MALICIOUS PROSECUTIONS

WHAT IS A PROSECUTION. IN order to be liable to an action for malicious prosecution a defendant must have prosecuted the plaintiff, and it therefore becomes necessary to determine what constitutes a prosecution. 1 The only definition which, BO far as I know, has been explicitly suggested, is that given by Mr. Justice Lopes in Danby v. Beards- ley, 43 L. T. GOB (1881) : " . . . this might be a definition of a prosecutor a man actively instrumental in putting the crim- inal law in force." (This, however, requires to be qualified by the obaervation, that not merely the ministerial but the judicial functions of the criminal law must be put in motion, that is, some judicial officer must be made to act in his judicial capacity (a). It is not enough to say something which puts it into the head of somebody else to become so instrumental. In the case in which (a) Vide post, Chap. XIV., ''The Distinction between Malicious Prosecu- tion and False Imprisonment," p. 120. 1 The distinction as to the different grounds of the action is clearly stated by Mr. Justice O'Neall in Frierson v. Hewitt, 2 Hill (S. C.), 499; "the in- dictment must charge a crime and then the action is sustainable per se on showing a want of probable cause. There is another class of cases, which are popularly called actions for malicious prosecution, but they are mis- named, they are action on the case iu which a scienter and a per qued must be laid and proved. I allude, first, to actions for false and malicious pros- ecutions for a misdeameanor involving no moral turpitude; secondly, to an abuse of judicial process by procuring a man to be indicted when it is a mere trespass; third, malicious search warrants. In all these cases it will be per- ceived that they cannot be govened by the ordinary rules applicaJale to ac- tions for malicious prosecutions. "The express malice necessary to sustain the action ought to be laid and proved, and this is what I understand by scienter. In the action for malicious prosecution for a misdemeanor, it must be proved that the party knowing defendant's innocence, of mere malice preferred the charge; so, in thesecond class, it will not do to say that you indicted me, as for a trespass, but when to this statement, wesuperadd the facts that defendant knowing the trespass was no crime, yet procured the defendant to be indicted as for a crime, malice is clearly made out; actual injury must be stated and proved, and this con- stitutes the per qued.' 1 See Fuller r. Cook, 3 Leonard, 100; Heyward v. Guthbert, 4 M'Cord, 354; Candler . Petit, 2 Hall, 315; M'Neely v. briskill, 2Blackford, 259; Bennett v. Black, 1 Stewart, 495; Leidig v. Rawson, 1 Scammon, 273; Randall v. Henry, 5 Stew. & Porter, 367; Miller v. Brown, 3 Mo. 127. this suggestion was made it was proved that the plaintiff, who was the defendant's servant, lent a fellow- servant two pairs of horse- clipping machines, and took them away again when the other had done with them. The defendant had seen them lying about, and supposed they where his, * and, missing [ * 6 ] them, he said to a policeman, "I have had stolen from me two pairs of clippers, and they were last seen in possession of Danby." The policeman, without further instructions, searched Danby's house, found the clippers, arrested Danby, and charged him with felony. The defendant was called as a witness, and gave evidence for the prosecution, both before the justices and at the trial which ensued. It was held that this did not amount to a prosecution by the defendant. The counsel for the plaintiff having argued that the defendant "set the stone rolling," Mr. Justice Lindley replied "that the stone set rolling was a stone of suspicion only." A similar case, though not so strong, is Harris v. Warre, 4 C. P. D. 125; 48 L. J. Q. B. D. 310 (1879). In this case the point decided was, that it was not prosecuting to write a letter to a superintendent of police stating that the plaintiff had committed a murder, in consequence of which the police attempted, but in vain, to arrest the plaintiff. It is a prosecution to swear an information, in consequence of which a warrant is issued for the plaintiff's arrest, if the informa- tion contains a statement that the informer believes the plaintiff to have committed an offence, but not otherwise. In Davis v. Noak, 1 Star. N. P. C. 377 (1816), a declaration alleging that the defendant "charged" the plaintiff with felony, the evidence being that the defendant asserted in the information upon which the warrant was granted, that he "suspected and believed, and had good reason to suspect and believe," that the * plaintiff had committed larceny, was held to be [ * 7 ] good after a verdict for the plaintiff. The judgment is that of Lord Ellenborough, C. J., and Abbott and Holroyd, JJ., Bayley, J., diss. But in Cohen v. Morgan, 6 D. & E. 8 (1825), where nothing more was proved than that the defendant went before a justice, and made a statement from which the justice's clerk drew the in- formation, and that upon the plaintiff appearing, and being ex- amined, the charge was dismissed, the plaintiff was nonsuited. 