the law not very easy to understand. Lord Denman, who tried the case, found that there was no want of reasonable cause, although the jury had found that there was malice, and that after he had "left it to the jury to say whether the defendant had acted maliciously, and, with (6) See ante, p. 47. 61 * 66 MALICIOUS PROSECUTIONS. reference to that question, whether the evidence showed, [ * 65 ] in point of fact, such a * want of probable cause for the prosecution as amounted to proof that the defendant had instituted it from motives of malice." Judgment was ultimately entered for the defendant on the ground that the judge's finding that there was no want of reasonable cause, was right. In Haddrick v. Heslop, 12 Q. B. 267 (1848), for the first time, as far as I know, the jury were expressly made the judges of the "reasonableness" of the defendant's conduct. Wightman, J., asked the jury whether the defendant believed that there was reasonable ground for indicting the plaintiff, and the jury found that he did not. They were also asked "whether he had indicted from malice," and answered "that they thought the word 'malice' was strong, but that they thought the defendant had indicted from an improper motive." Upon these findings the verdict was entered for the plaintiff, and a rule for a new trial for misdirection was refused. Lord Denman said, "It would be quite outrageous if, where a party is proved to believe that a charge is unfounded, it were to be held that he could have reasonable and probable cause." In Douglas v. Corbet, 6 E. & B. 511 (1856), Bramwell, B., asked the jury whether they thought the defendant had reason- able and probable cause for his belief that the plaintiff stole a sheep, for the larceny of which he indicted him. The jury found that he had, and the judge then held that tinder the circumstances there was reasonable cause for the prosecution. There was some evidence of malice, to the effect that the defendant prose- [ * 66 ] cuted in order to put a stop to an action in * the County Court. The Court of Queen's Bench (Coleridge and Crompton, JJ. ; Erie, J., diss.) discharged a rule for a new trial. In Lister -v. Ferryman (c), L. E. 4 H. L. 521; L. J. Ex. 177 (1870), the following observations on the respective provinces of judge and jury were made in the judgments delivered in the House of Lords. It will be remembered that the action was one for false imprisonment, but the question of reasonable cause is subject to the same rules in that action as in actions for malicious prosecution. "The Lord CniNOELLOE (Lord Hatherley) : .... I certainly do concur in one of the observations made by the learned counsel (c) Vide ante, p. 52. 62 KEASONABLE CAUSE. * 67 during the course of his argument — that it is, on the whole, some- what to be regretted Ihat this question of reasonable and prob- able cause should not be left to the jury, who heard the evidence and saw the demeanour of the witnesses, and who would, there- fore, be in a good position to judge what degree of trust it was reasonable and proper that the person to whom this information was given should repose in his informant. I should have been glad if the duty of deciding this question had not been left to those who have not the same intimate knowledge of the matter which was possessed by persons who heard the whole cause, and were, therefore, in a better position for estimating the amount of credit diie, boti to the original prosecutor and to the persons who may have been his informants. * " Lord Chelmsford: (d) — My Lords, there can be [ * 67 ] no doubt, since the case of Panton v. Williams (e), in which this question was solemnly decided in the Exchequer Cham- ber, that what is reasonable and probable cause in an action for maUeious prosecution, or for false imprisonment, is to be de- termined by the judge. In what other sense it is properly called a question of law I am at a loss to understand. No definite rule can be laid down for the exercise of the judge's judgment. Each case must depend upon its own circumstances, and the result is a conclusion drawn by each judge for himself, whether the facts found by the jury, in his opinion, constitute a defence to the action. The verdict in cases of this description, therefore, is only nominally the verdict of a jury. "Lord Westbuby: (/) — My Lords, I have very few words to add. The existence of ' reasonable and probable cause ' is an inference of fact. It must be derived from all the circumstances of the case. I regret, therefore, to find the law to be that it is an inference to be drawn by the judge, and not by the jury. I think it ought to be the other way. "Lord Colonsat: (/) — My Lords, I have listened to this case with much interest, finding myself placed in what is to me the somewhat novel position of having to deal with the question of want of reasonable and probable cause as a question of law for the Court, and not a question of fact for the jury. I have fre- (d) At p. 535. (c) 2 Q. B. 169. (/) At p. 5d8. 63 *69 MALICIOUS PROSECUTIONS. [ * 68 ] quently * had to deal with cases of this kind in the other end of the island; but there this 'question of want of reasonable and probable cause is treated as an inference in fact to be deduced by the jury from the whole circumstances of the case, in like manner as the question of malice is left to the jury." This is the last case in which it is laid down without reserve that the question, whether the defendant's behaviour was " reason- able," must be decided by the judge. The two following cases show how judicial ingenuity has devised a method whereby the wishes unanimously expressed in the judgments of the House of Lords in Ldster v. Ferryman have been practically gratified. The case of Hicks v. Faulkner, 8 Q. B. D. 167, and 81 L. J. Q. B. 268 (1882), has been treated of at some length in the pre- ceding chapter. The question of reasonable cause is divided, in the judgment delivered in the Divisional Court by Hawkins, J., into four parts, namely: — 1. An honest belief of the accuser in the guilt of the accused; 2. Such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; 3. Such secondly-mentioned belief must be based upon rea- sonable grounds— that is, such grounds as would lead any fairly cautious man in .the defendant's situation so to believe; [ * 69 ] *4 The circumstances so believed and relied on by the accuser must be such as to amount to reasonable ground for belief in the guilt of the accused. The judgment proceeds: "The belief of the accuser in the guilt of the accused [No. 1], his belief in the existence of the facts on which he acted [No. 2], and the reasonableness of such last mentioned belief [No. 3], are questions of fact for the jury, whose findings upon them become so many facts, from which the judge is to draw the inference, and determine whether they do or do not amount to reasonable and probable cause. This, also, is an in- ference of fact, not of law, as is sometimes erroneously supposed; and the judge is to draw it from all the circumstances of the case " Uster v. Ferryman, per Lords Chelmsford and Westbury, REASONABLE CAUSE. * 71 If reasonable cause consists of Nos. 1, 2, 3, and 4, and Nos. 1, 2, and 3 are for the jury, nothing is left for the judge except No. 4. I cannot, as I have stated already (gr), understand what mean- ing No. 4 can have except what has already been included in Nos. 1, 2, and 3. I must, therefore, admit that I cannot imagine a case in which the jury would find everything that Mr. Justice Hawkins would leave to them in favour of the plaintiff, and the judge would hold that there was no want of probable cause, unless the judge and jury took directly opposite views of the case. The importance of Hicks v. Faulkner was greatly * dimin- [ * 70] ished by the decision, about the same time, of Abrath v. N. E. Bail. So., 11 Q. B. D. 79; ib. (C. A.) 440; and (H. L.) 11 App. Cas. 247; and 52 L. J. Q. B. 352; ib. (C. A. 620; and (H. L.) 52 L. J. Q. B. 457 (1883-5), which appears to me to establish definitely the boundary between the provinces of the judge and the jury as to reasonable cause, as well as determining some other points pre- viously more or less in dispute as to the law of actions for malic- ious prosecution. The action was tried at Durham Summer Assizes, 1882, before Mr. Justice Cave. The folio ving is the statement of the facts set out in the report of the hearing in the Court of Appeal ^1 Q. B. D. 441):— "On the 10th of September, 1880, a collision occurred at Ferry Hill Station, on the defendants' railway, and one M. McMann al- leged that he had thereby sustained injuries. McMann was at- tended by the plaintiff, G. A. Abrath, a doctor of medicine and surgery, and McMann brought an action against the defendant to recover damages. The action by McMann stood for trial at the Northumberland Summer Assizes, 1881; but it was settled by the defendants paying to the plaintiff McMann 725Z. damages and 300Z. costs. After the settlement, the directors of the defendants' company received certain information from Rayne, a surgeon, who was the medical adviser of the railway company in reference to accidents, and who was authorised to employ detectives on be- half of the company. The directors thereupon employed a solicitor named Dix to see certain persons and take their Ftate- ments. Some of these * person were relatives of Mc- [ * 71 J Mann, and others were well acquainted with him, and (ff) Vide ante, p. 5.5. 5 PKOSECUTIOKS, ETC. 65 *72 MALICIOUS PROSECUTIONS. their statements, if true, showed that a fraud had been perpe- trated on the defendants; that McMann had not been seriously- injured in the collision; that the injuries of which McMann had complained had been wilfully produced by the present plaintiff, Dr. Abrath, with the consent of McMann, for the purpose of getting money from the defendants. These statements were submitted to the directors of the defendants' company, who thereupon or- dered that the opinion of counsel should be taken, and counsel advised that there was a good case for prosecuting a charge of conspiracy against McMann and Abrath, his medical adviser. Two eminent medical men were of opinion that the case of the alleged injuries to McMann was an imposture. Therwipon the defendants caused an information to be laid before justices against the plaintiff, Dr. Abrath, on a charge of conspiracy to cheat and defraud the defendants. He was committed for trial and was tried in January, 1882, and acquitted . . . He thereupon com- menced the present action, and at the trial certain witnesses were called who were acquainted with McMann, and gave evidence to "show that his injuries were real and not feigned, and these wit- nesses had not been seen en behalf of the defendants before they, instituted proceedings against the plaintiff. It was also shown that the persons on whose statements the directors had ordered the prosecution to be instituted against the plaintiff were of bad character, and one of them had been convicted several [ * 72 ] times, and also their * own statements, if true, established that they were accomplices with the plaintiff and McMann in the conspiracy. For the defendants it was not disputed that the plaintiff was innocent of the conspiracy; but it was contended that they were justified in instituting the prosecution upon the faith of the statements laid before the directors." These being the principal facts, Cave, J., addressed the jury, in the course of his summing up, as follows: — "I think the material thing for you to examine about is, whetber the defendants in this partiofular case took reasonable care to inform themselves of the true facts of the case. That, I think, will be the first question you will have to ask yourselves — did they take reasonable care to inform themSelves of the true facts of the case ? Because, if people take reasonable care to in- form themselves, and notwithstanding all they do, they are mis- led, because people are wicked enough to give false evidence, 66 REASONABLE CAUSE. * 74 nevertheless they cannot be said to have acted without reasonable' and probable cause; with regard to this question, you must bear in mind that it lies on the plaintiff to prove that the railway com- pany did not take reasonable care to inform themselves. The' meaning of that is, if you are not satisfied whether they did or not, inasmuch as the plaintiff is bound to satisfy you that they' did not, the railway company would be entitled to your verdict on that point. Then there is another point, and that is, when they went before the magistrates, did they honestly believe in the case which they laid before the magistrates? If I go before * magistrates with a case which appears to be [* 73 ] good on the face of it-, and satisfy the magistrates that there ought to be a further investigation, while all the time I know that the charge is groundless, then I should not have rea- sonable and probable cause for the prosecution. Therefore, I shall have to ask you that question along with the others, and according as you find one way or the other, then I shall tell you presently, or I shall direct you, whether there was or was not reasonable and probable cause for this prosecution. If you come to the conclusion that there was reasonable and prob- able cause — that is, that the defendants did take care to inform themselves o^ the facts of the case, and they did honestly believe in the case which they laid before the justices, then I shall tell you, in point of law, that this amounts to reasonable and prob- able cause; and in that case the defendants will be