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Malicious Arrest (a).

Action for maliciously procuring the Plaintiff to be Arrested in Action for a Civil Suit.

malicious

arrest. 1. In August, 1877, the defendant H. C., as the holder of two bills of exchange for £100 and £75, which had been indorsed to him by the defendant F. G., brought an action on the said bills in the Queen's Bench Division of the High Court of Justice, against the plaintiff as drawer thereof. The plaintiff was not liable on the said bills, and on an affidavit, stating the grounds on which he was not liable, he obtained leave to appear and defend.

(a) This action was once pretty frequent, but since the 32 & 33 Vict. When a c. 62, s. 6, which abolished imprisonment for debt, it is of rare occurrence. person still Since that Act, however, a person may still, daring the course of civil liable to proceedings, be arrested in several cases; and in all these cases it is sub. imprisonmitted that a person is liable in an action for a malicious arrest if he, ment for acting maliciously and without reasonable and probable cause, sets the non-paylaw in motion and procures the arrest of another. By s. 4 of the ment of 32 & 33 Vict. c. 62, a person may be arrested-(1) who being a trustee money. fails to pay over trust moneys ordered by the Court to be paid over ; (2) who being a solicitor fails to pay any costs which he has been directed personally to pay; (3) who, being a bankrupt has failed to pay any instalments of income to the trustee in his bankruptcy which by the order of the Court he has been directed to pay.

By sect. 5, any person who fails to pay any debt due from him in pursuance of any order or judgment, may be committed to prison for six weeks on proof that he has the means of payment.

By section 6 it is enacted-(a) if à plaintiff shall at any time before Cases final judgment prove, by evidence on oath, to the satisfaction of a judge, where that he has a cause of action against the defendant to the amount of arrest on £50 or upwards, and that there is probable cause for believing that the mesne defendant is about to quit England, and that the absence of the de process fendant will materially prejudice the plaintiff in the prosecution of his legal. action, then it shall be lawful for the judge to order the defendant to be arrested and imprisoned for a period not exceeding six months, unless he gire security that he will not leave England without the leave of the Court; (b) where the plaintiff sues for a penalty other than a penalty in respect of any contract, it shall not be necessary for him to prove that the absence of the defendant will materially prejudice him in the prosecution of his action.

The foundation of the action for malicious arrest in one or other of The foun. these cases must be that the party obtaining the order for the arrest, and dation of who is the defendant, has imposed on the judge by some false state- the action ment; and this false statement and the surrounding circumstances for malimust be such as clearly to demonstrate that the defendant had no rea- cious sonable or probable cause for the step he took.

It must also be averted arrest. and proved that the order of arrest has been rescinded, and that the proceedings have terminated in the plaintiff's favour ; but this fact is not by any means conclusive to prove an absence of reasonable cause on the part of the defendant.

Action for malicious arrest.

2. After the plaintiff had appeared in the said action, the defendants, for the purpose of causing the plaintiff to be arrested and imprisoned, falsely and maliciously made affidavits that the plaintiff was indebted to the defendant H. C. in the said sums of £100 and £75, that the plaintiff intended to proceed abroad, and to leave England for the purpose of avoiding payment of the said debt, and that the plaintiff would be a material and necessary witness on the part of the defendant H. C., on the trial of the said action; and upon such affidavits, and upon the false and malicious statements therein contained, the defendants maliciously and without reasonable or probable cause procured from a judge an order to arrest and hold the plaintiff to bail, and under such order and writ caused the plaintiff to be arrested and imprisoned, and the plaintiff was kept in prison for some time, until he could apply for an order to set aside the said order and writ.

· 3. Subsequently, upon the plaintiff's application to the judge who had made the said order, the said order and writ were rescinded and set aside, and the plaintiff was released.

4. By the said arrest and imprisonment the plaintiff was prevented from attending to his business, and was injured in his credit, and sustained losses and incurred expenses in and about giving bail under the said order and writ, and in setting the same aside and in obtaining his release from the said imprisonment.

The plaintiff claims £1000.

Counter-claim (Statement of Claim and Defence not being given)

for Malicious Arrest. And by way of counter-claim the defendant says as fol

Counter

claim for a lows:

malicious arrest.

1. After the commencement of this action the plaintiff maliciously and without reasonable or probable cause, on the 10th of — 1876, procured from Mr. Baron H., being a judge of the Exchequer Division of the High Court of Justice, a special order of the said judge directing the defendant to be arrested and imprisoned for six months from the date of his arrest, unless and until the defendant should sooner deposit in Court the sum of £4000 by way of security, or give to the plaintiff a bond executed by the defendant and two sufficient

sureties in the penalty of £8000 or some other security satis- Counterfactory to the plaintiff that the defendant would not leave claim for a

malicious England without leave of the Court or a judge.

arrest. 2. The plaintiff procured the said order by falsely and maliciously representing to the said judge, by a false affidavit sworn on or about the 10th 1876, in effect that he the plaintiff had a cause of action against the defendant to the amount of £4400, that the defendant was about to leave England for the purpose of delaying the said action, and that the defendant was a material witness for the establishing of the plaintiff's claims. The defendant refers to the said affidavit aforesaid for the exact tenor of the said allegations.

3. Thereupon, in pursuance of the said order, the plaintiff had the defendant arrested, and detained and imprisoned the defendant in the debtors' prison at H.

4. On the facts of the case being brought by affidavit by the defendant before Mr. Baron H., the learned judge, by further order dated the 17th day of 1876, ordered the immediate discharge of the defendant.

5. By reason of the premises the defendant was put to great annoyance, expense, and inconvenience.

The defendant claims £1000 damages for the said malicious arrest.

Malicious Prosecution (a).

