MALICIOUS PROSECUTIONS

MALICIOUS PROSECUTIONS. witness, and were defending the action against him in his name. Under these circumstances the jury found for the plaintiff, but it is of course possible they were influenced by the circumstance that Messrs. Fuller, who professed to have been the prosecutors, were also the substantial defendants. Preferring a bill before the grand jury is a sufficient prosecu- tion to support the action, whether the grand jurors find a true bill or not. This is the natural consequence of the fact that the wrong which gave rise to the original actions of conspiracy, and of "case in the nature of conspiracy," was the conspiracy or malicious intention *'to indict," which indicting consists in preferring a bill (b). It was decided at the beginning of the 17th century, by the [ * 11] * unanimous judgment of the Exchequer Chamber, in the case of Payn v. Porter, Cro. Jac. 490 (1619), that the grand jury having ignored the bill did not take away the right of action. A few year's later the King's Bench held the same thing in Smith v. Cranshaiv, Sir W. Jones, 93, and Palm. 315 (1625), which is one of the cases dealing with the distinction between the action of conspiracy proper, and the action on the case which is the modern action for malicious prosecution. The action was "for conspiring to accuse him falso et malitiose, and accusing him/ako et malitiose." The judges "resolve que si un home ou plusors pre- ferre un Bill de indictment de Felony falso et malitiose vers un auter home, & le Jury done ignoramus sur 1e Bill que en ceo case le partie poet aver Action sur le case." The judgment goes on to point out that conspiracy would not lie, because the formal writ in that case stated that the plaintiff had been "indicte & acquitte," and "le brief de conspiracy ayant un precise forme ne poet estre extende ultra le forme." Where the bill was found by tbe grand jury, but the indict- ment was bad, BO that theoretically the plaintiff could not have been convicted upon it, the action lies notwithstanding, if the prosecution was malicious and without reasonable cause. This was first decided in Taylor's Case, Palm. 44 (1620), in which the successful counsel "argue fortement" that "neque (ft) This case was decided on a writ of error, the defendant's assignment of error being, "that this exhibiting a bill of indictment is no cause of action. " Tbe Court held that it was, and uttered the unguarded obiter dictum that, in that particular case, the defendant having justified and had a verdict against him, ''it is good reason that the action should lie." 20 I WHAT IS A PROSECUTION. * 13 est 1'enditement le cause del action; mes les scandalous parols queux pojent lui traher in suspition de perjurie," of which crime the plaintiff had been accused. The same point was decided about a * hundred years later, along with many [ * 12 ] others in the leading case of Jones v. Gwynn, 10 Mod. 148 & Gilb. K B. 185 (1713), which was followed in Chambers v. Robinson, 2 Str. 691 (1732). In Jones v. Gwynn the plaintiff sued the defendant for falsely and maliciously indicting him fbr exercising the calling of a badger without being licensed. The indictment was held to be bad it does not appear why and it was argued that therefore no action for malicious indictment lay. Parker, C. J., in deliv- ering judgment, disposed of the point in the most conclusive manner. He pointed out that the cause of action was the trouble and expense to the plaintiff, which were equally incurred whether the indictment was good or bad. The amount of expense in- curred was not material. If the badness of the indictment were an answer to the subsequent action, it would make it safe to indict maliciously as long as you made a slip in drawing the in- dictment. The action was one on the case for malicious indict- ment; but that the badness of the indictment is immaterial must d fortiori be true of an action for malicious prosecution. On the other hand, a prosecution for one offence is not, it would seem, justified by the fact that there might have been reasonable cause for a prosecution for some other offence. In Wicks v. Fentham, 4 T. R. 427 (1791), the plaintiff proved that the defendant had indicted him for having permitted an escape as a constable, upon which indictment he had been acquitted, because he was not a constable but a headborough. Lord Kenyon thereupon nonsuited, on the ground that * the [ * 13 ] plaintiff had failed to show that there was no ground for the prosecution on the merits. The Court overruled the nonsuit, and ordered a new trial, holding, on the authority of the cases cited, that " a bad indictment served all the purposes of malice." The action lies, whether the Court in which the prosecution took place was competent to take cognizance of it or not. 1 . * If the prosecution be before a Court having no jurisdiction, the party may bring either trespass or case: Morris v. Scott, 2 Wend. 281; Hays v. Younglove, 7 B. Mon. 545; see also Turpin v. Rerny, 3 Blackford, 211; Bod- well v. Osgood, 3 Pick. 379; Allen v. Greeulee, 2 Devereux, 370. 