entitled to your verdict ; if , on the other hand, you come to the negative conclusion — if Tou think that the defendants did not take reasonable care to inform themselves of the facts of the case, or that they did not honestly believe the facts which they laid before the magistrates, then in either of those cases you will have to ask yourselves this further question, Were they in what they did actuated by malice — ^ that is to say, were they actuated by some motive other than an honest desire to bring a man whom they believed to have offended against the criminal law to justice? If you come to the conclu- sion that they did honestly beli-^ve that, then they are entitled, again, to your verdict; but *if you come to the [*74] conclusion that they did not honestly believe that, but that they were actuated by some indirect motive other than a sincere wish to bring a supposed guilty man to justice, then the plaintiff is entitled to your verdict; and then it will become *75 MALICIOUS PROSECUTIONS. necessary to consider the question of damages." The learned judge, after commenting upon the evidence, proceeded: " Now, gentlemen, these are the circumstances which, I think, point to the question of reasonable care having been taken: Did they take, or did they not take, reasonable care in informing them- selves of the true facts of the case ? As I have said just now, the plaintiff has to satisfy you that they did not; if you are satisfied that they did, you ought to answer that question in favour of the defendants. If, however, you are satisfied that they did not take reasonable care, then you must answer it for the , plaintiff." In conclusion, Mr. Justice Cave left three questions to the jury. These were: — - First, did the defendants take reasonable care to inform them- selves of the true state of the case ? Secondly, did they honestly believe the case which they laid before the magistrates ? Mr. Justice Cave directed the jury that if they answered both these questions in the affirmative, that would be a verdict for the defendants; but that if they answered one or both in the nega- tive, they'mnst answer the third question — " Were the defendants actuated by any indirect motive in preferring the [ * 75 ] charge ? " and * that if they answered either or both of the first two in the negative, and the third in the affirm- ative, the verdict would be for the plaintiff, and they must assess the damages. They answered the first two questions in the af- firmative; Mr. Justice Cave held that this amounted to a ver- dict for the defendants, and gave judgment for the defendants accordingly. I maintain that this came practically to the same thing as leav- ing to th^ jury the two questions whether there was reasonable cause, and whether there was malice. Mr. Justice Cave expressly said that if the jury found that the defendants did not take rea- sonable means to inform themselves of the true facts of the case, and acted maliciously, that woiild be a verdict for the plaintiff. He did not himself decide upon the evidence that no want of rea- sonable cause was shown, as, if I may respectfully say so, the judges used to in the earlier cases, and did in I/tsier v. Perryman. He accepted the decision of the jury that the means of informing 68 REASONABLE CAUSE. * ^^ themselves adopted by the defendants -were reasonable, and I can- not doubt that he would equally have accepted it if it had been the other way. Can any one imagine a case in which a judge, after leaving to the jury the questions left in this case, and being informed that in their opinion the means of informing himself adopted by the defendant were not reasonable, or that the defend ant did not honestly believe in his case, would hold that no want of reasonable cause had been shown, or vice vers&f The great im- portance of Mr. Justice Cave's summing up, and the ques- tions that he left to the jury, * consists in the fact that [ * 76 ] they are practically applicable to every action for malicious prosecution, and that the Court of Appeal and the House of Lords decided in effect that the summing up was good law, and that the questions left to the jury were the right questions to leave to them. I may add that, through the kindness of my friend Mr. MacCly- mont, I have had an opportunity of reading the short-hand report of the summing up, which was included in the printed case used in the appeal to the House of Lords. It contains simple examples, suggested by the judge, of what obviously would, and what ob- viously would not, be reasonable means of informing himself as to the true facts of the case adopted by the prosecutor, and it ex- pressly asserts, again and again, that the question whether the means of informing themselves in this case adopted by the defend- ants were reasonable or otherwise, is the principal question which the jury have to decide. After judgment for the defendants at the trial the plaintiff ob- tained a rule in the Divisional Court for a new trial on the ground of misdirection. After argument (11 Q. B. D. 79) the rule was made absolute by Grove and Lopes, JJ., on the ground of misdi- rection as to the burden of proof, a question which is discussed in a subsequent chapter (h). The defendants appealed to the Court • of Appeal (11 Q. B. D. 440), where the judgment of the Divis- ional Court was reversed, and that of Mr. Justice Cave re- stored. As in the Divisional Court, the * question prin- [ * 77 ] cipally argued was that of the burden of proof; but the judgments incidentally contain the proposition that the questions which Cave, J., left to the jury were proper questions to leave to them. At the hearing of this appeal it was ordered by the Court, (A) Vide post, p. 104. 69 *78 MALICIOUS PROSECUTIONS. with the consent of the parties, "that the plaintifP should be at liberty to appeal from the judgment of Mr. Justice Cave, and to raise the questions whether there was reasonable and probable cause lor instituting the prosecution, and whether the judgment had been rightly entered by Cave, J., on the findings of the jury." Lord Esher, M. E., said (at p. 451) : " . . if the direction of Cave, J., to the jury was simply that it was a necessary part of the ques- tion whether there was a want of reasonable and probable cause for instituting the prosecution against the plaintiff, that it should ,be decided whether reasonable care had been taken by the defend- 'ants to inform themselves of the true state of the case, and that the burden of proving that minor proposition, as well as the whole proposition, lay upon the plaintiff, it is a direction which cannot be impeached." In direct reference to the plaintiff's appeal against the judgment, the Master of the Rolls summarized the evidence in a few lines, and said that upon that, and upon the findings of the jury that the defendants had taken reasonable means to inform themselves of the true state of the case, and had honestly believed the case they laid before the magistrates, he was ^^tisfied that no want of reasonable cause had been proved. The substance of the judgments in the House of Lords [ * 78 ] * appears to me, as I have already stated, to be that the case was rightly left to the jury. In order to support tjiis contention I reproduce here the. whole of the judgments as reported, except the greater part of Lord Uramwell's, which con- sists of an elaborate declaration that a corporation cannot be guilty of malice — a subject dealt with in a subsequent chapter (i) —and the first paragraph of Lord Fitzgerald's, ia which his lort' ship refers to the same topic: — (11 App. Cas. at p. 249). "Eakl of Selbokne: — ^My Lords, the argument of the learned Qounsel for the appellant has cleared up any difficulty which there might have been as to the real grounds on which we should de- cide this case. The question is really one of the weight of evi- dence, and nothing else. The burden of satisfying the jury that there was no reasonable and probable ground for the prosecution lies upon the plaintiff. It is not now seriously disputed that it does. "The learned judge having left two questions of fact to the jury, they found, first, that proper care had been used by the (i) Vide post p. 91. 70 REASONABLE CAUSE. * 80 prosecutors to inform themselves of the facts; and secondly, that the prosecutors honestly believed the case which they laid before the magistrates. "In my judgment the learned judge did not misdirect the jury, and the Court of Appeal were right in their view of the law, and the only question is, is there any ground for saying that upon the weight of evidence the jury miscarried, and that a new trial oaght to be directed ? Speaking for myself, I cannot imagine a more * hopeless case in that point of view. [ * 79 ] The railway company had to determine whether or not they would institute this prosecution; and the evidence given by the gentleman who was acting for them in the matter is, to my mind, as completely sufficient to negative the idea of the absence of reasonable and proper care on the part of the company to in- form themselves of the facts as anything for the purpose of an action of this sort can be. "The statements of certain persons were obtained, carefully con- sidered, and laid before counsel, and counsel advised a prosecu- tion upon those materials.' A prosecution having been instituted, it was thought by the magistrates that the preponderance of evidence was such that they ought to send the case for trial. Taking the evidence as it was presented to the railway company, to those who advised them, and to the magistrates, it was a body of evidence which, if believed, tended to prove the charge, and justified those who believed it in making the charge in perfect good faith. How it can be said that taking such a body of evidence as that, without the suggestion, much less proof, of the use of any fraudulent or improper means to obtain it, shows a want of reasonable care on the part of the company to inform them- selves about the facts, I cannot imagine. I cannot conceive better prima facie evidence of care in that respect." [His Lordship than discussed the evidence in detail and con- cluded thus . — ] "So far from thinking that there is a preponderance of * evidence against reasonable and probable cause, my [ * 80 ] doubt is rather on the other side, whether, on the whole evidence, there was really anything to go to the jury in favour of that conclusion. I move your Lordships that the order ap- pealed from be affirmed and the appeal dismissed with costs. ' As to the defence of submitting a case to counsel, see note to page 43. 71 * 81 MALICIOUS PROSECUTIONS. "LoBD Watson:— My Lords, I am of the same opinion. I have BO doubt that the learned judge rightly directed the jury, and that there is nothing to show that the defendants acted without reas- onable or probable cause. The authorities cited by Mr. MacCly- mont ia the course of his able argument do not form, in my opinion, any exception to the ordinary rule that the burden of proof lies upon the plaintiff. Some of them establish that a slight amount of evidence may be enough to launch the plaintiff's case, when the whole circumstances of the case are in tTiemselves suffi- cient to raise a presumption of want of reasonable care on the part of the prosecutor, but that is not the case here. "As to the finding of the jury being contrary to the evidence, I concur in the observations which have been made by the noble and learned Earl. I entertain considerable doubt whether there was any evidence to go to the jury. It is unnecessary to deter- mine tbat point; but of this I feel persuaded from the argument which we have heard, that looking at the evidence which was be- fore the jury, they could not honestly and fairly have given any, other verdict. "Lord Bkamwell : — , But assuming that that difficulty [the question whether [ * 81 ] * the action lies against a corporation] did not exist, there is no absence of reasonable and probable cause in this case. I doubt very much whether Cave, J., need have left to the jury the question whether reasonable care had been used. I doubt it very much indeed. I doubt very much whether he might not — I will not say ought hot — have said to the jury, 'If you are of opinion that these directors honestly believed the statements that were laid before them, and honestly acted upon the opinions that were given to them, there was not only no absence of reas- onable and probable cause, but it existed in abundance.' How- ever, he did put the question, and the jury did answer it; and it does seem to me, I must say, to be one of the strongest cases of an unfounded action that was ever brought, even for malicious prosecution. "Lord Fitzgerald: — To deal with the case as it really comes before us, I do not enter- tain any doubt that the issue upon the question of probable cause, as well as upon the question of malice, lies upon the plaintiff in this sense, that the plaintiff is bound to offer evidence sufficient, 72 REASONABLE CAUSE. * 83 if uncontradicted, to sustain both these issues on his behalf. At the close of the plaintiff's case, supposing it had closed there, and no evidence had been offered directly on behalf of the defendants, was there such a case upon the two issues as that it could be said that there was evidence to sustain the issues for the plaintiff ? I so far differ from the opinion of my noble and learned friend that I think there was evidence upon both issues if un- controverted, * from which the jury might have found, [ * 82 ] acd the judge who presided, drawing the proper inference from the facts