ble cause, as it may proceed upon strict legal grounds. But if it appear that the facts upon which the commission is founded, do not amount to an act of bankruptcy, it will be sufficient to call upon the defendants to prove the affirmative of probable cause. For evidence of the absence of probable cause 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, especially where the nature of the affirmation is such as to admit of proof by witnesses, and cannot depend upon matters lying exclusively within the party's own knowledge, as in some cases of criminal prosecution it may do.b

An action on the case may be maintained for maliciously causing the plaintiff to be excommunicated in the Ecclesiastical Court. So it lies at the suit of the husband for the expenses incurred in consequence of the malicious prosecution of his wife. So it lies for maliciously obtaining or executing a warrant to search a house for smuggled goods, if none be found there. If a magistrate maliciously grants a warrant against another, without any information, upon a supposed charge of felony, the remedy against him is trespass and not case. But though it may be trespass in the magistrate to grant an illegal warrant, yet an action on the case may be supported against the person who causes and procures such warrant to issue, if it is done maliciously, and without reasonable or probable cause.s But to sustain an action against a party for preferring a charge before a magistrate, and procuring him to grant his war*1289 *rant, the charge must be wilfully false. It is no objection to an action for a malicious prosecution, that the plaintiff was acquitted, on account of a defect in the indictment. A rule for a criminal information obtained by the plaintiff in an action for the malicious prosecution of an indictment, and made absolute, is no bar to such action, although the indictment was against the plaintiff and another person.)

But an action on the case to recover damages against the lessor of the plaintiff, in a vexatious ejectment, is not maintainable And if A. strike B., and B. return the blow, on which A. indicts B. for an assault, the bare fact of A. having struck the first blow, is not sufficient to support an action for a malicious prosecution.'

Hay v. Weakley, 5 C. & P. 361. Cotton v. James, 1 B. & Ad. 128. Hocking v. Mathews, 1 Vent. 86. Beaurain v. Scott, 3 Camp. 388.

C

Smith v. Hixon, 2 Stra. 977. Cas. temp.
Boot v. Cooper, 1 T. R. 535, n.
Elsee v. Smith, (in error,) 1 D. & R. 97.
Eng. C. L. 344.)

Cohen v. Morgan, 6 D. & R. 8.
Wicks v. Fentham, 4 T. R. 247.
L. 217.)

Caddy v. Barlow, 1 M. & R. 275. * Purton v. Honnor, 1 B. & P. 205.

Hard. 54. B. N. P. 13. Morgan v. Hughes, 2 T. R. 255. (16 Eng. C. L. 19.) 2 Chit. 304. (18

(16 Eng. C. L. 250.)

Pippet v. Hearn, 5 B. & Ad. 634. (7 Eng. C.

And see Rex v. Sparrow, 2 T. R. 198.
Fish v. Scott, Peake, 135.

SECTION II.

WHEN AN ACTION ON THE CASE WILL LIE FOR A MALICIOUS
ARREST.

AN action on the case will lie for maliciously arresting a party for a debt, where none is due, or for a larger sum than is really due. Where there are mutual accounts between the parties, the balance only is to be considered as the existing debt, for the purpose of arrest, and an action will lie against a party for arresting a debtor for the amount of one side of the account, without deducting what is due on the other. So, if a party, though having a reasonable and probable cause, arrests a person privileged from arrest; as where a creditor arrested a practising attorney for a just debt; it was held, that he was liable to an action for a malicious arrest, and that the fact of his knowing him to be an attorney, was an ingredient from which the jury might infer malice.b

*An action lies for maliciously holding a party to bail, although *1290 he is never arrested, but is told that there is a writ out against Holding him, and he goes to the sheriff's officer and gives bail. But to bail. where an officer, who had a writ against a man, sent to him to say so, and asked him to appoint a time to come to his office and execute a bail bond, which he did; held, not to constitute an arrest, so as to support an action for a malicious arrest. For the officer did no more than merely to give notice of the writ.d And where A. by mistake sued out a bailable writ against B., and gave it to C., an officer, to be executed; C. said to B. he had a writ against him, but B. denying that he owed the money, C. did not take him into' actual custody. On inquiry, the mistake was discovered, and B. was told he need give himself no farther trouble in the matter; however, he afterwards put in bail above, and incurred an expense of 147.; held, that he could not maintain an action against A. for a malicious arrest. An action lies for maliciously suing plaintiff in an inferior court, and arresting him when that court had no jurisdiction of the cause. It seems that a party is liable to this action, though the arrest was made by his attorney, without his (the defendant's) knowledge or consent.