21 I * 14 MALICIOUS PROSECUTIONS. In Attwood v. Monger, Sty. 378 (1653), the action was for a false presentment before the Conservators of the Thames charg- ing the plaintiff with having suffered eight loads of earth to falJ into the Thames. After verdict for the plaintiff, the defendant moved, in arrest of judgment, that it did not appear on the record that the Conservators had authority to take the presentment, and that if they had not, the proceeding was one coram non judice, by which the plaintiff could not be prejudiced. Roll, C. J., said: "It is all one whether here were any jurisdiction or no, for the plaintiff is prejudiced by the vexation." It seems that there is a malicious prosecution sufficient to sup- port an action if the indictment contains substantially more charges than one, any one of which is malicious and without reasonable and probable cause. 2 In Read v. Taylor, 4 Taunt. 616 (1812), the defendant had in- dicted the plaintiff for perjury on twelve assignments, and the plaintiff had been acquitted. The defendant succeeded in show- ing reasonable and probable cause for three of the assignments, but not for the other nine. After a verdict for the plaintiff, the defendant moved for a rule nisi for a new trial. Mans- [ * 14 ] field, C. J., * and Gibbs, J., refused a rule, saying that the whole indictment was set out in the declaration, and that it was enough for the plaintiff to show that any part of it was malicious and without reasonable and probable cause. Gibbs, J., said: "There is no probable cause for some of the charges in the indictment; therefore this indictment is preferred without probable cause." Some doubt was thrown upon the authority of this case in the subsequent case of Delisser v. Toivne, 1 Q. B. 333 (1841). Mr. (afterwards Chief Baron) Kelley stated in argument that the re- port of Read v. Taylor was probably incorrect; that the judg- ments as reported did not answer the points taken at the bar, and that the decision was inconsistent with the judgments of Lords Mansfield and Lough borough in Johnstone v. Sutton (c), in which last objection Lord Penman concurred. Delisser v. Totvne, was also a case in which the plaintiff had been indicted for perjury on many assignments. One of the assignments was for swearing (c) IT. R. at pp. 507, 508, and 547, and vide post, p. 29. 2 An action of malicious prosecution will lie. after a criminal prosecution begun, though no indictment has been preferred: Scbock v. M'Chesney, 4 Yeatcs (Pa.), 507 (1808); Stewart v. Thompson, 51 Pa. St. 158 (1865). 22 WHAT IS A PROSECUTION. * 16 that he did not know whether or not he had paid a dividend under his bankruptcy. The rest were for statements about making a will, quite distinct from the statement about the divi- dend. The plaintiff proved that there was no reasonable and probable cause for the prosecution as far as concerned the one alleged perjury about the bankruptcy, and gave no evidence as to the other matters. He recovered 8001. damages, which sum was reduced by the advice of the Court to 500Z. The matter subsequently came before the Court as an appeal * from the Master's decision as to costs. It was held [ * 15 ] that the plaintiff was not entitled to the cqsts, which had been allowed by the Master, of the witnesses who would have proved the part of his case on which he gave no evidence. The Court, however, refused to give the defendant his costs as to the nine assignments which were not gone into; for they said that preferring the indictment, which was one charge, constituted one cause of action, and that "the plea of not guilty denies that one cause of action, and amounts to an assertion that the defendant had probable cause for the whole of the indictment. That is an entire issue; and, if there was no probable cause for any part of the charge (d), the plaintiff was entitled to a verdict." In Boaler v. Holder, 51 J. P. 277; 3 Times Law Rep. 546 (1887), the plaintiff was indicted under 6 & 7 Viet. c. 96, s. 4, for pub- lishing a libel knowing it to be false, and was found not guilty of publishing