MALICIOUS PROSECUTION AND ABUSE OF PROCESS
HALBERSTADT _v._ NEW YORK LIFE INSURANCE CO.
COURT OF APPEALS, NEW YORK, JANUARY 5, 1909.
_Reported in 194 New York Reports, 1._
The action is brought to recover damages for an alleged malicious
prosecution claimed to have been instituted by the respondent against
the appellant in Mexico. It is in the complaint, amongst other things,
alleged that the respondent through its agent in the Criminal Court of
the city of Mexico charged the appellant with the crime of embezzlement
“and thereupon and in and by virtue of said charge and the institution
of said criminal proceedings a warrant was issued by said court for the
arrest of the plaintiff (in this action),” and that thereafter “the said
criminal proceedings for the punishment of said plaintiff were dismissed
and extinguished and the said prosecution was thereby wholly
determined ... in favor of the plaintiff.”
The respondent, by its second defence, which is challenged here for
insufficiency, alleged, in substance, that before the warrant referred
to in the complaint could be served upon the appellant and before he
could be apprehended, “he left the Republic of Mexico and thereafter
continuously remained absent ... and by such absence avoided being
arrested under such warrant, or being tried ... but remained absent from
said Republic of Mexico for a sufficient period of time to enable him to
procure the dismissal of said proceedings under the law of Mexico on
account solely of the lapse of time,” and, conversely, that said
criminal proceedings “were not dismissed on account of a determination
of the case in favor of the plaintiff on the trial thereof on the
merits, nor was it dismissed for failure to prosecute said case except
as above set forth, nor was it dismissed on account of any withdrawal of
the complaint.”
The plaintiff demurred to this defence and also to the third defence
which was not materially different from the second. The demurrer was
sustained at Special Term. This judgment was reversed by the General
Term, and the plaintiff now appeals.[370]
HISCOCK, J. The respondent’s first reply to the appellant’s attack upon
its answer is of the _tu quoque_ nature, it insisting that the complaint
is as deficient in the statement of a good cause of action as the answer
is alleged to be in the statement of a good defence. This contention is
based upon the fact that the complaint does not allege any act
subsequent or in addition to the mere issuance of a warrant in the
criminal proceeding complained of; does not allege that the warrant was
ever executed in any way whatever, or that the appellant was ever
actually brought into said proceedings either by force of process or
voluntary appearance. Therefore, the question is presented whether the
mere application for and issuance to a proper officer for execution of a
warrant on a criminal charge may institute and constitute such a
prosecution as may be made the basis of a subsequent civil action by the
party claimed to have been injured. In considering this question we must
keep in mind that the facts alleged in the complaint, and in the light
of which it is to be determined, do not show, as the answer does, that
the defendant in those proceedings was beyond the jurisdiction of the
court.
This question does not seem to have been settled by any decision which
we regard as controlling on us.
The respondent cites the following authorities deciding it in the
negative: Newfield _v._ Copperman, 15 Abb. Pr., N. S., 360; Lawyer _v._
Loomis, 3 T. & C. 393; Cooper _v._ Armour, 42 Fed. 215; Heyward _v._
Cuthbert, 4 McCord, 354; O’Driscoll _v._ M’Burney, 2 Nott & McCord, 54;
Bartlett _v._ Cristliff, 14 Atl. R. 518; Gregory _v._ Derby, 8 C. & P.
749; Paul _v._ Fargo, 84 App. Div. 9.
The case last cited was concerned with an alleged malicious prosecution
by means of civil process and what was there said must be interpreted
with reference to that fact, and thus interpreted it is not applicable
here. Of the other cases, only two, Heyward _v._ Cuthbert and Cooper
_v._ Armour, considered the question here involved with sufficient
thoroughness to require brief comment. An examination will show that the
decision in each of them rested in whole or part on a principle not, as
I believe, adopted in this state. In the former it was said that “The
foundation of this sort of action is the wrong done to the plaintiff by
the direct detention or imprisonment of his person.” As I think we shall
see hereafter, that is not a correct statement of the law in this state.
In the other case it was stated, “The only injury sustained by the
person accused, when he is not taken into custody, and no process has
been issued against him, is to his reputation; and for such an injury
the action of libel or slander is the appropriate remedy, and would seem
to be the only remedy.” I think that this doctrine, which if correct
would provide an adequate remedy outside of an action for malicious
prosecution for an injured party in a case where no warrant had been
executed, also is opposed to the weight of authority both in this state
and elsewhere hereafter to be referred to.
The authorities holding to the contrary on the question above stated,
and that the execution of the warrant is not necessary to lay the
foundation for an action of malicious prosecution, are: Addison on
Torts, vol. 2 [4th Eng. ed.], p. 478; Newell on Malicious Prosecution,
sect. 30; Stephens on Malicious Prosecution, Am. ed., sect. 8; Stapp
_v._ Partlow, Dudley’s Repts., (Ga.) 176; Clarke _v._ Postan, 6 C. & P.