himself might have found, in the plaintiff's favour It is unnecessary for me to point out in detail what that evidence was. But upon the whole of the evidence produced on both sides the learned judge put two questions — and, in my opinion, two very proper questions — to the jury for the purpose of in- forming his mind as to what was the 'proper inference for the judge to draw upon this very question of the presence or ab- sence of reasonable cause. "The jury answered the two questions in the defendant's favour; and though possibly I myself might have come to a dif- ferent conclusion upon the first question, I cannot say that the verdict was an unreasonable one, or so far against the weight of evidence that it ought not to stand. " As to the alleged misdirection, I do not think that the sum- ming up of the learned judge, taken as a whole, and together with the questions he put, could have misled the jury." I can put no other construction upon the whole of the judg- ments in this case than that every judge who tries an action for malicious prosecution is entitled — to put it at the lowest — to sum up in the sense of the passages quoted above from the sum- ming up of Mr. Justice Cave, and to put to the jury the two questions which Mr. Justice Cave devised, namely — 1. Did the defendant take reasonable care to inform himself of the true state of the case ? * 2. Did he honestly believe the case he laid before [ * 83 ] [whatever the tribunal may have been] f These two seem to me to cover the whole ground of reasonable cause. If the jury answer them both "yes," the judge will be justified in holding that want of reasonable cause has not been proved. If the jury answer either question "no," the judge will be justified in holding that it has. 73 *83 MALICIOUS PROSECUTIONS. Some judges have already availed themselves of this precedent. I do not see why it should not become invariable, except in cases ■where the judge prefers to decide the question of reasonable cause for himself in the old-fashioned way. u MALICE A QUESTION FOR A JURY. * 84 * CHAPTER VIII. [*84J MALICE A QUESTION FOR THE JURY. Thekb has never been any doubt that the question whether a prosecution was malicious is one solely for the jury.' In Mitchell V. Jenkins, 5 B. & Ad. 588 (1833), which was an action for mali- cious arrest, Taunton, J., directed the jury that there the defend- ant's conduct amounted to malice in law, and that they must find for the plaintiff. The Court of King's Bench held this to have been a misdirection, as the question of malice was one al- together for the jury. Parke, J., observed that the jury, when directed that there was no reasonable cause, might infer from that that there was malice. The rule is so well ascertained that it is not necessary to multiply authorities, but see Chapter V., on Evidence of Malice. ' The question of malice is for the jury: Schofield r. Ferrars, 11 Wr. (Pa.) 195 (1864), Strong, J.; Boyd v. Cross, 35 Md. 194 (1871 ); Stewart v. Sone- born, 8 Otto, 187-202 (1878), Strong, J. 75 • 86 MALICIOUS PROSECUTIONS. [*85] *chapti:r IX. WHO ARE LIABLE TO BE SUED. The old action of conspiracy could not be brought against one person only (22 As. 77 (1304). This was one of the reasons for the introduction of the action on the case, which was the early form of the action for malicious prosecution. It lay, as an action now lies, sgainst any private prosecutor, with a few simple ex- ceptions. I know of no instance in which any person has been sued for a prosecution ordered by any officer of state, and I doubt if such an action would lie. Prosecutions may be directed by a Secretary of State, the Attorney-General, or the Director of Public Prosecutions, and I know of no direct authority as to whether or not an action for malicious prosecution would lie against any of these officers for what they had done in their offi- cial capacities. No action lies against a grand juror for finding a bill (22 As. 77 (1304); Floyd v. Barker (a), 6 Eep. XII. 23 (1608), nor against a judge or justice of the peace for anything done openly in Court, or for anything done out of Court in the discharge of his duty {Floyd v. Barker, sup.). In Girlinton v. Bitfield, 1 Vent. 47 (1669), it was proved that the defendant was a justice [ * 86 ] of the *peace who had " procured some as witnesses to appear against the plaintiff, and his own name was en- dorsed on the indictment to give evidence." The Court of King's Bench held that the action did not lie, because the defendant, as a justice, was bound to cause any e'ydeace that he knew of to be given. It seems probable that no action for malicious prosecution will lie against an officer in the naval or military service of the Crown for what he does abroad in^ time of war, or at the suit of anyother person in such service for anything done by him as such officer when both are subject to the articles of war. ' Barwis v. Keppel, (o) This case was decided in the Star Chamber, temp. Jae. I. T6 WHO ARE LIABLE TO BE SUED. * 87 2 Wils. 314 (1766); Johnstone y. Sutton, 1 T. R. 493 and 510 (1786) : See also Dawkins v. LordPaulet, L.« R. 5 Q. B. 94; and 39 L. J. Q. B. 53 (1869), and the cases there cited. It is doubtfal whether a corporation aggregate can be sued for malicious prosecution.' There is authority both ways, but not much of it, the question having been argued and determined once only, by Mr. Justice Fry on further consideration (6). This is also the only occasion that I am aware of in which damages have been recovered against a corporation for this wrong. An acecunt of the decisions bearing on the point follows. It may be ob- served that no difficulty arises about false imprisonment, as that tort includes a trespass. In Stevens v. The Midland Counties Rail. Co., 10 Exch. 352 (1854), a man in the employ of the company had *prosecuted the plaintiff without their orders, and the [ * 87 ] plaintiff had obtained a verdict for lOOZ. against both the company and their servant. As against the company the Court of Exchequer set aside the verdici Alderson, B., said: "It seems to me that an action of this kind does not lie against a corpora- tion aggregate; for in order to support the action, it must be shown that the defendant was actuated by a motive in his mind, • (i) Edwards v. M. Rail. Co., 6 Q. B. D. 287; Vide post, p. 88. ■ ' As in the case of deceit and for a similar reason, it has been doubted if an action will lie against a corporation, for malicions prosecution. A recent English case rules that if the wrongful act was done by a .servant of the corporation in the course of his employment in the company's inter- est, such an action will lie: Edwards v. R. E. Co., 6 Q. B. D. Fr. 7 J. (1880). The recent opinion of Lord Bramwell in Abrath r. N. E. R. Co., as pointed out by his learned colleagues was extra-judicial: (Lord Fitzgerald, 11 Ai)p. Cas. 244, and Lord Selbome at 256.) In the American Law, it is universally held that case for malicious pros- ecution will lie against a corporation: Goodspeed v. Bank, 22 Conn. 530; Fentoni). Machine Co., 9 Phila. (Pa.) 189; Williams v. Ins. Co., i)7 Miss. 759; Wheless v. Bank, 1 Bax. (Tenn.) 469; Bank v. Bank, 4 Mo. App. 505; Vance ». R. R. Co., 32 N. J. Law 334; Copley v. Grover, 2 Woods, 494 (1875), Bruce, J.; Ricord v. R. R- Co., 15 Nev. 167; Reed v. Bank, 130 Mass. 443; Morton v. Ins. Co., 34 Hun. 366; Hussey r. Norfolk R. E. 98 N. C. :'A (1887), Davis, J.; Williams v. In^ Co., 34 Amer. Rep. 494 and note; Krule- vitz i: R. E. Co., 5 N. E. Rep. 500; R. R. Co. v. Quigley, 21How. 202 (1858); Hillard on Torts, 322. Two cases may be found in our report books subsequently overruled hold- ing that the action will not lie against a corporation because it cannot be guilty of a malicious intent: Gillett r. E. E. Co., 55 Mo. 315; overrnlcd by Boogheri;. Assn., 75 Mo. 319, and Owsley v. R. R. Co., 37 Ala. 560, ex- pressly overruled by Jordon v. R. R. Co., 74 Ala. 85 (1883), Brickell, C. J. As to the liability of a municipal corporation: Brown v. City, 90 Mo. 377 (1886), Ray, J. As to liability of a corporation for torts see the able note to Hussey ■;;. K. E., 2 Amer. St. Rep. 317; E. B. Co. v. Harris, 122 U. S. 597 (1887). 77 * 88 MALICIOUS PROSECUTIONS. and a corporation has no mind." Piatt and Martin, BB., both thought that there was no evidance of a prosecution by the com- pany, but both expresgly declined to give any opinion as to whether such an action could be maintained against a corpora- tion. Walker v. S. E. Rail. Co., L. R. 5 C. P. 640; 39 L. J. C. P. 346 (1870), was an action against a railway company for false im- prisonment and malicious prosecution. The Court of Common Pleas held that there was reasonable cause for the prosecution, and no point was raised as to whether the action lay. The Bank of New South Wales v. Owston, 4 Ap. Cas. 270 (1879), was an appeal by the defendant company to the Privy Council. The action was for a malicious prosecution, alleged to have been instituted by the acting manager of the bank. The judge told the jury "that it was to be inferred, from Mr. Wilkinson's posi- tion as manager, that he had sufficient power under the circum- stances for directing a prosecution." The colonial Court dis- " charged a rule for a new trial, obtained on the ground, among others, that this was a misdirection. The Judicial Com- [ * 88 ] mittee made the rule absolute, * after some hesitation as to whether they would not nonsuit, because it appeared to them, from all the evidence, that instituting prosecutions was outside the scope of the acting manager's employment, and that' there were no circumstances of instant urgency, such as might give him authority. The question whether the action lay does not appear to have been raised. In Edwards v. The Midland Bail. -Co., 6 Q. B. D. 287; 50 L. J. Q. B. 281 (1880), the action was tried at the Stafford Assizes be- fore Fry, J., the facts being that a detective in the the employ- ment of the defendant company had prosecuted the plaintifP for theft. Fry, J., upon a verdict for the plaintiff, reserved two ques- tions for further consideration, — 1st, whether an action for mali- cious prosecution lay against a corporation, and 2d whether the employment of police was an act within the scope of the com- pany's incorporation. The judgment was as follows: — " I am asked to decide this question, as it were, by way of re- hearsal, as it is intended to carry it to a higher tribunal. [Un- fortunately this intention does not seem to have been carried into effect. ] I must therefore texpress my opinion upon it. The ques- tion is, whether a railway company can be made liable in an action 78 WHO AEE LIABLE TO BE SUED. "90 for malicioua prosecution. The malice, in order to found such an action, need not be express malice; but it may be implied from the wrongful action without just cause or excuse. Now it is a maxim that a corporation has no mind, no mens rea there- fore they cannot be guilty of malice. Can they, there- fore, escape the consequences * of an action which in' the [ * 89 ] case of an ordinary person would be held to imply ma- lice ? Mr. Hill suggests to me the case of partners who would be held to be individually liable for an action maliciously instituted by the partnership, and the subsequent incorporation of the part- nership into a company. Can it be said that the company, con- idsting of the same persons as before, is not to be made liable for the same wrongful action? It would be strange if it were so, though I must not forget that the individuals who directed such a wrongful action on the part of the company would be person- ally liable (c). " Those who deny that the company can be made liable rely principally on Baron Alderson's judgment in Stevens v. Midland Counties Rail. Co. (d), where he held that in order to support such an action it must be shown that the defendant was actuated by a motive in his mind, and that a corporation has no mind. The two other judges, Barons Piatt and Martin, did not agree (e) with Baron Alderson's reasons, but decided in the company's favour on other grounds, "Has Baron Alderson's opinion, which in that case stands alone, been folio wd by other judges? In Rex v. City of Lon- don, which is cited in a note to Whitfield v. South East- ern Rail Co. (E. B. & E. 122), it was held * on demurrer [ * 90] that an action would lie against the Corporation of the City of London for maliciously publishing a libel ; and though that deci- sion is not of the greatest weight, being affected no doubt by political as well as legal considerations, still it was assented to by Chief Justice Saunders, an able and experienced judge. In Yarborough v. Bank of England (16 East, 6), Lord Ellenbor- ough referred to an earlier case of Argent v. Dean and Chapter (e) This does not read like a considered judgment. Surely it would be not only strange, but contrary to every principle of law, if a company, sued as such, were to be held liable, in the absence of conti-act, for a wrong com- mitted by some one else before it was in existence. (d) 10 Ex. 352; vide ant", p. 87. (e) This is strictly accurate. They did not disagree. 