a libel knowing it to be false, but guilty of publishing a libel, and was imprisoned. He sued for malicious prosecution, and the judge, on proof of the conviction, dismissed his action, and gave judgment for the defendant. The Divisional Court (Wills and Day, JJ.) made an order absolute for a new trial, on the ground that the conviction was bad, and amounted in law to an acquittal. Wills, J., added, "To put a man on his trial for a much graver offence than you have any chance of convicting him of, is a legal wrong. The plaintiff has made out that he had * been put on his trial wantonly, and that there was [ * 16 ] an absence of reasonable and probable cause." A prosecutor is not the less responsible for the prosecution because he was bound over to prosecute by the committing jus- tices, if such binding over is the result of malicious conduct on (d) This obviously means "if there was any part of the charge for which there was no probable cause." 23 * 17 MALICIOUS PROSECUTIONS. his part, whether the prosecution by him is prior or subsequent to the binding over. Dubois v. Keats, 11 Ad. '& E. 329 (1840); Fiizjohn v. Macktnder, 9 C. B. N. S. 505; and 30 L. J. C. P. 257 (1861). The principal case on this subject is Fitzjohn v. Mackinder. Sir. Justice AVilliams, who tried the case, nonsuited the plaintiff, but though he had made up his mind to do so, let the case go to the jury, presumably that the verdict might save a new trial in, the event of his nonsuit being subsequently overruled. The Court of Common Pleas, Willes, J., dissenting, affirmed the non- suit, and the plaintiff appealed to the Court of Exchequer Chamber. In that Court the judges, for the purpose of deter- mining whether the case was a proper one to be left to the jury, assumed the findings of the jury to be correct, and they were as follows: The defendant sued the plaintiff in a county court, and the plaintiff relied on a set-off in answer to which the de- fendant produced a settlement of accounts, purporting to be signed by the plaintiff, and swore falsely that the plaintiff had signed it. The plaintiff swore he had not signed; but the judge, not believing the plaintiff, of his own accord made an order under 14 & 15 Viet. c. 100, that he should be tried for perjury, [ * 17 ] and bound * the defendant over to prosecute. The de- fendant prosecuted accordingly, and gave false evidence before the grand and petit juries, of which the former found a true bill and the latter acquitted the plaintiff. In the Exchequer Chamber, Blackburn and Wightman, JJ., thought that the non- suit was right, principally on the ground that the prosecution was a prosecution not by the defendant, but by the county court judge. Cockburn, C. J., Bramwell and Channell, BB. (e), on the other hand, thought the nonsuit wrong, on the ground that the defendant was not bound by his recognizances to give false evi- dence, or indeed to continue the prosecution after preferring the bill before the grand jury. Baron Bramwell thought that the binding over was a goood answer as far as preferring the indict- ment went, and that no action would have lain if the grand jury had ignored the bill; but the Lord Chief Justice and Baron Channel dissented from this view, because the defendant might, if he had liked, have forfeited his recognizances. If Baron (e) The report in C. B. N. S. says that seven judges heard the case argued. I do not know why the other two gave no judgment. ' 24 WHAT IS A PROSECUTION. * 18 Bramwell's view of the case was the right one, the fact that the evidence given by the defendant in prosecuting the plaintiff was false was essential to the decision of the question. In the other view it was material whether the substantially identical evidence which he gave before the county court judge was false. Yet, as one reads the case now, there seems to be no particular reason, except the verdict, for supposing that it was false. *In Eagar v. Dyott, 5 C. & P. 5 (1831), Harman, [ * 18 ] who was a co- defendant with Dyott, had been bound over to prosecute and give evidence by mistake, without his own consent, and did not employ the attorney for the prosecution, upon proof of which Lord Tenderden " directed an acquittal." Dubois v. Keats, 11 Ad. & E. 329 (1840), was chiefly relied upon for the plaintiff in Fitzjohn v. Mackinder. In that case Coleridge, J , had told the jury that if the defendant being bound over to prosecute was the result of a charge made maliciously before the magistrate, such binding over was no defence to the action. 