Austin v. Debnam, 3 B. & C. 139, (10 Eng. C. L. 37,) where Abbott, C. J., disapproves of the decision in Brown v. Pigeon, 2 Camp. 594, holding the contrary. Wentworth v. Bullen, 9 B. & C. 840. (17 Eng. C. L. 503.) See Dronefield v. Archer, 5 B. & A. 513. (7 Eng. C. L. 177.)

Whalley v. Pepper, 7 C. & P. 506 (32 Eng. C. L.)

Small v. Gray, 2 C. & P. 605. (12 Eng. C. L. 284.)

a Berry v. Adamson, 6 B. & C. 528. (13 Eng. C. L. 245.) 2 C. & P. 503. (12 Eng. C. L. 235.)

Bieten v. Burridge, 3 Camp. 139.

Goslin v. Wilcock, 2 Wils. 302. And see Smith v. Chattel, 2 Wils. 376.
Jones v. Nicholls, 3 M. & P. 12.

There

evidence

SECTION III.

MALICE AND WANT OF PROBABLE CAUSE.

To sustain an action for a malicious arrest there must be must be evidence of malice."(1) And even where the writ was sued out after payment of the debt, the facts of the case precluding of malice and want any inference of malice, it was held, that an action for maliof proba- cionsly holding to bail, would not lie without direct evidence ble cause. of malice. A discontinuance of the action has been held not *1291 *to be evidence of want of probable cause, so as to afford a presumption of malice. So where the plaintiff was arrested by the indorser of a bill, purporting to be drawn on and accepted by him, but not in fact accepted by him; it was held, not to be sufficient to support an action for a malicious arrest, the defendant having acted under a mistake and without malice.d But where A. arrested B., for money paid to his use, on the 10th of December, and was ruled to declare on the 17th; filed a declaration on the 24th, and discontinued the action, upon payment of costs, on the 31st; held, in case for a malicious arrest, that this was a sufficient prima facie evidence of malice, and want of probable cause. So where a defendant, on being taken in execution under a writ of ca. sa., tendered the debt and costs to the plaintiff's attorney, required him to sign his discharge, which he refused to do until he had paid an independent collateral demand for costs; held, that the plaintiff and his attorney were liable to an action on the case for such refusal, and that the refusal was prima facie evidence of malice.

To sustain an action against an attorney for a malicious arrest, it must appear to the satisfaction of the jury that there

Scheibel v. Fairbain, 1 B. & P. 388. Page v. Wiple, 3 East, 314. George v. Radford, 3 C. & P. 464. (14 Eng. C. L. 391.)

Gibson v. Chaters, 2 B. & P. 129. And see Silversides v. Bowley, 1 Moore, 92, (4 Eng. C. L. 387,) and James v. Francis, 5 Price, 1.

Bristow v. Heywood, 1 Stark. 48. (2 Eng. C. L. 289.)

Spencer v. Jacob, M. & M. 180. (22 Eng. C. L. 284.) And see Jackson v. Burleigh, 3 Esp. 34.

Nicholson v. Coghill, 6 D. & R. 12 4 B. & C. 21. (10 Eng. C. L. 269.) 'Crozer v. Pilling, 6 D. & R. 129. 4 B. & C. 26. (10 Eng. Č. L. 271.)

(1) (The technical malice necessary to support an action for a vexatious suit, is any improper motive, and does not necessarily imply malignity or even corruption in the appropriate sense of these terms. Ives v. Bartholomew, 9 Conn. 309. Malice may be, and most commonly is, in such actions, implied from the want of probable cause. The defendant, for the purpose of rebutting the inference of malice, may be let in to show for instance that he acted by the advice of counsel. The effect of such evidence is, however, for the jury. Turner v. Walker, 3 Gill & Johns. 377. Upon the facts proved, the question of what is probable cause, is law for the court. Pangburn v. Bull, 1 Wend. 345. Maston v. Dryo, 2 Wend, 424. As to other cases on evidence of probable cause, see Burt v. Place, 4 Wend. 591. Gorton v. De Angelis, 6 Wend. 418. Weaver v. Townsend, 14 Wend. 192. French v. Smith, 4 Vermont, 363. Wills v. Noyes, 12 Pick. 324. Wengert v. Beashore, 1 Penna. 232. Wilmarth v. Mountford, 4 Wash. C. C. Rep. 79.)

was no reasonable or probable cause for the arrest, and that the defendant, being aware of that, caused the arrest to be made for some sinister purpose of his own. It is not necessary in such case to prove malice in fact; any improper or sinister motive will be sufficient. It is, however, a good defence to such action, that the defendant implicitly obeyed the instructions of his client."

ry.