79 *91 MALICIOUS PBOSECtlTIONS. of St. PauVs (16 East, 7, n.), and said that the instances of ac- tions against corporations for false returns to writs of manda- mus must be numberless. Again, in Whitfield v. South Eastern, Rail Co. (E. B. & E. 121), Lord Campbell says that 'the ground on which it is contended that an action for libel cannot possibly be maintained against a corporation aggregate fails,' and ' con- sidering that an action of tort and trespass will lie against a cor- poration aggregate, and that an indictment may be preferred against a corporation aggregate both for commission and omis- sion, to be followed up by fine, though not by imprisonment, there may be great difficulty in saying that, under certain circum- stances, express malice may not be imputed to and proved against a corporation.' In Green v. London General Omnibus Co. (7 C. B. N. S. 290, at p. 301), it was held that a corporation aggregate may be liable to an action for intentional acts of misfeasance by its servants, provided they are sufficiently connected with the scope and object of its incorporation. There Chief Justice Erie says, 'The ground of the demurrer is, that the declaration [ * 91 ] charges a wilful and intentional wrong, and that the * de- fendants, being a corporation, cannot be guilty of such a wrong, and therefore the action will not lie.' In the case before me, it is similarly argued that a corporation cannot act mali- ciously or intentionally, because malice and intention imply mind. Chief Justice Erie continues, 'The doctrine relied on, that a corporation having no soul cannot be actuated by a mali- cious intention, -is more quaint than substantial.' In other words, the ratio decidendi of Baron Alderson was in this case disre- garded; and as his decision has not been followed in English Courts, I am at liberty to decide in conformity with the later de- cisions; and I hold, therefore that the action will lie in this case. "The next question is, was this act done within the scope of the incorporation of the company f I hold that it was; the com- pany may restrain the commission of crime on their railways ; and the observations made in Goff v. Great Northern Rail. Co. (30 L. J. Q. B. 152) show that a company so acting may be responsible for an illegal arrest; I give judgment, therefore, for the plaintiflF, with costs." In Abrath v. The North Eastern Bail. Co., 11 Ap. Cas. 247 (1886), the question was not argued, but the judgment delivered by Lord Bram^ell was almost wholly devoted to it. I therefore 80 "WHO ARE LIABLE TO BE SUED. * 93 reproduce it here, all except the concluding paragraph, which dealt with the other aspects of the case (/). " {g) My lords, I am of opinion that no action for a * malicious prosecution will lie against a corporation. I [ * 92] take this opportunity of saying that as directly and per- emptorily as I possibly can; and I think the reasoning is demon- strative. To maintain an action for a malicious prosecution it must be shown that there was an absence of reasonable and probable cause, and that there was malice or some indirect and illegitimate motive in the prosecutor. .A? corporation is incapable of malice or of motive. If the whole body of shareholders were to meet, and in so many words to say, .'prosecute so-and-so, not because we believe him to be guilty, but because it will be for our interest to do it,' no action would lie against the corporation, though it would lie against the shareholders who had given such an unbecoming order. If the directors, even, by resolution at their board or by order under the common seal of the compimy, (I am putting the c^pe plainly, in order that there may be no mistake about it,) were maliciously, with a view of putting down a solicitor who had assisted others to get damages against them, to order a prosecution against that man, if they did it from an in- direct or improper motive, no action would lie against the corpo- ration, because the act on the part of the directors would he ultra vires; they would have no authority to do it. They are only agents of the company, the company acts by them, and they have no authority to bind the company by ordering a malicious prose- cution. "I say, therefore, that no action lies, even if you assume the strongest case, namely, that of the very * share- [ * 93 ] holders directing it, or the very directors ordering it, be- cause it is impossible that a corporation can have either malice or motive; and it is perfectly immaterial that some subordinate officer or individual or individuals of the company have such malice or motive. In the case which I put, an action would lie against the directors personally who had ordered an improper prosecution. It may be that no action would lie against any subordinate who had malice and who had not ordered or caused or procured the prosecution; because, although the two ingredients II. f) Vide ante, p. 80. ) 11 Ap. Cas. at p. 250. 6 PEOSECUTIONS, ETC. 81 * 94 MALICIOUS PROSECUTIONS. existed which are necessary for the niaintenance of such an action, that is to say, malice and the absence of reasonable and probable cause, yet in the case which I surmise the man would not be a prosecutor; and unless you find the absence of reasonable and probable cause and malice in him who is the prosecutor, an action is not maintainable. It is not enough, therefore, to show that there was an absence of reasonable and probable cause, and that the subordinate had malice; not that I for a moment suggest that that is the case here. " In my opinion, this is not merely what is called a technical point — although if a point were untechnical it would be -very objectionable. This is substantial objection; because every one, or every counsel and solicitor listening to me, knows that the only reason why a railway company is selected for an action of this sort is, that a jury would be more likely to give a verdict against a company than against an individual. Everybody [ * 94 ] knows it, and perhaps there is a sort of hope of * con- fusion; it is said, 'The man was ^innocent; somebody ought to be punished for it; here is a railway company; there was an improper motive;' and so there is a jumble; the case gets before a jury, and a railway company is exactly the party to have damages awarded against it. If ever there was a necessity for protecting persons it is in an action for malicious prosecution, and for two reasons. First of all, the prosecutor is a very use- ful person to the community. We have something in the nature of a public prosecutor, bht everybody knows that the greater number of prosecutions in this country are undertaken not by the State but by private persons, or, as in this case, corporations. "One may venture to quote Bentham, even upon this matter. He said that laws would be of very little use if there was no in- formers, and that it is necessary, for the benefit of the public, that people when they prosecute, and prosecute duly, should be protected. And there is an additional reason. A man brings an action for a malicious prosecution; he gives evidence which shows, or goes to show, that he is innocent. You may tell the jury over and over again that that is not the question, but they never or very rarely, can be got to understand it. They think that it is not right that a man should be prosecuted when he is innocent, and in the end they pay him for it. It is, therefore, all-important that these actions should not be permitted to be 82 WHO ARE LIABLE TO BE SUED. * 96 brought against persons or bodies or others who are not properly liable in respect of them. " It may be said, ' Well, but this is rather hard upon * a man who has been prosecuted and improperly prose- [ * 95 ] cuted.' That is to say, the corporation is innocent, but its officers are guilty. But the same thing happens in the case of an individual prosecutor. A man receives false information ; he prosecutes upon that information. The person who gave him the information is not liable, because he did not prosecute. He may be liable for the untrue statement, because it may be slan- der, in the same way as he would be liable if he charged an indict- able offence against a person; or possibly he may be liable for having procured the prosecution; and it may be that in such a case as this some of the people employed by the company were actuated by an indirect motive. I do not say they were — it is impossible to say so — but what I say is, that it is no harder upon a man that he has no remedy against a public company who has prosecuted him, when the servants of the company have been malicious, than it is that there is no remedy against any individ- ual man who has prosecuted, he having no malice, but somebody who gave him information having malice. "It is said that this is an old-fashioned sort of notion. It is; but this opinion is one that I have entertained ever since I have known anything about the law; and though it is an old-fashioned one, I trust that it is one which will not die out, for the reasons which! have given. But it is said 'But a variety of actions have been allowed against corporations which did not formerly ex- ist.' I deny it. It is certain that a corporation may * order [ * 96 ] a thing to be done which is a trespass; because there the act of those who act for the corporation is not ultra vires. For instance, take the case of false imprisonment. A railway company gives somebody power to take up persons who it believes are doing some wrong to the company. If a person is so authorized, that is an authority which may be unreasonably exercised. You can- not give an authority maliciously to prosecute, but you may give an authority to take up persons who are cheating a railway com- pany. If that person to whom authority is given makes a mis- take and takes up a person who is not cheating, it may in such a case be said properly to be the act of the company, and they are properly liable. But in that case there is neither malice nor mo- 83 * 98 MALICIOUS PROSECUTIONS. tive in question. So also they may be liable for the publication of a libel. That unfortunate word 'malice' has got into cases of actions for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive. There- fore, the case is not the same as where actual and real malice is necessary. Take the case where a person may make an untrue statement of a man in writing, not privileged on account of the occasion of its publication ; he would be liable although he had not a particle of malice against the man. So would a corpora- tion. Suppose that a corporation published a newspaper, or printed books, and suppose that it was proved against them that a book so published had been read by an officer of the [ *97] corporation, in order to see whether it * should be pub- lished or not, and that it contained a libel; an action lies there, because there is no question of actual malice or ill-will, or motive (ft). " For these reasons, which I dwell upon at no greater length, more particularly as Mr. MaeOlymont did not cite any cases upon this point, or go into it at all, I am clearly of opinion that this action does not lie against this company." At the conclusion of the judgments. Lord Selborne, referring to the question whether a corporation can be answerable for malicious prosecution, said: " The importance of that question would certainly have led me, before I could arrive satisfactorily at an opinion of my own upon it, to desire to hear it argued. It has not been argued at your lordships' bar ... I do not think that your lordships' decision in the present case can properly be regarded as determining that question." It seems, upon the whole, indisputable that the question is still open, which, considering the importance and prevalence of cor- porate commercial undertakings, is rather remarkable. An action for malicious prosecution lies against a person who is bound over to prosecute, although a judge or magistrate ord- ered the prosecution and bound the defendant over to prosecute of his own motion. Fitzjohn v. Mackinder, 9 C. B. [ * 98 ] N. S. 505; and 30 L. J. C. P. * 257 (1861). As to this, however, see Chapter II. The case of Fitzjohn v. Mac- (h) It seems to follow from this that, in Lord Bramwell's opinion, a cor. poration could not, under any circumstances, be held liable for a libel pub- lished by them on a privileged occasion. I am not aware that the point has ever been raised. 84 WHO ARE LIABLE TO BE SUED. * 98 kinder appears to me to conflict in some degree with the old case of Chambers v. Taylor, Cro. Eliz. 900 (1602), but would no doubt be held to be of superior authority. At the same time, Fitzjohn V. Mackinder can hardly be considered as a thoroughly satis- f actory and conclusive precedent, for various reasons given already in Chapter II. 85 99 MALICIOUS PKOSECUTIONS. [*99] * CHAPTER X. FAVOTJEABLE TEEMINATION OF PROSECUTION— EVIDENCE. In order to recover damages for malicious prosecution the plain- tiff must prove that the prosecution has come to an end, and has been decided in his favour, unless the proceeding against the plaintiff was ex parte and he could not be heard. There are sev- eral decisions as to what constitutes a termination of a prosecu- tion in favour of the accused. "We have seen already that the writ of conspiracy contained an allegation necessary to be proved, that the plaintiff had been indicted and acquitted; and the inapplicability of this procedure to cases where the grand jury had thrown out the bill was one of the distinctions between the action in conspiracy and the. action on the case. It was always the law that in an action on the case or for malicious prosecution the acquittal or other favourable termina- tion must be pleaded, and that a declaration not containing the allegation was demurrable.' Arundel v. Tregono, Yelv. 116 ' In all actions for malicious prosecution whether by indictment, arrest, attachment, or suing out a commission of bankruptcy, it must be alleged in the declaration that the proceedings are legally at an end: Davis v. Clough, 8 N. H. 157; Heyward v. Cuthbert, 4 McCord, 354; Harden v. Borders, 1 Ired. Law, 143; McWilliams v. Hoban, 42 Md. 57 (1874), Bowie, J. ; Potter v. Cas- terline, 12 Vroom. 