1 The Court of Queen's Bench refused a rule for a new trial asked for on the ground that this was a misdirection; and, inasmuch as it only amounted to saying that a malicious prose- cution is actionable before the stage of committing for trial or binding over to prosecute is reached, there can be no doubt that they were right, although the bearing of the decision upon the question raised in Fitzjohn v. Mackinder is not so clear. It seems that an action will lie for a malicious prosecution in an Ecclesiastical Court. Fisher v. Bristoiv, 1 Dougl. 215 (1779), was an action for maliciously presenting the plaintiff for incest in the Ecclesiastical Court of the Archdeaconry of Huntingdon. A demurrer to the declaration on another ground (/ ) was sue cessful, but no objection was raised as to the nature of the pros- ecution. (/) Vide post, p. 99. 1 It is 110 defeuce that an affidavit was insufficient in law to authorize au arrest: Stocking v. Howard, 73 Mo. &> (1880); contra, Hanes v. Kohler, 25 Kans. 640 (1881), Valentine, J. 25 MALICIOUS PROSECUTIONS. [ * 19 ] * CHAPTER III. WRONGS RESEMBLING MALICIOUS PROSECUTION. It has been held, or suggested, that actions may lie for various torts more or less closely analogous to malicious prosecution. The chief of these are: Malicious arrest [this is nearly obsolete]: Bringing or conspiring to bring a civil action vexatiously: Maliciously .taking proceedings in bankruptcy: Maliciously presenting a petition for the winding-up of a company: Maliciously obtaining a search warrant for goods : Maliciously obtaining a search warrant under the Criminal Law Amendment Act, 1885 : Maliciously exhibiting Articles of the Peace. Malicious arrest. Owing to the abolition of arrest on mesne process, this subject has lost its importance. But there never was .any doubt that maliciously and without reasonable and prob- able cause to procure the arrest of anyone was actionable. 1 Scheibel v. Fairbairn, 1 B. & P. 388 (1799); Gibson v. Chafers, 2 B. & P. 129 (1800); Page v. Wiple, 3 East, 314 (1803); Jen- nings v. Florence, 2 C. B. N. S. 467 (1857); Gilding v. Eyre, IOC. B. &N. S. 592 (1862). If the arrest was for a larger sum than was due it might be malicious as to the excess, 2 though justifiable as to the debt. Where the defendant had obtained judg- [ *20 ] ment against the plaintiff for 115Z. 2s., * and also in a separate action for the same debt, against C. for 100?. 1 The remedy for causing an arrest by maliciously bringing a suit upon false charges or maliciously making a false affidavit is an action on the case for malicious prosecution: Everett r. Henderson, 146 Mass. 93 (1888). Knowl- ton, J. In Wheeler w. Nesbitt, 24 How. (U. S.), 545 (1860); Clifford, J. ruled that us the magistrate who issued the warrant was one of the parties sued and there was probable cause for his arrest, he could be detained a reasonable time, as he neglected satisfactory security. '-' I)einaiidin^ excessive bail, when the plaintiff has a good cause of action or holding to bail when there is no cause of action, if done vexntiously, en- titles the party injured to an action for malicious prosecution: Ray v. Law, 1 Peters C. C. 207 (1816), Washington, J. ' 26 WRONGS RESEMBLING MALICIOUS PROSECUJION. * 21 10s. and ihe judgment debt of 100Z. 10s. had been satisfied by C., and the defendant arrested the plaintiff on a ca. sa. for the whole sum of 115Z. 2s., and imprisoned him for four weeeks till he ob- tained a judge's order for his release, the declaration was held good on demurrer by Lord Campbell, though it would not have been good if malice and want of reasonable and probable cause had not been averred Churchill v. Siggers, 3 E. &. B. 929 (1854). It would seem, on the analogy of these cases, that an action would lie for maliciously and unreasonably causing the plaintiff to be detained under a writ of ne exeat regno. See Bank of British North America v. Strong, 1 App. Gas. 307 (1876). Bringing or conspiring to bring a civil action malici- ously. It is doubtful whether an action lies for suing or apart from the law of maintenance for conspiring to sue the plaintiff vexatiously at Nisi Prius. In Cotterell v. Jones, 11 C. B. 713 (1851), a declaration to this effect was held bad on demurrer, be- cause it did not show legal damage. Williams, J., said, in the course of his judgment: ''For improperly putting the law in motion in the name of a third person, ... if there be malice and want of reasonable and probable cause, no doubt the action will lie, provided there be also a legal damage." The other judges expressed no opinion on the point. A somewhat similar case is