423; Fezale _v._ Simpson, 2 Ill. 30; Britton _v._ Granger, 13 Ohio Cir.
Ct. Repts. 281, 291; Holmes _v._ Johnson, Busbee’s L. R. 44; Coffey _v._
Myers, 84 Ind. 105.
And to the like effect in the absence of special statutory provisions in
Swift _v._ Witchard, 103 Ga. 193.
Thus it is apparent, as before stated, that there is no controlling
decision on this question and we are remitted to a search for some
general considerations which may be decisive. It seems to me that these
may be found and that they favor the view that a prosecution may be
regarded as having been instituted even though a warrant has not been
executed.
The first one of these considerations is found in the rule applied in
civil actions and proceedings to an analogous situation. There it has
many times been held that the mere issue of various forms of civil
process for service or other execution is sufficient independent of
statute to effect the commencement of a case or proceeding. Carpenter
_v._ Butterfield, 3 Johns. Cases, 146; Cheetham _v._ Lewis, 3 Johns. 42;
Bronson _v._ Earl, 17 Johns. 63; Ross _v._ Luther, 4 Cowen, 158; Mills
_v._ Corbett, 8 How. Pr. 500; Hancock _v._ Ritchie, 11 Ind. 48, 52;
Howell _v._ Shepard, 48 Mich. 472; Webster _v._ Sharpe, 116 N. C. 466,
471.
I see no reason why a similar rule should not be applied to criminal
proceedings, at least for the purposes of such an action as this.
Then there is another reason resting on justice which seems to me to
lead us to adopt this conclusion. In opposition to what was said in the
South Carolina case already referred to, the sole foundation for an
action of malicious prosecution is not “the wrong done to the plaintiff
by the direct detention or imprisonment of his person.” In an action for
false imprisonment that would be so. But in an action of the present
type, the substantial injury for which damages are recovered and which
serves as a basis for the action may be that inflicted upon the
feelings, reputation and character by a false accusation as well as that
caused by arrest and imprisonment. This element “indeed is in many cases
the gravamen of the action.” Sheldon _v._ Carpenter, 4 N. Y. 579, 580;
Woods _v._ Finnell, 13 Bush Repts. 628; Townsend on Slander, sec. 420;
Wheeler _v._ Hanson, 161 Mass. 370; Gundermann _v._ Buschner, 73 Ill.
App. 180; Lawrence _v._ Hagerman, 56 Ill. 68; Davis _v._ Seeley, 91
Iowa, 583.
But no matter how false and damaging the charge may be in a criminal
proceeding upon which a warrant may be issued, damages for the injury
caused thereby cannot under any ordinary circumstances be recovered in
an action for libel or slander. Howard _v._ Thompson, 21 Wend. 319, 324;
Woods _v._ Wiman, 47 Hun, 362, 364; Sheldon _v._ Carpenter, _supra_;
Dale _v._ Harris, 109 Mass. 193; Gabriel _v._ McMullin, 127 Iowa, 427;
Hamilton _v._ Eno, 81 N. Y. 116; Newell on Malicious Prosecution, sec.
10.
Therefore, it follows that a person who has most grievously injured
another by falsely making a serious criminal accusation against him
whereon a warrant has been actually issued, may escape all liability by
procuring the warrant at that point to be withheld unless an action for
malicious prosecution will lie. It seems to me that under such
circumstances we should hold that such action will lie, if for no other
reason than to satisfy that principle of law which demands an adequate
remedy for every legal wrong.[371]...
VANN, J. I concur in the result because there was merely an attempt to
prosecute with no actual prosecution. The Mexican court did not acquire
jurisdiction of the person of the plaintiff, for he was not arrested,
nor was process or notice of any kind served upon him. He was not
brought into court and the prosecution could not end because it was
never begun. He could not be a party defendant until he was notified or
voluntarily appeared. He was threatened with prosecution, but neither
his person nor his property was touched. There can be no prosecution
unless knowledge thereof is brought home to the alleged defendant in
some way. If there had been a prosecution commenced the crime could not
have outlawed during the defendant’s absence, as is admitted of record.
While in civil actions, in order to arrest the Statute of Limitations,
“an attempt to commence an action, in a court of record, is equivalent
to the commencement thereof,” still the attempt goes for naught unless
followed by service, actual or constructive, within sixty days. (Code
Civil Proc. § 399.) The rule was similar at common law. Although, in
order to prevent injustice, an action was deemed to be commenced by the
delivery of process for service, it was never treated as effectual for
any purpose unless actual service was subsequently made. The authorities
cited in the prevailing opinion illustrate this proposition.
In the absence of controlling authority, which it is conceded does not
exist, I favor restricting rather than enlarging the scope of the
action. This accords with the general position of the court upon the
subject.