Action for Malicious Prosecution on a Charge of Embezzlement Statement and for False Imprisonment.

of claim for mali

cious prose1. The plaintiff is a manufacturer of household machinery, cution and resides at

and false
imprison

ment.
(a) An action for malicious prosecution is given where a person acting When an
maliciously and without reasonable or probable cause has preferred action for
against another in a criminal Court or before a judicial officer, a charge, malicious
which in the event has been decided to be false, but which during its

prosecupendency has inflicted some injury to the property, person, or reputation tion lies, of the plaintiff. The essential conditions to this action are then five :Ist. A criminal charge must have been preferred before a judicial officer.

1

Statement

2. The defendant is a manufacturer of agricultural impleof claim

ments, and resides at for mali

3. On or about the 24th day of May, 1877, the defendant cution, &c. gave the plaintiff into the custody of a police constable upon a

cious prose

A criminal Any act by which the criminal law is set in motion against another will charge not amount to a malicious prosecution. To give a man into the custody must have of a police constable on a charge of felony might be a false imprisonbeen made. ment; it would not be a malicious prosecution. “ There can be no

malicious prosecution until the parties come before a Court or a judicial officer." (Per Willes, J., in Austin v. Dowling, L. R. 5 C. P. 540, which

see for the distinction between false imprisonment and malicious proseThe crimi. cution.) 2nd. The charge must have been false in fact, and so deternal charge mined by the proper criminal Court before which it came. It is not must have necessary that the first Court before which the charge came should have been dis. decided it in the plaintiff's favour ; it is enough if a Court of Appeal missed. has given a decision in his favour, so that the ultimate determination

declares the falseness of the charge ; but subject to this, a man may be perfectly innocent of a charge that has been made against him, and prepared with abundant evidence to prove the fact, yet if a judgment of a com

petent Court remains on record, he caunot proceed with his action for Or con- malicious prosecution. The reversal of any conviction made upon the viction charge is a condition precedent to his right to sue in all cases save one. quashed.

It has been decided that a malicious exhibition of articles of the peace against another, (which is of course a species of prosecution,) supported by a false oath of threats having been used, may be made the foundation of an action for damages, although the accused person has been required

to find sureties and been imprisoned for default. (Steward v. Gromett, Exception. L. J. 29 C. P. 170), and the reason of this exception from the general

rule is that proceedings before justices in cases of the kind are generally ex parte, the accused has no means of controverting the charge, and the justices have little or no option to refuse to bind him over, when the person exhibiting the articles swears that he is in bodily fear. 3rd. The prosecution must be malicious, that is to say, instituted from any other motive than the simple desire of bringing to justice one whom you

believe has committed a crime. (See Stevens v. Midland Rail. Co., 23 Malice

L. J. Ex. 328.) But “ Malice alone is not sufficient to found the action, necessary.

because a person actuated by the plainest malice may nevertheless have a justifiable reason for a prosecution.” (Per Tindal, C. J., in Willans v. Taylor, 6 Bing. 186.) Where, however, the judge rules (for it is his province to determine this, the facts being found by the jury) that there is no

reasonable or probable cause for the prosecution, the jury may from that Want of infer malice."(Busst v. Gibbons, 30 L. J. Exch. 75.) 4th. The prosecureasonable tion must have been without reasonable or probable cause. It is im

possible to lay down any general rule as to what constitutes a want bable of reasonable or probable cause for a prosecution ; but the facts of the

particular case ought to be such as to satisfy a reasonable mind that the accuser bad little or no ground for the proceeding but his desire to injare the accused, or that he acted in the matter recklessly and carelessly, not caring what mistake he might make, and forbearing to institute reasonable

inquiries which would readily have removed any little suspicion that What

might attach to the accused. Evidence that the accuser did not himself amounts to. believe in the charge which he made is cogent evidence that he had no

reasonable or probable cause ; but from the most express malice merely the want of probable cause cannot be implied. (Turner v. Ambler, 10 Q. B. 252.) 5th. In order to recover damages in this action the plaintiff must show that he has suffered either in person, reputation, or pocket.

and pro

cause.

false charge that the plaintiff had committed a felony, and Statement compelled him to go to a police station, and there caused him of claim

for malito be imprisoned and to be kept in prison until the next day, cious prosewhen he was brought before a magistrate at the C. police cution. court upon the said charge.

4. On the hearing of the said charge the defendant falsely and maliciously and without reasonable or probable cause appeared before the said police magistrate and charged the plaintiff with having feloniously embezzled certain moneys of the defendant.

5. The said police magistrate having heard the said charge, dismissed the same, and discharged the plaintiff out of custody, whereby the said prosecution was determined.

6. By reason of the premises the plaintiff has been injured in his reputation, and suffered pain of body and mind, and was prevented from attending to his business, and incurred expense in defending himself from the said charge, and in obtaining his release from the said imprisonment.

The plaintiff claims £500 damages.

and pro

cause.

Statement of Defence. 1. The defendant admits that on the 24th of May, 1877, he Defence gave the plaintiff into the custody of a police constable on a setting out

reasonable charge of felony.

2. Prior to, at, and after the 1st of May, 1877, the plaintiff bable acted as the defendant's agent for the sale of the defendant's goods at York.

3. It was part of the plaintiff's duty to collect for the defendant all moneys due and owing to him in respect of the sale of the said goods, when received to enter the same as paid in certain books kept for that purpose, and forthwith to forward such moneys to the defendant without making any deductions therefrom.

4. On the 1st of May, 1877, the plaintiff as the defendant's

It is generally very easy to aver and prove sufficient damage to ground Evidence of the action, for it is seldom that the charge is not so scandalous as that the damage. mere preferring of it is not some injury to the plaintiff's reputation, and it almost always happens that the plaintiff is put to some expense in defending himself from it, which he can allege in his statement of claim, and in respect of which he can recover.

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