mentioned in the Year * Book [ * 21 ] (3 As. 13, 1275) : "Un bill de Conspiracie fuit maintenu en Bank le Roy p agard pur celuy q fuit endire [ ? endite] de comon trespas, and acquit, non obstant que ceo ne fuit mie felonie." But in this case the proceeding is described as an in- dictment ; and there is no doubt that trespass was at that date in some degree of a criminal character (a). Fitzherbert also states (F. N. B. 116) that "the action [of conspiracy] lies for bringing groundless actions at Nisi Prius." In Attwood v. Monger, Style, 378 (1653), Eoll, C. J., said: "I hold that an action upon the case will lye for maliciously bring- ing an action against one where he had no cause ; and if such actions were used to be brought it would deter men from such malicious courses as are often put in practice." It is, however, not clear that he was speaking of civil actions. l (a] See note by Mr. F. W. Maitland in Pollock's Law of Torts. 1 Notwithstanding the decided stand of the English courts, the law of this country is well settled that the action may be founded on a civil suit: Pang- 27 *22 MALICIOUS PROSECUTIONS. There are two precedents for actions for maliciously and un- reasonably suing in rem and arresting ships. Castrique v. Beh- rens, 3 E. & E. 720 (1861), was an action for maliciously, and without reasonable and probable cause, suing the plaintiff in France in an action in rem, and causing his ship to be con- demned there. It was argued OQ demurrer in the Court of Queen's Bench, and decided in the defendant's favour, on the ground that the declaration did not allege the proceeding to have terminated favourably to the plaintiff (6). In [ * 22 ] Redway v. McAndrew, L. R. 9 Q. B. 74 (1873), * a declaration for maliciously and without reasonable and probable cause procuring the plaintiff's ship to be arrested and detained in England was held good on demurrer (by Blackburn and Archibald, JJ. ; Quain, J., diss. ); but, as in Castrique v. Beh- rens, the only point relied upon by the defendant was, that the declaration did not sufficiently show a termination of the pro- ceedings favourable to the plaintiff. The question, whether or not the action lay, does not seem to have been raised in argu- ment, and was not decided in the judgment in either of these cases. The view that no action lies at present for bringing, or con- spiring to bring, a civil action at any rate in personam ma- liciously and without reasonable cause, is strongly supported by the observations of Bowen, L. J., in Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. D. 674, at p. 690; and 52 L. J. Q. B. D. 488 (1883). Maliciously taking proceedings in bankruptcy. Actions have (b) Vide post, p. 100. burn v. Bull. 1 Wend. 345 (1828), Woodward, J.; Whipple r. Fuller, 11 Conn. 582 (1832), Church, J.; Cox v. Taylor, 10 B. Mon. 17 (1849), Marshall. C. J.; Closson v. Staples, 42 Vt. 209 (1869), Wilson, J.; Marbourg v. Smith, 11 Kans. 554 (1873), Valentine, J.; Wood v. Finnell, 13 Bush. 29 (1878), Grier, J. See an able article on the subject in 21 Amer. Law Eeg. 370; Butler's note to Co. Litt. 161 a. It is further maintained that the action may be founded on a civil suit though there were no seizure of person or property or other grievance occa- sioned: Whipple 0. Fuller, 11 Conn. 582; Pangburn v. Bull, 1 Wend. 354; Davis r. Gully. 2 Devx. & Batt, 360; McCardle v. McGinley, 86 Ind. 538, 44 Amer. Rep. note 346; Wood v. 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; Potter. Imley, 1 Southard, 331; Algor v. Stillwell, 1 Halstead, 166; Eberly v. Rupp, 90 Pa. 259 (1879); Muldoon v. 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 RESEMBLING MALICIOUS PROSECUTION. * 24 several times been maintained for maliciously and without rea- sonable and probable cause instituting procedings in bankruptcy. 1 The question appears to have been first raised in 1763, when it was argued, in Broicn 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. c. 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. Danks, 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 aud 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. 1 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. Someborn, 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 Gold 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, and the action was said by the Master of the Bolls 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 Viet. 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 Viet. 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 plaintiff. The Divisional (a) Vide ante, p. 8.