GRAY, HAIGHT and CHASE, JJ., concur with HISCOCK, J.; CULLEN, CH. J.,
and WILLARD BARTLETT, J., concur with VANN, J.
_Order affirmed._[372]
CHAMBERS _v._ ROBINSON
AT NISI PRIUS, CORAM RAYMOND, C. J., HILARY TERM, 1726.
_Reported in 2 Strange, 691._
An action for a malicious prosecution of an indictment for perjury.
Upon the trial it appeared, the perjury was ill-assigned, so that the
now plaintiff could not have been convicted; and that exception was
taken to it by the judge, and he was acquitted without any examination
of witnesses. But the Chief Justice held the action lay, though it was
a faulty indictment, relying upon the case of Jones _v._ Gwynn, where
the distinction in Salk. 13 was denied, and held by the whole court
that the action would lie, though the indictment was bad; a bad
indictment serving all the purposes of malice, by putting the party to
expense, and exposing him, but it serves no purpose of justice in
bringing the party to punishment if he be guilty.[373]
BYNE _v._ MOORE
IN THE COMMON PLEAS, NOVEMBER 13, 1813.
_Reported in 5 Taunton, 187._[374]
This was an action for a malicious prosecution in indicting the
plaintiff for an assault and battery. The only evidence on the part of
the plaintiff being, that the bill was preferred and not found, Lord
Chief Baron Macdonald who tried the cause, nonsuited him.[375]
BEST, Serjt., had obtained a rule _nisi_ to set aside that nonsuit and
have a new trial; against which
_Shepherd_, Serjt., showed cause.
MANSFIELD, C. J. I feel a difficulty to understand how the plaintiff
could recover in the present action, wherein he could recover no
damages, because he clearly has not proved that he has sustained any:
I can understand the ground upon which an action shall be maintained
for an indictment which contains scandal, but this contains none, nor
does any danger of imprisonment result from it: this bill was a piece
of mere waste paper. All the cases in Buller’s Nisi Prius, 13, are
directly against this action, for the author speaks of putting the
plaintiff to expense, and affecting his good fame, neither of which
could be done here. If this action could be maintained, every bill
which the grand jury threw out would be the ground of an action. The
judge too might certify in this cause against the costs, if the
damages had been under 40s.
HEATH, J., concurred.
CHAMBRE, J. It would be a very mischievous precedent if the action
could be supported on this evidence.
_Rule discharged._[376]
STEWARD _v._ GROMETT
IN THE COMMON PLEAS, NOVEMBER 11, 1859.
_Reported in 7 Common Bench Reports, New Series, 191._
ERLE, C. J.[377] I am of opinion that our judgment in this case must
be for the plaintiff. It is an action against the defendant for
falsely and maliciously, and without reasonable or probable cause,
making information on oath before a magistrate that the plaintiff had
used threatening language to him, whereby he went in fear of bodily
harm, and so procuring a warrant under which the plaintiff was
incarcerated in the castle at Swaffham, for want of sureties, for a
period of six months. It is admitted on the pleadings that the
defendant did falsely and maliciously, and without reasonable or
probable cause, procure that wrong to be done to the plaintiff; and
the question is whether the declaration shows enough to entitle the
plaintiff to maintain an action for that wrong. This is in some sort
an action for a malicious prosecution; and it has been contended by
Mr. Couch, for the defendant, that the case falls within the ordinary
rule applicable to such actions, that the plaintiff must show that the
proceeding terminated in his favor, and that no action lies where they
are shown to have terminated against the accused. But I am of opinion
that the distinction taken by Mr. Keane removes that objection, and
shows that that rule does not apply to this case, because the
proceeding before the magistrate being founded upon a statement which
the party charged is not at liberty to controvert, is an _ex parte_
proceeding, and, although it attains the result which is sought, it is
not a judgment, but is in the nature of a writ of process. It is not
like the case of an application to a magistrate upon a matter on which
he is to exercise his discretion: there, the injury sustained by the
party is the act of the law, and therefore no action lies unless the
person who sets the magistrate in motion is actuated by malice. But
here the law was directly put in motion by the defendant against the
plaintiff, and, it must be assumed, falsely and maliciously and
without reasonable or probable cause. If a party goes before a judge,
under the 1 & 2 Vict. c. 110, with an affidavit of debt for the
purpose of procuring a capias to arrest his debtor, upon a suggestion
that he is going abroad, and that is done falsely and maliciously, and
without reasonable or probable cause, an action lies. So, if a party
go to the Court of Queen’s Bench, and maliciously exhibit articles of
the peace against another, supported by a false oath that such other
had used threats against him, his statement being incontrovertible, it
is clear to my mind that an action would lie. Can it make any
difference that here the proceeding took place before a magistrate? It
seems to me that the two proceedings are quite analogous: the same
remedy is sought, only by a different mode. As in the one case the
truth of the articles cannot be controverted, so in the other the