202 (1879), "Woodhull, J. ; Severance v. Judkin, 73 Me. 376 (1882), Appleton, J.; Woodworth v. Mills, 61 Wis. 44 (1884), Taylor, J.; Barrel! v. Simonton, 2 Cr. C. C. 657; McCormick v. Sisson, 7 Cowen, 715; Gorton v. DeAngelis, 6 Wend. 421; Clark v. Cleveland, 6 Hill, 344; O'Brien V. Barry, 106 Mass. 300; and it must be alleged how it was ended: Coles v. Hauks, 3 Monroe, 208; Teague v. Williams, 3 McCord, 461; though the omission to allege either that fact or the mode would be cured by verdict: Weinberger v. Shelby, 6 W. & S. 336. A discharge on a habeas corpus is a termination: Charles u Abell, Bright. (Pa.) 131; Zebley «i. Storey, 2 Crum. (Pa.) 478 (1888), Paxson, J., contra Schoffel «. Kleinz, Bright. (Pa.) 132, n. The entry of a nol. pros, for any other reason than iTegularitj- or informality is a good termination: Woodworth v. Mills, 61 Wis. 44 (1884), Taylor, J.; Brown v. Randall, 36 Conn. 56; contra Garing v. Fraser, 76 Me. 37 (1884), Virgin, J. ; but in a criminal proceeding such entry is not sufficient without a discharge of the prisoner: Gravest. Dawson, 130 Mass. 78; Hatch v. Cohen, 84 N. C. 602. The termination may be by previous settlement: Gallagher v. Stoddard, 47 Hun. (N. Y.) 102 (18881, Martin, J.; or in a criminal pro- ceeding by a dismissal by the district attorney without trial: Kellev v. Sage, 12Kans. 109; Bell «. Matthews, 37 Id. 686 (1887); but an arrest of judgment after conviction is not a proper termination: Kirkpatrick v. Id., 39 Pa. 288. FAVOURABLE TERMINATION OF PROSECUTION EVIDENCE. * J 01 (1608); Fisher v. Bristow, 1 Dongl. 215 (1779); Morgan v. Hughes, 2 T. R. 225 (1788). In Fisher v. Bristow the roason of this was pointed out to be that, if it were not so, a plain- tiff might recover * damages for a malicious indictment, [ * 100 ] and afterwards be convicted upon it. In Whitwarth v. Hall, 2 B. & Ad. 695 (1831), it was held that a declaration in case for maliciously and without probable cause suing out a commission of bankruptcy against the plaintiff was demurrable, because it did not allege that the commission had been superseded. Castrique v. Behrens, 3 E. & E. 720 (1861) was a somewhat similar action for maliciously and without reason- able and probable cause causing a foreign Court to condemn the plaintiff's ship in rem. The declaration did not aver that the plaintiff could not, or did not, intervene, or that the judgment had been reversed. Crompton, J., delivered judgment, holding the declaration bad on demurrer, on the ground that, "if in the proceeding complained of the decision was against the plaintiff and was still unreversed, it would not be consistent with the principle on which law is administered for aaother Court, not be- ing a Court of Appeal, to hold that the decision was come to with- out reasonable and probable cause. There is no direct authority on the point, but it seems to us that the same principle . . . ap- plies where the judgment, though in a foreign country, is one of a Court of competent jurisdiction, and come to under such cir- cumstances as to be binding in this country." When the prosecution alleged to have been malicious was for misdemeanor, and the plaintiff was acquitted, he can prove his acquittal without producing a copy of the record; though if the crime of which he was * acquitted was felony, he [ * 101 ] must produce it. Morrison v. Kelly, 1 W. Bl. 384 (1762). A prisoner on his acquittal has a right to receive, on demand, a copy of the record of his acquittal.' R. v. Brangan, 1 Leach, C. C. 27 (1742). In 16 Car. II. an order was made and signed by five judges, in consequence of persons being hindered from prose- cuting by the frequency of actions for malicious prosecution, that no copy of any indictment for felony should be given at the ses- sions at the Old Bailey without special order, upon motion made ^ In North Carolina the plaintiff cannot recover in case for malicious prose- cution withont producing the record of his acquittal: Williamst;. Woodhouse, 3Dev. {N. C.) 257 11831). 87 * 102 MALICIOUa PROSECUTIONS. in Court, at the general gaol delivery. This order was re-pub- lished, by direction of the Court, in the May session of 1739, three years before R. v. Brangan, and upon the acquittal of Bran- gan his counsel moved for an order for a copy of the indictinent to be delivered to him. Willes, C. J., refused to make the order, on the grouod that the order of the Court did not override the common law right of prisoners on their acquittal "to a copy of the record of such acquittal for any use they might think fit to make of it; and that, after a demand of it had been made, the pro- per officer might be punished for refusing to make it out." It seems probable that the reversal on appeal of a conviction is not a termination favourable to the person convicted upon which be can found an action for malicious prosecution. Reynolds v. Kennedy, 1 Wils. 232 (1748j, which has frequently been quoted as an authority, was an appeal from the Court of King's Bench in Ireland. The declaration was for seizing the plaintiff's brandy, and "falsely and maliciously" exhibiting an [ * ] 02 ] * information against him before the sub-commissioners of excise for not having paid duty upon it. It alleged that the sub-commissioners condemned the brandy, and that the commissioners of appeal "most justly reversed the judgment of the sub-commissioners." It was held that as to the information before the sub-commissioners the declaration showed a foundation for the prosecution, and that as to the appeal "we cannot infer, from the judgment of reversal of the commissioners of appeal, that the defendant, the prosecutor, was guilty of any malice." In Mellar v. Baddeley, 2 Cr. & M. 675 (1834), the plaintiff had been convicted of night poaching under 1 & 2 Will. 4, c. 32, and had suffered imprisonment in default of paying a fine, though he might under the statute have appealed. He was nonsuited, and the Court of Exchequer refused a rule; but Reynolds v. Kennedy was not referred to. In Bas6b4 v. Matthews, L. E. 2 C. P. 684 (1867), it was argued that a declaration was not demurrable which alleged a summary conviction from which there was no appeal, and the argument was not successful. In Boaler v. Holder, 51 J. P. 277, and 3 Times Law Rep. 546 (1887), the plaintiff was indicted for publishing a libel knowing it to be false, and was convicted upon that indictment of publish- ing a libel, and sentenced to a term of imprisonment, which he 88 FAVOURABLE TEBMISATION OF PROSECUTION EVIDENCE. * 103 duly underwent. Wills and Day, JJ., held|that judgment had, upon proof of these facts, been wrongly given for the defendant, and made an order absolute for a new trial. * It appeal s [ * 103 ] from the Times report that the jury expressly found the plaintiff not guilty of publishing a libel knowing it to be false, and that, consequently, so far as the plaintiff was prosecuted for that offence, the prosecution terminated favourably to him. Where the statement of claim alleges that proceedings analog- ous to a prosecution have terminated, it may, in some cases, be presumed by reasonable intendment that the termination was favourable to the plaintiff. Redway v. McAndrew, L. E. 9 Q. B. 74 (1873).. The single exception to the rule that the prosecution must have terminated favourably to the plaintiff is that it does not apply to cases where the proceeding were ex parte, and the plaintiff had no opportunity of being heard. See Stewart v. Qromett, 7 C. B. N. S. 191 (1859), in which the defendant had made an ex parte application to a magistrate to bind the plaintiff, over to keep the peace, and the plaintiff, in default of finding sureties, had been imprisoned for six months. The declaration setting out these facts was held good on demurrer, on the ground that in this instance, as in the case of maliciously exhibiting articles of the peace (a), the usual rule as to a favourable termination did not apply. (o) A person against whom articles of the peace are exhibited cannot be heard to contradict the statements in them, but must be bound over if they show snfQcieut cause. B. v. Doberty, 13 East, 171 (1810), 89 *105 MALICIOUS PROSECUTIONS. [*104] *CHAPTEKXI, WANT OF REASONABLE CAUSE MUST BE PROVED BY THE PLAINTIFF. Since the decision of the Court of Appeal in Abrath v. N. E. Rail. Co., 4 Q. B. D. 440 (1883), it has been clearly established that the plaintiff cannot succeed unless he has proved not merely that there may not have been reasonable cause, but that as a matter of fact there was not reasonable cause. The question has, hovrever, in earlier cases, given rise to a good deal of diffi- culty, plaintiffs having insisted that when they had proved the prosecution and its termination favourably to themselves they were entitled to recover, unless the defendants could show reasonable cause for having prosecuted. In Goldingv. Crowle, Sayer'sEep. 1 (1751), which was decided mainly upon another point (a), it was said to have been laid down in Savill v. Roberts that, where the grand jury had found a true bill, the defendant was not ''obliged to prove a probable cause for preferring the bill; but it shall lie upon the plaintifF to prove express malice." I do not think that Holt, C J., in Savill V. Roberts, went so far as to suggest that the finding of a true bill by the grand jury negatived want of reason- [ * 105 ] able * cause for preferring it. It was more than once held subsequently that a plaintiff who had merely proved his acquittal, without giving further evidence of want of rea- sonable cause, must be nonsuited. Purcell v. Macnamara, 9 East, 361 (1808); Byne v. Moore, 5 Taunt. 187 (1813). In the latter of these cases the indictment is said to have been for slander. Nicholson v. Coghill, 4 B. & C. 21 (1825), was an action for malicious arrest, and the facts were that the defendant had the plaintifF arrested on mesne process, filed no declaration until he was ruled to declare, and when he was ruled to reply discontinued and paid the costs. This was held to be sufficient evidence of {a) Vide ante, p. 58. 90 ^VA^''3; of reasonable cause must be proved. * 106 malice and want of reasonable cause to sustain a verdict for the plaintifp, and Bayley, J., in giving his judgment, referred to the following passage in Buller's Nisi Prius (B. N. P. 14) : "And when the facts lie in the knowledge of the defendant himself, he must show a probable cause, though the indictment be found by the grand jury, or the plaintiff shall recover without proving ex- press malice. Parrottw. Fishioick, London after Trinity, 1772." I think that, except in so far as it is an excellent piece of advice in the conduct of defences, especially now that the question of reasonable cause is practically decided by the jury, this statement of Buller's must be considered bad law. Nor do I think that it was borne out by the case on which it was founded, a note of which is appended to the report of Purcell v. Macnamara, 9 East, 361, at p. 362, n. The action of Parrot v. Fishwick was tried by Lord Mansfield, who appears to have told the jury, in summing-up, * that as there had been in that case a [ * 106 ] true bill found, and an acquittal by the petit jury, "it was not necessary to prove express malice; for if it appeared that there was no probable cause, that was sufficient to prove an im- plied malice, ivhich was all that was necessary to be proved to sup- port this action. For in this case all the facts lay in the defend- ant's own knowledge; and if there were the least foundation for the prosecution, it was in his power and incumbent on him to prove it." It appears to me that the words "this action" apply not to actions for malicious prosecution generally, but to the particular action which Lord Mansfield was then trying. In Willans v. Taylor, 6 Bing. 183 (1829) — on the first occasion of its coming before the Court — it was held generally, that a plaintiff who gives some evidence of want of reasonable cause puts it on the defendant to prove reasonable cause affirmatively. In Cotton V. James, 1 B. & Ad. 128 (1830), Lord Tenterden said: " . . .in general the plaintiff must give some evidence showing the absence of probable cause. But such evidence is, in effect, the evidence of a negative, and very slight evidence of a negative is sufficient to call upon the other party to prove the affirmative." Brooks V. Blain, 39 L. J. C. P. 1 (1869), is another authority to the effect that the plaintiff must prove his case. These decisions have to some extent lost their importance since the decision of Ahrath v. N. E. Rail. Co. 11 Q. B. D. 440 (1883). In that case the judgment of the Divisional Court in the plaintiff's 91 * 108 - MALICIOUS- PEOSECUTIONS. » favour rested mainly on the ground that Mr. Justice [ * 107 ] Cave had * misdirected the jury in telling them that the onus of proving that the defendants did not take reasonable means to inform themselves of the true facts of the case rested on the plaintiff. It was to this point that the argu- ments and judgments in the Court of Appeal were mainly directed, and on this poini all the members of the House of Lords agreed with the Court of Appeal, though they did not discuss it in their judgments. Under these circumstances it seems to me that the judgments of the Master of the Eolls and Lord Justice Bowen are the locus classicus, for the proposition,- that the plaintiff in malicious prosecution must prove his case. The following extracts from the judgment of Bowen, L. J. (6); contain, I think, the existing law on the subject:— "This action is for malicious prosecution, and in an action for malicious prosecution the plaintiff has to prove, first, that he was innocent (c), and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prose- cution, or, as it may be otherwise stated, that the circumstances of the ease were such as to be, in the eyes of the judge, incon- sistent with the evidence of reasonable and probable r*108] cause; and, lastly, that the proceedings of which * he complains were initiated in a malicious spirit; that is, from an indirect and improper motive, and not in furtherance of justice. All these three propositions the plaintiff has to make out, and if any step is necessary to make out any one of those three propositions, the burden of making good that step rests upon the plaintiff. I think the whole of the fallacy of the argu- ment addressed to us lies in a misconception of what the learned judge really did say at the trial, and in a misconception of the sense in which the term 'burden of proof was used by him. "Whenever litigation exists somebody must go on with it; the plain- tiff is the first to begin; if he does nothing he fails; if he makes a primO, facie case, and nothing is done to answer it, the defen- f51 11 Q. B. D. at p. 455. (c) I know of no other authority for this proposition. It may he assumed that no jury would ever return a verdict for a plaintiff whom they believed to have been guilty; but it is quite conceivable that a guilty man might be prosecuted maliciously and without reasonable cause, and acquitted. Would he be legally entitled to recover ? 