2 PROSECUTIONS, ETC. 17 *8 MALICIOUS PROSECUTIONS. In the case of Leigh v. Webb, 8 Esp. 164 (1800), the defendant, having, by means of a search-warrant, discovered some casks belonging to him in the house of someone else, swore an infor- mation stating this fact, but not making any direct charge against the plaintiff, or saying anything which amounted to a charge. The magistrate thereupon issued a warrant, and in an action for malicious prosecution, Lord Eldon nonsuited, saying thot the defendant was not responsible if the magistrate erroneously thought that the facts sworn to amounted to a charge of felony. The case of Wyatt v. White, 5 H. & N. 371; and 29 L. J. Ex. 193 (1860), though nominally decided upon the question whether the defendant had reasonable and probable cause for laying the in- formation, seems to me really to have been decided in the de- fendant's favour on the ground that nothing done by him amounted to a prosecution. Baron Channell said, in giving judg- ment: "This search-warrant does not direct an arrest on a charge of felony, but only to bring up the party found in possession of the goods to be charged if necessary." This case was [ * 8 ] decided in * 1860; but in 1822 it had been decided, in the case of Elsee v. Smith, 1 D. & R 28 (1822), that an action will lie for maliciously procuring a search-warrant to be issued, and the plaintiff's house to be searched. In this case the infor- mation stated that the informer suspected the goods to have been stolen, and the Court of King's Bench held that such an infor- mation, falsely and maliciously sworn, would support the action. It appears that a charge orally made before a magistrate may be a sufficient prosecution to found an action upon, though there is no information, summons, or warrant. This was expressly laid down by Bosanquet, J., at nisi prius, in Clarke v. Postan, 6 C. & P. 423 (1834), where it was alleged that the defendant, after pre- ferring a charge of assault, which the magistrate dismissed, said that he had also "a charge of felony for abstracting" certain goods, and the magistrate dismissed that charge also. However, the jury, after the direction that this might amount to a malicious prosecution, found that the second charge was not in fact made. The same theory seems to have been established in a case of much higher authority, Dawson v. Vansandeau, 11 W. R. 516 (1863). In this case both parties were attorneys, and when the prosecution complained of occurred the defendant was prosecut- ing, and the plaintiff defending, a man named Poole on a charge of . 18 fraudulent bankruptcy before an alderman of the City of London. One of the plaintiff's witnesses admitted, in cross-examination, that he had, by the plaintiff's direction, signed a false statement prepared by the plaintiff, which the plaintiff had * produced in evidence at the examination. This admis- [ * 9] sion having been made, the defendant there and then gave the plaintiff into custody, and on his being searched, a letter from Poole was found upon him, to some extent corroborating the witness's story. The defendant then charged him with conspiracy to defraud, and he was remanded by the alderman. The Court of Queen's Bench, in overruling the decision of Blackburn, J., at the trial, that there was no evidence of reasonable cause, held that the corroborative evidence was discovered "before the criminal charge was perferred against him with a view to prose- cution," so that here the prosecution consisted in the formal, but apparently oral, charge made after the plaintiff was in custody. If the defendant, being the prosecutor, has taken any active part in the prosecution at any stage subsequent to its institution, but for any reason is not liable for the institution of it (as when he was bound over to prosecute by mistake, or otherwise than by reason of his own malice), he is nevertheless liable for the prose- cution. Thus, if a prosecutor under such circumstances gives evi- dence, instructs counsel, or otherwise carries on the prosecution, there is a sufficient prosecution by him for the purposes of the action. (Fitzjohn v. Mackinder, 9 C. B. N. S. 505; and 30 L. J. C. P. 257 (1861).) Lord Denman, sitting at nisi prius, directed the jury, in Clem- ents v. Ohrly, 2 C. & K. 686 (1847), that if the defendant had held himself out as maker of the charge against the plaintiff he was liable to the action. The evidence was, that the defend- ant accompanied a clerk of * Messrs. Fuller, who procured [*10] a warrant charging the plaintiff with forging the defend- ant's name to a bill, "with intent to defraud Richard Fuller and another," and that the defendant gave evidence on the hearing of the summons that he believed part of the bill to be in the plain- tiff's handwriting, and that during the hearing the counsel for the prosecution "answered appeals" made to him by Mr. Edwin James "as counsel for Mr. Ohrly." There was also evidence that Messrs. Fuller directed the prosecution, took counsel's opinion, and in- structed counsel, and told the defendant that he should be only a 19