statement made before the magistrate upon oath cannot be contradicted
by the accused. There is not the least sign of authority to show that
the magistrate had any discretion, so that the plaintiff might have
had a decision in his favor. In Burn’s Justice, sureties of the peace
are treated as being subject to precisely the same rule as articles of
the peace at the sessions or in the Court of Queen’s Bench, in respect
of their truth being incontrovertible. And there is strong reason for
assuming that to be the true state of the law; the fact of there being
no authority exactly in point as to sureties of the peace, may well be
accounted for by supposing that no one has entertained doubt enough
upon it to take the opinion of any court. But as far as authority
goes, The King _v._ Doherty, 13 East, 171, and Venafra _v._ Johnson,
10 Bing. 301, 3 M. & Sc. 807, are in favor of the plaintiff. In the
latter case, Johnson made precisely the same application to the
justices as was made here, and they exercised a precisely analogous
jurisdiction, the only difference being that there the magistrates
held the plaintiff to bail for his appearance at the sessions, whereas
here the magistrate at once committed the plaintiff to jail until he
should find the required sureties: and it was there decided by
implication that the proceeding before the magistrate was
incontrovertible; for, the court held that the judge was wrong in not
leaving it to the jury to say whether or not the defendant believed
the menaces when he put the law in motion against the plaintiff. If
Mr. Couch’s argument to-day is right, the counsel and the court in
that case were all wrong. Upon principle, therefore, and upon
authority, it seems to me that the argument for the plaintiff in this
case ought to prevail.
_Judgment for the plaintiff._[378]
FISHER _v._ BRISTOW
IN THE KING’S BENCH, JUNE 15, 1779.
_Reported in 1 Douglas, 215._
Action for a malicious presentment (for incest), in the ecclesiastical
court of the archdeaconery of Huntingdon. Demurrer to the declaration
and cause assigned, that it was not stated how the prosecution was
disposed of, or that it was not still depending. The court were clearly
of opinion, that the objection was fatal, and said it was settled, that
the plaintiff in such an action, must show the original suit, wherever
instituted, to be at an end; otherwise he might recover in the action,
and yet be afterwards convicted on the original prosecution.
_Judgment for the defendants._[379]
BROWN _v._ RANDALL
SUPREME COURT, CONNECTICUT, MARCH TERM, 1869.
_Reported in 36 Connecticut Reports, 56._
CARPENTER, J.[380] The defendants complained to a grandjuror of the town
of Norwich against the plaintiff, charging him with a breach of the
peace, and induced the grandjuror to enter a complaint to a magistrate
in due form, whereupon a warrant was issued, and the plaintiff arrested
and held to answer the complaint. After remaining in custody several
hours, the magistrate informed the defendants and their counsel, who
acted for the grandjuror, that he was ready to proceed with the trial.
The defendants sent word to the court that they should prosecute the
complaint no further, and thereupon the plaintiff was discharged. It is
alleged in the declaration that this proceeding was malicious and
without probable cause, and the jury have found that allegation to be
true.
The important question in this case is whether, upon the facts alleged
and proved, the plaintiff is entitled to recover. All the material
averments seem to have been proved except the allegation of acquittal.
That was not proved, and the court charged the jury that it was not
necessary. The defendants complain of this, as they rely upon the
non-existence of that fact as a complete defence to the action.
Decisions of courts of the highest respectability, both in England and
in this country, justify this claim. It does not appear that this
question has ever been directly determined by this court. We are
referred to the case of Monroe _v._ Maples, 1 Root, 553. But no such
question arose in that case. It simply decided that a person convicted
of the crime charged against him could not maintain the action. We are
therefore at liberty to determine the question upon principle.
The grounds of this action are, the malice of the defendant, the want of
probable cause, and an injury sustained by the plaintiff. 1 Swift’s
Digest, 491. The conviction of the plaintiff is justly considered as
conclusive evidence of probable cause. The authorities referred to
virtually decide—without sufficient reason as it seems to us—that the
termination of the prosecution by a _nolle prosequi_, or abandonment,
was equally conclusive upon that question.
One reason given for this is, that no termination of the prosecution in
favor of the accused short of an acquittal will discharge the crime or
be a bar to a new indictment. This reasoning is not satisfactory. The
possibility that the plaintiff may be again prosecuted for the same
alleged offence is not inconsistent with an entire want of probable
cause in the first prosecution. This reason seems to have been
disregarded in Sayles _v._ Briggs, 4 Met. 421. The complainant abandoned
the prosecution against the plaintiff after a trial, and the magistrate,
who could only bind over or discharge the person accused, discharged
him. The court held that the action could be maintained. Yet such a
discharge could be no bar to a subsequent prosecution.