92 WANT OF REASONABLE CAUSE MUST BE PROVED. * 109 dant fails.' The test, therefore, as to the burden of proof oronus of proof, whichever term is used, is simply this: to ask oneself ■which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case; for it is obvious that, as the controversy involved in the litigation travels on, the parties, from moment to moment, may reach points at which the onus of proof shifts, and at which the tribunal will have to say that, if the case stops there, it must be decided in a particular manner. The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls * over until [ * 109 ] again there is evidence which once more turns the scale. That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to win, rests. It is not a rule to enable the jury to decide on the value of conflicting evidence. So soon as a conflict of evidence arises, it ceases to be a question of onus of proof." The Lord Justice then points out that sometimes definite questions are put by the judge to the jury, as had happened in the case before him, and as, I imagine, will more and more frequently happen in actions for malicious prosecution. He proceeds: — "If there is a conflict of evidence as to these questions, it is unnecessary, except for the purpose of making plain what the judge is doing, to ex- plain to the jury about onus of proof, unless there are presump- tions of law, such as, for instance, the presumption of considera- tion for a bill of exchange, or a presumption of consideration for a deed. And if the jury is asked by the judge a plain question, as, for instance, whether they believe or disbelieve the principal ' The burden of showing want of probable cause in, in the first instance, on the plaintiff: Wheeler v. Nesbitt, 24 How. 544 (1860), Clifford, J.; and there must be evidence of the absence ol such probable cause before the de- fendant can be called on to justify his conduct; but as this is a negative, slight evidence will generally be sufficient: McCormick v. Sisson, 7 Cowen, 715- Gorton v. DeAngelis, 6 Wend. 418; Stone v. Crocker, 24 Pick. 81; John- son'?) Martin, 3 Murray, 248: Plummer v. Theen, 3 Hawks. 35; Williams v. Norwood 2 Yerger, 329; Graham v. Noble, 13 S. & R. 233; Prough v. An- triken 11 Pa. St. 81; Smith r. Ege, 52 Id. 419 (1863^; Sutton v. Anderson, 103 Id. 151 (1883), Green, J.; Straus i>. Young, 36 Md.246 (1872), Grason, J If there was probable cause, the action cannot be sustained, even though the prosecution complained of was malicious: Miller v. Milligen, 48 Barb. 30 (1886), Ingalls, J. * 111 MALICrOUS PROSECUTIONS. witness called for the plaintiff, it is unnecessary to explain to them about the onus of proof, because the only answer which they have to give is Yes or No, or else thej' cannot tell what to say. If the jury cannot make up their minds upon a question of that kind, it is for the judge to say which party is entitled to the verdict. I do not forget that there are canons which are useful to a judge in commenting upon evidence, and rules for determin- ing the weight of conflicting evidence; but they are not [*110] the same as onus of proof. Now, in an * action for malicious prosecution, the plaintiff has the burden throughout of establishing that the circumstances of the prose- cution were such that a judge can see no reasonable or probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition, that when a negative is to be made out the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff. " The terms ' negative ' and ' affirmative ' are, after all, relative, and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative, accord- ing to the definition adopted in measuring the duty which is neg- lected. Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a particular purpose, that is an averment^ which he is bound to prove positively. It has been said that an exception exists in those cases where the facts lie peculiarly within the knowledge of the opposite party. The counsel for the plaintiff have not gone the length of asserting that in all those cases the onus shifts, and that the person within whose knowledge the truth peculiarly lies is bound to prove or disprove the matter in dispute. I think a proposition of that kind cannot be maintained, and that the exceptions supposed to be found amongst cases relating to the game laws may be [ * 111 ] explained on special grounds." The following * para- graph states the ways in which the jury may be asked for their verdict, and the way in which the jury in Abrath's case were asked for it. The judgment proceeds: — " The question whether there was want of reasonable and prob- able cause depended upon the materials, which were in the pos- 94 WANT OF REASONABLE CAUSE MUST BE PROVED. * 112 session of the prosecution at the time it was instituted, and also on the further point, whether those materials were carefully col- lected and considered. Now, there might be two views of the ma- terials which were in the possession of the prosecution. It may be said that the materials were evidently untrustworthy, or that they were obviously trustworthy, according as the one view or the other is taken of the facts. The burden of showing carefulness in the inquiry would be shifted according to the view of the facts adopted. If the materials were admittedly untrustworthy, that would be a strong reason for throwing on the defendants the bur- den of showing that they, nevertheless, had been misled, after all their care, into relying upon worthless materials. If the mater- ials were obviously trustworthy, they would be enough, primCL facie, to justify those who trusted to them. The view for the plaintiff is, as it seems to me, that, as a matter of law. Cave, J., ought to have assumed that the materials in the possession of the prosecutors at the time they instituted the prosecution were un- trustworthy and suspicious, and that he ought to have directed the jury to go on and consider, as if it were an independent mat- ter, whether the prosecution had so conducted themselves as to relieve themselves of this grave opprobrium of having acted upon *worthless materials ; in effect, that he [ * 112 ] ought to have left them to a specific issue whether the inquiry had been conducted reasonably and properly by the pros- ecution — whether they had collected the information carefully. Now, I think that would have been a mistake in law. The trust- worthiness of the materials — I do not mean the legal inference to be drawn from them, but the worth of them — was a question of fact, not a question of law — a question of fact depending on the view the jury took about the evidence; and it seems to me that Cave, J., would have been wrong in dividing into two parts the questions of fact, assuming one-half necessarily to be decided one way, and telling the jury that the onus of proof shifted about the other. He put the two together, and asked the jury a question, I think, covering the whole of the controversy — ^whether the de- fendants took reasonable care to inform themselves of the true state of the case ? He then told the jury that they must bear in mind that it lay on the plaintiff to prove that the railway com- pany did not take reasonable care to inform themselves of the true state of the facts. The meaning of that is, that if the jury 95 *114 MALICIOUS PROSECUTIONS. were not satisfied whether the defendants did or did not take proper care — inasmuch as the plaintiff was bound to satisfy the jury that the defendants had not taken due care — the defendants would in the end be entitled to the verdict. That direction was quite correct." The Lord Justice concluded as follows : — " The counsel for the plaintiff contend that the onus lay [ * 113 ] on the defendants for this reason. They say : the * plain- tiff had been shown to be innocent ; the circumstances under which he was called upon to attend his patient were obvi- ously consistent with innocence, even it McMann [for conspiracy with whom the plaintiff had been indicted] was guilty of impos- ture, and, apart from any particular proposition, innocence, under these circumstances, will be evidence of want of reasonable and probable cause. That was the contention. The plaintiff's coun- sel thus insisted upon drawing a line half down their own case. The whole case was made up of a quantity ,of facts, and if one group of facts was treated in the sense most favourable to the plaintiff, no doubt it would have established a strong case against the defendants which they ought to answer by proving, if they can, another group of facts. But the plaintiff's counsel had no right to divide their case in that manner, and to assume that an inference is to be drawn from half their facts, which throws an additional burden upon the defendants with regard to the other half. That is the real vice in their argument. It is contended that the defendants ought to have known that the witnesses against the plaintiff were persons of bad character. But this is a matter which affects the weight of their evidence, and not the onus of proof. It may be that it was a proper argument to be addressed to the jury, to ask them to find that, even if all these stories had been told to the defendants, still they were told by persons whom the defendants ought not to have accepted; that was a perfectly fair argument to address the jury; but it [ * 114 ] was an argument on a matter of fact, and not on *a matter of law, and the plaintiffs' counsel had no right to ask the learned judge to tell the jury to assume that a limited portion of the facts in evidence, as a matter of law, established a case against the defendants which the defendants had to answer by setting up some special case of their own. To do that would be to attempt to make the onus of proof shift in the middle of a conflict of evidence, whereas, as I explained when I began my 96 WAKT OP REASONABLE CAUSE MUST BE PROVED. * 115 judgment, the onus of proof is not a matter which enables a jury to decide between conflicting witnesses; and when there is evi- dence on which reasonable men may act one way or the other, to ask the learned judge to lay down such a rule as to shift the onus of proof in the middle of the case, would be to ask him to misdi - rect the jury; but the learned judge, so far from misdirecting the jury by adopting that view, directed the jury quite rightly. " Something has been said about innocence being proof, prima facie, of want of reasonable and probable cause. I do not think it is. When innocence wears that aspect it is because the fact of innocence involves with it other circumstances which show that there was the want of reasonable and probable cause; as, for ex- ample, when the prosecutor must know whether the story which he is telling against the man whom he is prosecuting is false or true. In such a case, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be want of reasonable and probable cause. Or, if the circumstances proved are such that the prosecutor must know whether the ac- cused is guilty or innocent, if he exercises reasonable care, it is only * an identical proposition to infer that, [ * 115 ] if the accused is innocent, there must have been a want of reasonable and proper care. Except in cases of that kind, it is never true that mere innocence is proof of want of reasonable and probable cause. It must be innocence accompanied by such circumstances as raise the presumption that there was a want of rea- sonable and probable causd The ground of our decision comes back to what was suggestpd. Who had to make good their point as to the proposition whether the defendants had taken reasonable and proper care to inform themselves of the true state of the case ? The defendants were not bound to make good anything. It was the plaintiff's duty to show the absence of reasonable care . . . ." 