We have seen that in order to sustain this action, there must Malice is be evidence of malice, and want of probable cause; it is ob- a question for the juservable, that malice is altogether a question for the jury, and that it is not necessarily implied so as to withdraw it from their consideration, even where want of probable cause is clearly proved, though the jury may infer malice from that circumstance. Probable cause is a mixed proposition of law and Probable fact; when the facts are admitted or ascertained, it is a pure cause is a question of law, and it is for the court to pronounce whether question such facts constitute a probable cause; but if the circumstances of law and alleged to show a probable cause are disputed, it is for the jury fact. to decide whether they are true or not.

mixed

*"It is difficult," said Lord Tenterden, C. J., "to lay down *1292 any general rule as to the cases where the opinion of the jury should or should not be taken upon this point. I have con

sidered the correct rule to be this; if there be any fact in dispute between the parties, the judge should leave that question to them, telling them, if they should find one way as to that fact, then, in his opinion, there was no probable cause, and their verdict should be for the plaintiff. If they should find in the other, then there was, and their verdict should be for the defendant."

Where in an action for maliciously indicting A. for perjury, it appeared that the defendant B., in 1824, preferred the indictment, and gave evidence before the grand jury, that the bill was found and removed into K. B., and tried in 1827; that B. was in court at the trial, but offered no evidence, and A. was acquitted; the judge, in his direction, told the jury that if the defendant abstained from giving evidence, from a consciousness that he had no evidence to give which would support the indictment, then there was want of probable cause, and they should find for the plaintiff; but if he did not abstain from giving evidence on that ground, then there was no proof of want of probable cause, and they should find for the defendant. The jury having found a verdict for the plaintiff; held, upon error, and a bill of exceptions, whereby the objections stated to

Stockley v. Hornidge, 8 C. & P. 11.

Mitchell v. Jenkins, 5 B. & Ad. 588. (27 Eng. C. L. 131.) 2 N. & M. 301. See Burley v. Bethune, 5 Taunt. 583. (1 Eng. C. L. 196.)

Sutton v. Johnstone, 1 T. R. 545. Nicholson v. Coghill, 4 B. & C. 21. (10 Eng. C. L. 269.) Per Lord Denman, C. J., 5 B. & Ad. 594. (27 Eng. C. L. 131.) Per Lord Tenterden, C. J., in Blachford v, Dod, 2 B. & Ad. 184. (22 Eng. C. L. 53.)

the summing up were, that the judge himself ought to have determined upon the facts, whether there was probable cause or not, that the direction of the learned judge was not incorrect; for it was for the jury to determine the facts which include the motives of the parties; and as the motive which induced the defendant to forbear giving evidence, was an essential ingredient in the case, it was for the jury to infer the motive from

the facts.

Where, in an action for a malicious prosecution, the plaintiff proved a case, which in the opinion of the learned judge showed that there was no reasonable or probable cause for *1293 preferring the indictment; the defendant then called a witness to prove an additional fact, and that being proved, the learned judge was of opinion that there was reasonable and probable cause for preferring the indictment; held, that there being no contradictory testimony as to that fact, and there being nothing in the demeanor of the witness who proved it to impeach his credit, the learned judge was not bound to leave it to the jury to find the fact, but that he might act upon it as a fact proved, and nonsuit the plaintiff.b

But in an action on the case, for taking the plaintiff to a police office, on a charge of having uttered menaces against the defendant's life, and causing him to be imprisoned until he found bail; the court held, that it was not for the judge alone to determine whether the menaces justified the charge, but that it should have been left for the jury to say, whether the defendant had believed the menaces, and had acted bond fide in preferring the charge, before the judge had decided whether or not there was reasonable and probable cause.

Where, in an action for a malicious prosecution, it appeared that the plaintiff, a servant, being discharged from service on a Friday, took away with her from her master's house a trunk and bag, the property of her master; the defendant, her master, wrote to her the next day, demanding his property, and threatening to proceed criminally on the Monday following, if it were not restored; the plaintiff being absent from home when the letter was delivered, no answer was returned; whereupon the master, the same day, Saturday, had her taken into custody, but when she was brought before the magistrates on Monday, declined to make any charge; held, that considering the nature of the facts, the judge was justified in leaving it to the jury, whether the defendant had reasonable or probable cause to institute the proceedings.d

If a party lays all the facts of his case fairly before counsel,

Taylor v. Willans, 2 B. & Ad. 845; (22 Eng. C. L. 195;) nom. Willans v. Taylor, 6 Bing. 183. (19 Eng. C. L. 47.) 3 M. & P. 350.

Davis v. Hardy, 6 B. & C. 225. (13 Eng. C. L. 152.)

Venafra v. Johnson, 10 Bing. 301. (25 Eng. C. L. 141.) 3 Moor & Scott, 847. a M'Donald or M'Donnell v. Rooke or Brooke, 2 Bing. N. C. 217. (29 Eng. C. L. 312.) 2 Scott, 359. 1 Hodges, 314.