Another reason given is, that the common law will not favor actions in
behalf of a party criminally prosecuted against one who has acted as
complainant in behalf of the public, and ostensibly for the public good;
it therefore requires that the plaintiff in such an action shall begin
by offering the verdict of a jury who have considered the cause on its
merits. This may be a very proper caution to a jury, and a matter which
ought to be considered by them in weighing evidence, but we see no
sufficient reason for adopting it as an absolute rule of law, the effect
of which is, in some cases at least, to shut out the truth. No such rule
has been adopted in this State, and we think it is contrary to the
prevailing notions of the profession. Judge Swift, in his Digest, vol.
1, p. 491, states five different modes of terminating a prosecution in
favor of the accused which will lay the foundation for this action, and
one of them is, “when the prosecution has been abandoned and given up.”
In Parker _v._ Farley, 10 Cush. 279, Shaw, C. J., in speaking of the
rule under consideration, says: “Were this a new and original question,
to be decided upon principle, it might be doubted whether it would be
just and wise to establish this as an inflexible rule of practice.”
On the whole we think it wise and safe, when a prosecution has been
abandoned, as this was, without any arrangement with the accused, and
without any request from him that it should be so abandoned, to leave
the question of probable cause to the jury.
The charge of the court was in harmony with these views, and we do not
advise a new trial.
In this opinion the other judges concurred.[381]
FOSHAY _v._ FERGUSON
SUPREME COURT, NEW YORK, MAY, 1846.
_Reported in 2 Denio, 617._
_By the Court_, BRONSON, C. J.[382] There was evidence enough in the
case to warrant the jury in finding, that the defendant set the
prosecution in motion from a bad motive. But all the books agree, that
proof of express malice is not enough, without showing also the want of
probable cause. Probable cause has been defined, a reasonable ground 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. Munns _v._ Nemours, 3
Wash. C. C. 37. However innocent the plaintiff may have been of the
crime laid to his charge, it is enough for the defendant to show, that
he had reasonable grounds for believing him guilty at the time the
charge was made. In Swain _v._ Stafford, 3 Iredell, N. C. 289, and 4 id.
392, the action was brought against the defendant, who was a merchant,
for charging the plaintiff with stealing a piece of ribbon from his
store. At the time the complaint was made, the defendant had received
such information as induced a belief of the plaintiff’s guilt; and
although it afterwards turned out that the property had not been taken
by any one, and was never out of the defendant’s possession, it was held
that an action for malicious prosecution could not be supported. The
doctrine that probable cause depends on the knowledge or information
which the prosecutor had at the time the charge was made, has been
carried to a great length. In Delegal _v._ Highley, 3 Bing. N. C. 950,
which was an action for maliciously, and without probable cause,
procuring a third person to charge the plaintiff with a criminal
offence, the defendant pleaded specially, showing that the plaintiff was
guilty of the offence which had been laid to his charge; and the plea
was held bad in substance, because it did not show that the defendant,
at the time the charge was made, had been informed, or knew the facts on
which the charge rested. The question of probable cause does not turn on
the actual guilt or innocence of the accused; but upon the belief of the
prosecutor concerning such guilt or innocence. Seibert _v._ Price, 5
Watts & Serg. 438.
Without going into a particular examination of the evidence in this
case, it is enough to say that the defendant, at the time he went before
the grand jury had strong grounds for believing that the plaintiff had
stolen the cattle: and, so far as appears, not a single fact had then
come to his knowledge which was calculated to induce a different
opinion. Although the plaintiff was in fact innocent, there would be no
color for this action, if it were not for the fact that the defendant
settled the matter with the plaintiff, instead of proceeding against him
for the supposed offence. If the parties intended the settlement should
extend so far as to cover up and prevent a criminal prosecution, the
defendant was guilty of compounding a felony. And the fact that he made
no complaint until the plaintiff commenced the two suits against him,
goes far to show that he was obnoxious to that charge; and that he was
governed more by his own interest, than by a proper regard to the cause
of public justice. But however culpable the defendant may have been for
neglecting his duty to the public, that cannot be made the foundation of
a private action by the plaintiff. Although the defendant may have
agreed not to prosecute, and the complaint may have been afterwards made
from a malicious feeling towards the plaintiff, still the fact of
probable cause remains; and so long as it exists, it is a complete
defence. There is enough in the defendant’s conduct to induce a rigid
scrutiny of the defence. But if upon such scrutiny it appear, that he
had reasonable grounds for believing the plaintiff guilty, and there is
nothing to show that he did not actually entertain that belief, there is
no principle upon which the action can be supported.
On a careful examination of the case, I am of opinion that the verdict
was clearly wrong. But as the charge of the judge is not given, we must
presume that the case was properly submitted to the jury; and a new
trial can therefore only be had on payment of costs.
_Ordered accordingly._[383]
CLOON _v._ GERRY
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE, 1859.