7 PEOSECUTIONS, ETC. 97 ■ H6 MALICIOUS PROSECUTIONS. [*116] *CHAPTEK XII. EVIDENCE AS TO PLAINTIFF'S CHARACTER. It appears to have been the rule that, in actions for malicious prosecution, evidence that the plaintiff bore a bad reputation generally was admissible, but not the grounds of it.' See Rod- rigioez v. Tadmire, 2 Esq. 721 (1799); and Cornwall v. Richard- son, Ky. & M. 305 (1825); also Dovming v. Butcher, 2 Moo. & E. 374 (1841), which latter, however, was an action for false iin- prisonment. As the plaintiff is, now-a-days, a necessary witness, and may be cross-examined to credit, the point is of hardly any inportance. ' The plaintiff may give evidence of good character and reptjtation : Bliz- zard V. Hays, 46 Ind. 166; Woodworth v. Mills, 61 Wis. 44 (1884), Taylor, J. As a general rule, evidence of plaintiff's bad character is inadmissible, but where the question of character is involved in the nature of the action the plaintiff's general bad repute may be shown to reduce damages: Gregory V. Chambers, 78 Mo. 294; Fitzgibbon v. Brown, 43 Me. 169; and sometimes such evidence is received aa affecting the existence of probable cause: 2 Green. Eyid. Sec. 458. In Winebiddle v. Porterfield it was ruled by Mr. Justice Coulter that evidence of the bad character of the plaintiff since the complaint made is inadmissible: 9 Pa. St. 137 (1848). Yet, if other circum- stances of suspicion are shown, such evidence may be given because it may constitute a sufficient cause: Miller v. Brown, 3 Mo. 127; Bostick v. Ruther- ford, 4 Hawks. 83. In New York the defendant is competent to testily whether he was actuated by ill will or malice: McCormick v. "Woodworth, 47 Hun. 71 (1888), Martin, J. A witness cannot rehearse testimony given before a magistrate by witnesses other than the defendant: Cotton v. Huidekoper, 2 P. & W. 149 (1830), Rogers, J.; John v. Bridgman, 27 Ohio, 22 (1875), Whitman, J.; contra McMahon v. Armstrong, 2 Stew. & Port. (Ala.) 151 (1832); Bacon o. Towne, 4 Cush. 217 (1849); Goodrich v. Warner, 21 Conn. 443 (1852); but a competei^t witness who was present may prove that no evidence in support of a criminal charge was offered by defendant: Richards v. Foulke, 3 Ohio, 52 (1827). When there is a question of probable cause, e^adence of suspi- cious behavior of the plaintiff is admissible: McRea v. Oineal, 2 Dev. (N. C.) 166 (1829). 98 DAMASES SPECIAL DAMAGES COSTS. * 117 * CHAPTER XTII. [ * 117 ] DAJIAGES— SPECIAL DAMAGES— COSTS. A SUCCESSFUL plaintiff ia au action for malicious prosecutioa is entitled to recover damages for the costs of his defence, which used to be considered the main ground, and was probably the original ground, of the action, and for the indignity and injury to his fame or credit caused by the prosecution' (Savill v. Ro- berts, 1 Ld. Raym. 37-4 (1678) ; and if he has been charged to- gether with other persons, he can recover iil respect of the gen- eral costs of their defence, if he made himself liable. Rowlands V. Samuel, 11 Q. B. 39 (1847). Special damage is not necessary to found the action, as the in- jury to reputation is enough, Smith v. Cranshaw, Sir W. Jones, 93 (1 Car. I.); and Jones v. Gwynn, 10 Mod. 148 and 214 (1713). ' In this action, the jury may award damages for the injury done to the plaintiffs reputation by the charge made against him: Odgers on Libel (Blackstone Text Book Series), 14. Where a civil suit is terminated in favour of the defendant, the plaintiff is liable to an action for damages sustained in excess of taxable costs: Clossen v. Staples, 42 Vt. 209; mental suffer- ing and injury to the feelings constitute elements of compensatory damages, and in addition, exemplary damages may be allowed: McWilliams v. Hobari, 42 Md. .57 (1874), Bowie, J. When no actual damage is suffered, no exem- plary damages can be recovered: Schippel )). Norton, 38 Kans. 567 (1888), Valentine, J. Consequential damages may be required for injury to the business credit of the plaintiff and expenses incident to the former suit: Lawrencew. Hager- mann, 56 111. 68; Wood r. Finnell, 13 Bush (Ken.) (1878), Pryor, J. The fees of counsel are not to be taken into account in estimating dam- ages: Good r. Mylin, 8 Pa. St. 51; Alexander v. Herr, 11 Id. 537; Stopp v. Smith, 71 Id. 28o; Hiches i: Foster, 13 Barb. 424; conira the two above cases in Illinois and Kentucky decide a different rule. To recover special dam- ages, the declaration of statement should, with particularity, set out the cause which produced them: Stanfield v. Phillips, 78 Pa. 73 (1875), Gordon, J.; but on the trial the defendant may show the plaintiff's bad reputation in mitigation of damages. Sayre v. Sayre, 1 Dutch. (N. J.) 235, Green, C. J., the leading case. Bacon v. Towne, 4 Cush. 27. While proof of defendant's good faith is admissible to mitigate punitory damages, it cannot be considered to mitigate compensatory damages includ- ing those allowed for injury to the feelings: Fenelon v. Butts, 53 Wis. 344 (1881), Orton, J. If the damages are excessive, a new trial may be grantefi : Blunt V. Little, 3 Mason, 102. As to a military case involving questions of malicious prosecution and compensatory damages: McCall v. McDowell, 1 Abbott, 212 (1867), Deady, J. 99 *119 MALICIOUS PROSECUTIONS. But the cases where there was none can never have been com- mon, and are not likely to recur now, although I apprehend that an action would lie for maliciously and without "reasonable cause applying for a summons which the magistrate refused. [*118] la Jennings v. Florence, 2 C. B. * N. S. 467 (1857), it seems to have been thought necessary to aver special damage in an action for malicious arrest, where an arrest for a smaller sum would not have been actionable; but in Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. D. 674; 52 L. J. Q. B. 488 (1883), it was held that it was not necessary to prove special damage in order to recover for maliciously presenting a petition to wind up a company. The amount of damage is, in this, as in other actions for tort, a question on which the Court will seldom interfere with the find- ings of the jury. The rule is laid down in Leith v. Pope, 2 W. Bl. 1326 (1780), several cases being collected in a note. The plaintiff was a baronet, and the defendant a money-lender who had prosecuted him for larceny, and admitted in cross-examina- tion, that his true reason for the prosecution was to get rid of some actions for usury which the plaintiff had brought against him. The jury gave the plaintiff 10,000^., which even nowwouid be a remarkable verdict, and the Court of Common Pleas dis- charged a rule for a new trial on the ground of excessive dam- ages, observing, that " in cases of tort the Court will not interfere on account of the largeness of the damages unless they are bo flagrantly excessive as to afford an internal evidence of the preju- dice and partiality ,pf the jury. That is, unless they are most outrageously disproportionate either to the wrong received, or to the situation and circumstances of either the plaintiff or de- fendant," The costs of defending an action against a chief [ *119 ] * constable for malicious prosecution could not be charged to the borough fund or borough rate, under 5 & 6 Will. IV. c. 76, s. 82 (a) though the prosecution had been direction of certain of the borough magistrates." B. v. Mayor, &c., of Exeter, 6 Q. B. D. 135 (1880). Where a plaintiff had been prosecuted for perjury on several assignments, and had given evidence as to one assignment only. (a) This Act is now repealed by 45 & 46 Vict. c. 50. 100 DAMAGES SPECIAL DAMAGES COSTS. * 119 and recovered damages in respect of it, it was hold that he was not entitled to the costs of -witnesses whom he did not call, but who would have given evidence as to the other nine assignments, which were about an entirely separate matter. The defendant was not entitled to the cost of his witnesses as to the nine as- signm.ents, because the indictment was one cause of action. Deliss&r v. Tmime, 1 Q. B. 333 (1841). 101 * 120 MALICIOUS PROSECUTIONS. [* 120 ] * CHAPTER XIV. THE DISTINCTION BETWEEN MALICIOUS PROSECUTION AND FALSE IMPRISONMENT. It often happens that a malicious prosecution is preceded or ac- companied by a false imprisonment, and that an action is bronglit for both wrongs together. They are, however, essentially difPer- ent. False imprisonment is wrongfully restraining the personal liberty of the plaintiff. Malicious prosecution is wrongfully set- ting the criminal law in motion against him.' Restraining the personal liberty of another person is primO, facie a wrongful act; ^ The difference between the action for malicious prosecution and malic- iously and vexatiously arresting and holding defendant to bail is lucidly ex- plained by Mr. Justice Ross in.Wengert v. Beashore, 1 P. & W. 235 (1830), which was followed by Chief Justice Gibson in Herman v. Brookerhoff, 8 Watte, 242 (1839). The malicious abuse of civil process lies where a capias is sued out for some collateral object of oppression, as to extort property il- legally from the defendant: Sommer v. Wilt, 4 S. & R. 19; Baldwin v. Weed, 17 Wend, 224 ; Plummer v. Dennett, 6 Greenleaf, 421 ; Turner v. Walker, 3 Gill & John. 378. In this action it is not necessary to show want of probable cause nor that the suit was terminated, but malice must be proved. The gist of an action for false imprisonment is the unlawful detention, and the general rule is that malice may be inferred from want of probable cause: McCarthy v. DeArmit, 3 Out. 63 (1881), Trunkey, J. It is now well settled that arresting, im- ■ prisoning or holding to bail, if done maliciously and without probable cause, is actionable: Ray r. l/aw, 1 Peters C. C. 207; Brush v. Burt, 2 Penn. (N. J.) 979; Wickliffe v. Payne, 1 Bibb. 413. As to what is an arrest in law con- sult Collins V. Fowler, 10 Ala. St. 859; as to what is a holding to bail, Goslin V. Wilcock, 2 Wilson, 302; Boon v. Maul, 2 Penn. (N. J.) 862; as to malic- iously suing out an attachment, Lindsay v. Lamed, 17 Mass. St. 190; Whipple?). FuUer, Conn. 582; Bump i;. Bette, 19 Wend. 421; Young r. Gre- gory, 3 Call. 446; Shaver v. White, 6 Mumford 110; Donell v. Jones, 13 Ala. 491 ; as to maliciously suing out a domestic attachment, Williams v. Hunter, 3 Hawks. 545; Tomlinsou v. Warner, 9 Ohio, 103. The difference between the two actions has been very clearly stated . by Professor Pollock in his treatise on Torts, page 191 ; also in Hope v. Evered. 17 Q. B. D. 338 (1886); Addison on Torts (5th Ed.), 130; Ferryman v. Lister, Shirley's Lead. Cas. 352. A person who has procurred the imprisonment of another on a lawful war- rant is not liable to an action for false imprisonment, Muller v. Brown, 138 Mass. 114 (1884); but if the warrant were void and there were an arrest under it, the remedy must be trespass, Braveboy v. Cockfield, 2 McMullin, 270. As to cases of special note on false imprisonipent, Thurston v. Martin, 5 Mason, 497 (1830); Beckwith v. Beau, 8 Otto, 266 (1878). 102 FALSE IMPRISONMENT. * 122 in other words, it is a thing which requires to be excused in order to show that it is not wrongful. Setting the criminal law in motion is prima facie a thing which any person has a right to do, and it is necessary for a plaintiff, as has been explained in the preceding chapter, to show that in the particular instance it was done wrongfully, i. e. , maliciously and without reasonable cause, before he can recover for it. This is clearly stated by Lords Mansfield and Loughborough in Johnstone \. Sutton, 1 T. E. at p. 544 (1786). They say: "There is no similitude or analogy between an action of trespass, or false imprisonment, and this *kind of action. An action of trespass is for [ *121 ] the defendant having done that which, upon the stating ' of it, is manifestly illegal. This kind of action is for a prosecu- tion which, upon the stating of it, is manifestly legal." The distinction between wrongfully seizing the plaintiff, e. g., where a person, not being a constable, arrests, although no fel- ony has been committed, and locking him up, and wrongfully laying an information before a magistrate, is clear enough. Con- fusion is more likely to arise when a private person charges the plaintiff with an offence and causes him to be taken into custody. The distinction, in such a case, between the two torts is ex- plained in Austin v. Bowling, L. E. 5 C. P. 534; and 39 L. J. C^ P. 260 (1870). The plaintiff sued the defendant in the- Bristol County Court for false imprisonment, expressly waiving any right of action he might have for malicious prosecution. The plaintiff lodged in the defendant's house and owed him money, and the defendant seized the plaintiff 's goods as security. The plaintiff fetched a policeman and demanded his goods, which de- mand being refused, he went upstairs and broke the door of the room where his goods were. The defendant thereupon gave the plaintiff in charge for felony in breaking the door, and the po^ liceman took him to the station. The inspector at the station declined to keep the plaintiff in custody -unless the defendant charged him with felony and signed the charge-sheet, which the defendant did, the charge being " feloniously breaking and entering into a bedroom" in * the defendant's [*122J house. The plaintiff was therefore detained in custody, bail being refused, until the next morning, when the magistrates dismissed the charge. The County Court judge held that the whole transaction amounted to malicious prosecution, which 103 *123 MALICIOTIS PiROSECUTIONS. County Courts have no jurisdiction to try (9 & 10 Yict. c. 95, s. 58), and nonsuited the plaintiff, at%the same time stating a case for the superior Court. The Court held that the imprisonment at the police station was imprisonment by the defendant, because the defendant knew that his making the charge would cause the plaintiff to be imprisoned, and that otherwise the inspector of police would not detain him; that the police inspector was not a judicial but only a ministerial officer of justice, and that the false imprisonment did not end, or the rhalicious prosecution begin, until the charge was made next morning before the magistrate. Willes, J., said that there was clearly evidence of false impris- onment, and proceeded: — "How long did that state of false im- prisonment last? So long, of course, as the plaintiff remained in the custody of a ministerial officer of the law whose duty it -was to detain him until he could be brought before a judicial .officer. Until he was so brought before the judicial officer there was no malicious prosecution. The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained [ * 123 ] until the matter can be investigated. The * party mak- ing the charge is not liable to an action for false im- prisonment, because he does not set a ministerial officer in mo- tion, but a judicial officer. The opinion and judgment of a ju- dicial officer are interposed between the charge and the impris- onment" (a). In Morgan v. Hughes, 2 T. E. 225 (1788), the defendant was a magistrate, who had been asked to settle a dis- pute about a sheep, and who of his own motion issued a warrant upon which the plaintiff was arrested. It was held that the dec- laration ought to have been in trespass for false imprisonment, and not, as it was, in case for malicious prosecution. If this de- cision were now to be upheld, it would probably be on the ground 'that the defendant, when he issued the warrant, was not acting in his judicial capacity. (a) This distinction does not appear to have been clearly apprehended by the parties to Dawson v. Vansandeau, 11 "W. E. 516 (1863), whose curious and rather confused story is told on p. 51. 