_Reported in 13 Gray, 201._
SHAW, C. J.[384] In an action for a malicious prosecution against one,
in the name of the Commonwealth, the averment on the part of the
plaintiff, that the complaint was made without reasonable cause, lies at
the foundation of the suit; and although it is in form a negative
proposition, it is incumbent on the plaintiff to establish it by
satisfactory proof. This kind of suit, by which the complainant in a
criminal prosecution is made liable to an action for damages, at the
suit of the person complained of, is not to be favored; it has a
tendency to deter men who know of breaches of the law, from prosecuting
offenders, thereby endangering the order and peace of the community.
Absence of probable cause is essential; from want of probable cause,
malice may be inferred; but from malice, even if express, want of
probable cause cannot be inferred.
An ultimate acquittal of the offence charged, though necessary to be
proved, is but a short step towards the maintenance of an action for
malicious prosecution. Malice, and absence of any reasonable and
probable cause, must also concur with an acquittal.
In the present case, the prosecution complained of was a complaint
before a justice of the peace by whom the plaintiff was convicted; from
this judgment he appealed, and on trial in the Court of Common Pleas was
acquitted.
On the trial, it appeared from the pleadings and evidence, and was
admitted, that the complaint was for an offence which the magistrate
had, by law, jurisdiction to hear, decide and render a judgment in;
also, that neither in the trial before the magistrate, nor in the trial
in the Common Pleas, was the defendant a witness. On this case, the
court ruled that such a conviction was proof of probable cause; or, to
state the proposition with more precision, it negatived the plaintiff’s
leading and essential averment that the complaint was made without
reasonable and probable cause, and that, for this reason, the action
could not be maintained, and thereupon ordered a nonsuit.
The court are of opinion that this direction was right. The question of
reasonable and probable cause, when the facts are not contested, is a
question of law. And when the plaintiff had been convicted by a
tribunal, constituted by law, with authority to render a judgment,
which, if not appealed from, would have been conclusive of his guilt,
and such judgment is not impeached on the ground of fraud, conspiracy or
subornation in its procurement, although afterwards reversed on another
trial, it constitutes sufficient proof that the prosecution was not
groundless, and to defeat an action for malicious prosecution. The case
of Whitney _v._ Peckham, 15 Mass. 243, is directly in point, and we
think it is well sustained by authorities.
It is said that the question of probable cause is a mixed question of
law and fact, and that the facts should have been left to the jury. Here
no fact material to the question was controverted, and then there was
nothing to leave to a jury.
_Exceptions overruled_.[385]
RAVENGA _v._ MACKINTOSH
IN THE KING’S BENCH, MAY 8, 1824.
_Reported in 2 Barnewall & Cresswell, 693._
This was an action for a malicious arrest: plea not guilty. At the trial
before Abbott, C. J., at the London sittings after last Hilary term, the
jury was directed to find a verdict for the defendant, if they were of
opinion that, at the time when the arrest was made, Mackintosh acted
truly and sincerely upon the faith of the opinion given by his
professional adviser, actually believing that Ravenga was personally
liable, and that he might be lawfully arrested, and that he (Mackintosh)
could recover in that action; but to find for the plaintiff, if they
were of opinion that Mackintosh believed that he must fail in the
action, and that he intended to use the opinion as a protection, in case
the proceedings were afterwards called in question; and that he made the
arrest, not with a view of obtaining his debt, but to compel the
plaintiff to sanction the debentures. The jury found a verdict for the
plaintiff, with £250 damages.[386]
The _Attorney-General_ now moved for a new trial.
BAYLEY, J. I have no doubt that in this case there was a want of
probable cause. I accede to the proposition, that if a party lays all
the facts of his case fairly before counsel, and acts _bona fide_ upon
the opinion given by that counsel (however erroneous that opinion may
be), he is not liable to an action of this description.[387] A party,
however, may take the opinions of six different persons, of which three
are one way and three another. It is therefore a question for the jury,
whether he acted _bona fide_ on the opinion, believing that he had a
cause of action. The jury in this case have found, and there was
abundant evidence to justify them in drawing the conclusion, that the
defendant did not act _bona fide_, and that he did not believe that he
had any cause of action whatever. Assuming that the defendant’s belief
that he had a cause of action would amount to a probable cause, still,
after the jury have found that he did not believe that he had any cause
of action whatever, the judge would have been bound to say, that he had
not reasonable or probable cause of action.
_Rule refused._[388]
MITCHELL _v._ JENKINS
IN THE KING’S BENCH, NOVEMBER 11, 1833.
_Reported in 5 Barnewall & Adolphus, 588._
This was an action on the case for a malicious arrest.
At the trial, before Taunton, J., at the last Summer Assizes for the
county of Devon, it appeared, that the plaintiff was indebted to the
defendant in the sum of £45, for one year’s composition of tithe; and
that the sum of £16 5_s._ was due to the plaintiff from the defendant;
that the defendant, under the advice of his attorney, arrested the
plaintiff for the whole sum of £45, instead of for the balance, after
deducting the sum of £16 5_s._ The defendant, on finding out that he was
mistaken in point of law, and that he should only have arrested for the
balance, discontinued the action.
There was no evidence at all of malice in fact; but the learned judge
told the jury, that, as the plaintiff ought not, by law, to have been
arrested for more than the balance, the law implied malice; and that the
only question for their consideration was, the amount of damages; upon
which a verdict was found for the plaintiff for £20.
A rule had been obtained, in a former term, calling on the plaintiff to
show cause why that verdict should not be set aside, and a new trial
had;[389] against which—
_Follett_ now showed cause.
_Coleridge_, Serjt., and _Bere_, contra.
DENMAN, C. J. Every arrest by a creditor for more than is due, is, in
some sense, a wrongful act. By statute, if it be made without reasonable
or probable cause, though with an entire absence of malice, the party
arresting may be deprived of his costs, and at common law, if the party
arrested has suffered damage to a greater extent than those costs, he
may, if the arrest was also made maliciously, bring his action on the
case. In that action, however, it is still incumbent on the plaintiff to
allege and to prove malice as an independent fact; though it may in some
instances be fairly inferred by the jury from the arrest itself, and the
circumstances under which it is made, without any other proof. They,
however, are to decide, as a matter of fact, whether there be malice or
not. I have always understood the question of reasonable or probable
cause on the facts found to be a question for the opinion of the court,
and malice to be altogether a question for the jury.[390] Here, the
question of malice having been wholly withdrawn from the consideration
of the jury, there ought to be a new trial.
PARKE, J. I am also of opinion that there ought to be a new trial, on
the ground that the learned judge withdrew altogether from the
consideration of the jury the question of malice. I have always
understood, since the case of Johnstone _v._ Sutton, 1 T. R. 510, which
was decided long before I was in the profession, that no point of law
was more clearly settled than that in every action for a malicious
prosecution or arrest, the plaintiff must prove what is averred in the
declaration, viz. that the prosecution or arrest was malicious and
without reasonable or probable cause: if there be reasonable or probable
cause, no malice, however distinctly proved, will make the defendant
liable; but when there is no reasonable or probable cause, it is for the
jury to infer malice from the facts proved. That is a question in all
cases for their consideration, and it having in this instance been
withdrawn from them, it is impossible to say whether they might or might
not have come to the conclusion that the arrest was malicious. It was
for them to decide it, and not for the judge. I can conceive a case
where there are mutual accounts between parties, and where an arrest for
the whole sum claimed by the plaintiff would not be malicious; for
example, the plaintiff might know that the set-off was open to dispute,
and that there was reasonable ground for disputing it. In that case,
though it might afterwards appear that the set-off did exist, the arrest
would not be malicious. The term “malice” in this form 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.[391] That would not be the case where,
there being an unsettled account, with items on both sides, one of the
parties, believing _bona fide_ that a certain sum was due to him,
arrested his debtor for that sum, though it afterwards appeared that a
less sum was due; nor where a party made such an arrest, acting _bona
fide_ under a wrong notion of the law and pursuant to legal advice. The
question of malice having in this case been wholly withdrawn from the
jury, I think the rule for a new trial must be made absolute.
_Rule absolute._[392]
HADDRICK _v._ HESLOP
IN THE QUEEN’S BENCH, TRINITY TERM, 1848.
_Reported in 12 Queen’s Bench Reports, 267._
Case for maliciously and without reasonable and probable cause indicting
the plaintiff for perjury. Averment that the plaintiff was tried and
acquitted, and judgment given that he should depart without day, as by
record appeared, &c.
Plea, by Heslop: Not guilty. Issue thereon.
On the trial, before Wightman, J., at the Durham Summer Assizes, 1847,
it was shown, on the part of the plaintiff, that the now defendant
Heslop received the account of Haddrick’s evidence from another party,
and then stated that he would indict Haddrick for perjury; and that his
informant thereupon expressed an opinion that there was no ground for
such indictment; on which Heslop said that, even if there were not
sufficient grounds for the indictment, it would tie up the mouths of
Hinde and Haddrick for a time, and that he would move for a new trial.
No witnesses were called for the defence. The learned judge asked the
jury whether Heslop believed that there was reasonable ground for
indicting, and whether he had indicted from malice. The jury answered
that Heslop did not so believe; and, as to the malice, they said that
they thought that the word “malice” was strong, but that they thought
the defendant had indicted from an improper motive. The learned judge
then decided that the indictment was without reasonable or probable
cause, and told the jury that they might infer malice from the improper
motive. Verdict for the plaintiff.