104 FALSE IMPRISONMENT. * 123 (HOW THE ACTION OF MALICIOUS PBOSECUTION CAN BE MAINTAINED AN1> OTHER INCIDENTS CONNECTED WITH IT, STATED IN BRIEF.) TJie foundation of the action for lualicions jirosecution is the malice of the defendant either express or implied; and whatever eijjrines of the law uialioe may employ to compass its evil designs against innocent persons, the action on the case affords an adequate remedy to the party injured. The essential ground of the action is that a legal prosecution was carried on without a probable cause; but this must be expressly proved and cannot be implied. The question of probable cause is a mixetl proposition of law and fact. Whether the circumstances, alleged to show it probable or not probable, are true and existed, and a matter of fact; but, whether supposing them true, they amount to a probable cause, is a question of law. The question of malice, which is to be considered not in the sense of hatred or spite but of inalus animus, is one which must go to the jury and may be implied from want of probable'cause. The following grounds will support the action: Damage to a man's fame; danger to his life, limb, or liberty; damage to a man's property, as where he is forced to expend money in necessary charges to acquit himself of the prime of which he is accused; a civU suit, though there be no seizure of per- son or property. The defence of proper and competent counsel will not avail, if the deiend- ant was unlawfully encouraged in bringing suit, or if the statement of facts was knowingly incorrect, or counsel or client acted in bad faith toward each other. The form of the action for malicious prosecution is an action of trespass on the case, which in many states, by legislation, is the action for trespass. If two or more join in a prosecution without reasonable or probable cause, they are jointly and severally liable to the party injured; and one who par- ticipates voluntarily in such prosecution, is liable in damages whether there were others concerned in it or not. It is requisite to aver in the declaration or statement, every allegation proper to support the action, viz: that the defendant falsely, maliciously, and without reasonable or probable cause did thus and so to the injury of the plaintiff, and to state the trial and acquittal; and as the action cannot be maintained till the prosecution be terminated, such fact must appear upon the face of the declaration; but the want of this averment is cured by ver- ■ diet, because it will be presumed that it has been proven at the trial. Care must be taken in framing the declaration or statement, that it will be a full averment of the substance of the charge, told in the style of our simple, abridged pleadings. The usual matters of evidence are, that the defendant had no reasonable or probable grounds of suspicion against the plaintiff, and that the defend- adt was actuated by malice. This rule seems to be founded upon principles of policy and con- venience, because the prosecutor should be protected in his legal proceed- ings, however malicious his private motives may have been, provided he had probable cause for preferring the charge. This protection seems to be one of necessity when it is considered how often it happens that the facts upon which the prosecution is founded are confined to the knowledge of the prosecutor. Any circumstances, which disprove the malice of the defendant in pre- ferring the charge, should be produced, and it is requisite for the plaintiff to adduce evidence arising out of the circumstances, to show it groundless. Where the defendant gives evidence of probable cause, a witness may be 105 * 123 MALICIOUS PROSECUTIONS. examined as to whether the plaintiff was a man of bad character, which is admissible in mitigation of damages. If the action be not commenced within six. years, in most of the states, the Statute of Limitations will bar. • The plaintiff can prove in aggravation of damages, the length of his im- prisonment, his expenses, situation and circumstances, or the peril or jeopardy to which a man's life or liberty may be subjected, or the prejudice to his fame and reputation or the expenses of conducting his defence. loe INDEX. [The paging refers to the [*] pages.] Acquittal- prisoner's right to copy of record of, 101. Acquittal of one offence, conviction for another; how far favourable termi- nation, 10'2. Acquittal of plaintiff must be pleaded, 99. Action in rem: maliciously bringing, 11. favourable termination, 100. Agent: authority of, to prosecute for corporation, 87, 91. Amount of damages, 118. Appeal: successful, against conviction, not favourable termination, 101. Army: rights as to malicious prosecution among members of, 29, 86. Arrest: malicious, 19. Articles of the peace: maliciously exhibiting, 25. favourable termination, 103. Assault: reasonable cause for prosecution for, 42. Bankrupt: reasonable cause for arresting for rates, 50. Bankruptcy: maliciously taking proceedings in, 22 — 24, Belief of prosecutor: relevant to question of reasonable cause, 43 — 56. Bill: preferring, before grand jury, amounts to prosecution, 10. Binding over to keep the peace : malicious application for, 26. application for: favourable termination, 103. Binding over to prosecute: not a defence to action, 16. Tvhere by mistake, 18. , Burden of proof of absence of reasonable cause on plaintiff, 104 — 115. Case, action on, "in the nature of conspiracy, " 3. Character of plaintiff: evidence of, 116. Civil action : maliciously bringing, 20. Company: malicious petition to wind up, 24. Conspirarcy: action of, 1 — 4. action of, lay only against more than one, 3. writ ofj 1 — 4. form of "writ of, 1. statutory definition of, 2. Conspiracy to defraud: prosecution for, 70. Conviction for offence, acquittal of another: how far favourable termination, 103. Conviction for offence not charged in indictment, 15. , (107) 126 INDEX. [The paging refers to the [*] pages. 3 Conviction reversed on appeal: not favourable termination, 101. Cjnvicfion: where no appeal, 102. Corporation: agent's authority to prosecute for, 87. 91. Corporation aggregate: doubtful whether action lies against, 86 — 98. opinion of Baron Alderson, 87. opinion of Lord Bramwell, 91. opinion of Lord Justice Fry, 88. Costs, 117—119. Costs of action for indictment containing several charges, 14. Counsel: instructing, may amount to prosecution, 9. Counsel's opinion: relevance of, to reasonable cause, 43. Court-martial: malicious proceedings in, 29, 86. Criminal Law Amendment Act, 1885: maliciously procuring search warrant under, 25. Crown: Qn. whether action lies against the officers of, 85. Damages, 117 — 119. amount of, 118 the ground ol action for malicious prosecution, 3. Declaration or narr: requirements of, 31. • Ecclesiastical Court, prosecution in, 18. Evidence of favourable termination, 100. Evidence of plaintift's character, 116. £a;;>or;e proceedings: favourable termination not necessary, 103. • False imprisonment: distinction, between malicious prosecution and, 120 — 123. Favourable termination : what constitutes, 99 — 103. evidence of, 100. must be pleaded, 99. conviction for one oifence, acquittal of another, 103. when presumed, 103. Favourable termination not necessary where proceedings ex parte, 103. Favourable termination of action in rem. 100. Grand juror: no action against, for finding a bill, 85. Grand jury: preferring bill'before, amount^ to prosecution, 10. Hearsay may be reasonable cause, 52. Ignorance of law: may possibly amount to malice, 36. Ignorance of law not reasonable cause, 49. Independent charges: indictment containing, 13. costs, 14. Indictment: bad, amounts to prosecution, 11. Indictment for one offence conviction for another, 15. Information: when swearing before magistrate amounts to a prosecution 6 108 INDEX. 127 [The paging refers to the [*] pageE. ] Information of prosecutor: relevant to question of reasonable cause, 43 — 56, Innocence of plaintiff: Qu. whether material, 107. Instructing counsel may amount to prosecution, 9. Judge: no action against as such, 85. Jurisdiction: prosecution before a court of insufficient, 13. Justice of the peace: no action against as such, 85. Lunacy; maliciously issuing a commission of, 26. Magistrate: when information sworn before, amounts to a prosecution, 6. Malice: extdence of, 34 — 40. meaning of, 34, 37. a question for the j ury, 84. may be inferred from want of reasonable cause, 29. not actionable where there is reasonable cause, 28. Malicious we exeat regno, 20. Malicious arrest, 19. Military service of the crown: proceedings between persons in, 29, 86. Naval service of the Crowa : proceeedings between persons in, 29, 86. iVe exeat regno: malicious, 20. Nisi Prim: maliciously suing at, 20 Officers of Navy or Army: rights as to malicious prosecution, 29, 86 Opinion of counsel: relevance of, to reasonable cause, 43. Oral charge: may be sufficient prosecution, 8. Outlawry : maliciously proceeding to, 26. Part of a prosecution: reasonable cause for, 49. Perjury: prosecution for, on several assignments, 13, 14. Petition to wind up a company: maliciously presenting, 24. Pleading, 31. Proof of absence of reasonable cause: onus on plaintiff, 104 — 115. Prosecution: suggested definition of, 5. what amounts to, 5 — 18. appearing as witness may amount to, 9. bad indictment amounts to, 11. instructing counsel may amount to, 9 preferring bill before grand jury amounts to, 10 when information sworn before a magistrate amounts to, 6. actionable if malicious, whatever the offence charged, 26. before a court of insufficient jurisdiction, 13. following false imprisonment, 122. may consist in oral charge only, 8. reasonable cause for part of, 49. Prosecution by order of judge: when actionable, 16. 109 128 INDEX. [The paging refers to the [*] pages..! Prosecution for one offence when there was reasonable cause to prosecute for another, 13. Prosecution in Ecclesiastical Court, 38. Prosecutor bound over to prosecute, 16. Prosecutor bound over by mistake, 18. Questions for jury as to reasonable cause, 74, 82. Eeasonable cause: evidence of want of, 41 — ^56. counsel's opinion, 43. ignorance of law, 49. originally a question for the Court, 57. plaintiff must prove absence of, 104 — 115. questions left to a j ury by Mr. Justice Cave, 74, 82. a question for the Court or for the jury, 57 — 83. judicial regret that it was not a question for the jury, 66. Mr. Justice Hawkins' definition of, 54. Eeasonable cause as defined by Mr. Justice Hawkins: how far a question for the jury, 69. Eeasonable cause dependent on belief of prosecutor, 43 — 56. Eeasonable cause for part of a prosecution, "49. Eeasonable cause for prosecution for assault, 42. Eecord of acquittal: prisoner's right to Copy of, 101. Eeputation of plaintiff: evidence of, 116. Eeversal on appeal of conviction: not favourable termination, 101. Search-warrant for goods: maliciously procuring, 7, 8, 24. Search-warrant under Criminal Law Amendment Act, 1885: maliciously pro- curing, 25. Secretary of State &c. : Qu. whethei^ action lies against, 85. Several charges: indictment containing, 13. indictment containing: costs, 14, 119. Ship: maliciously procuring arrest of, 21. Special damage, 117. Termination: favourable to the plaintiff; what is, 99 — 103. ■when presumed to have been favourable, 103. Termination of ex parte proceedings need not be favourable, 103. Want of reasonable cause: evidence of, 31 — 56. Winding np a company: malicious proceedings for, 24. Witness: appearing as, may amount to prosecution, 9. Writ of conspiracy, 1 — 4. form of, 1, 110