In Michaelmas term (November 5th), 1847,
_Bliss_ moved for a new trial, on the grounds of misdirection.[393]
First: the question of the defendant’s belief ought not to have been
left to the jury. It is for the judge to decide whether there was
reasonable and probable cause. It is true that he may, in order to
decide this, obtain the opinion of the jury upon facts which, when
found, he himself is to act upon in deciding as to the reasonableness
and probability. But belief is not such a fact: it is material as to the
malice, but there may well exist reasonable and probable cause
constituted by facts from which the defendant has wrongly drawn an
inference of want of cause. It is otherwise where the belief becomes
material as an ingredient in the question of _mala fides_: that was the
case in Ravenga _v._ Mackintosh, where the defendant rested his defence
upon the ground that he had acted _bona fide_ on a legal opinion, and
the jury found that he had not so acted. Nothing should be left to the
jury but “the truth of the facts proved, and the justice of the
inferences to be drawn from such facts;” and it is only as affecting
those questions that the belief of the party is material.
Next: the jury were misdirected as to malice. The mere fact that the
defendant had an indirect motive, however improper, in instituting the
prosecution does not show malice. The malice required in this action is
express malice in fact, not mere malice in law. In the judgment of Lords
Mansfield and Loughborough, in Johnstone _v._ Sutton,[394] it is
said:[395] “From the want of probable cause, malice may be, and most
commonly is, implied. The knowledge of the defendant is also implied.”
The jury ought therefore to have been told that the indirect motive was
quite consistent with absence of malice, unless the defendant knew (not
simply believed) that there was no probable cause, or unless there was
some evidence of express malice towards the plaintiff.
LORD DENMAN, C. J. 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. Reference has been made to
Turner _v._ Ambler, 10 Q. B. 252, where there was an allusion to a
decision of my Brother Maule, upheld afterwards in the Common
Pleas,[396] to the effect that reasonable and probable cause cannot
exist without belief. There may possibly be some difficulty in
distinguishing the case last mentioned from some others: but I think
that belief is essential to the existence of reasonable and probable
cause: I do not mean abstract belief, but a belief upon which a party
acts. Where there is no such belief, to hold that the party had
reasonable and probable cause would be destructive of common sense.[397]
Proof of the absence of belief is almost always involved in the proof of
malice. In Turner _v._ Ambler there was no point directly made at the
trial as to want of belief: the only question was whether the facts of
themselves bore out the probability and reasonableness. But, where a
plaintiff takes upon himself to prove that, assuming the facts to be as
the defendant contends, still the defendant did not believe them, we
ought not to entertain any doubt that it is proper to leave the question
of belief as a fact to the jury. It is not absolutely necessary that
this belief should be the motive on which he acted: he may act from
malice, and yet, if there was reasonable and probable cause in which he
believed, the case against him must fail.
_Rule refused as to misdirection._
VANDERBILT _v._ MATHIS
SUPREME COURT, CITY OF NEW YORK, FEBRUARY, 1856.
_Reported in 5 Duer, 304._
_By the Court_, BOSWORTH, J.[398]—To maintain an action for malicious
prosecution, three facts, if controverted, must be established:
1. That the prosecution is at an end, and was determined in favor of the
plaintiff.
2. The want of probable cause.
3. Malice.
In such an action, it is necessary to give some evidence of the want of
probable cause. It is insufficient to prove a mere acquittal; that,
alone, is not _prima facie_ evidence of the want of probable cause.
Gorton _v._ De Angelis, 6 Wend. 418.
It is equally essential, that the former prosecution should appear to
have been maliciously instituted. Malice may be inferred from the want
of probable cause, but such an inference is one which a jury is not
required to make, at all events, merely because they may find the
absence of probable cause.
Unless the evidence, in relation to the circumstances under which the
prosecution was ended, and that given to establish the want of probable
cause, justify the inference of malice, other evidence, in support of
it, must be given.
Evidence as to the conduct of the defendant, in the course of the
transaction, his declarations on the subject, and any forwardness and
activity in exposing the plaintiff by a publication, are properly
admitted to prove malice. Such evidence must be given as will justify a
jury in finding the existence of malice.
The rule is uniformly stated, that, to maintain an action, for a former
prosecution, it must be shown to have been without probable cause, and
malicious. Vanduzer _v._ Linderman, 10 J. R. 110; Murray _v._ Long, 1
Wend. 140; 2d Stark. Ev. 494; Willans _v._ Taylor, 6 Bing. 183.
The judge, at the trial, charged, that the fact, that the plaintiff was
discharged before the magistrate showed, _prima facie_, that there was
no probable cause for the arrest, and shifted the burden of proof from
the plaintiff to the defendant, who was bound to show, affirmatively,
that there was probable cause.
He was requested to charge, “that the discharge of Vanderbilt was not
_prima facie_ evidence of the want of probable cause.” This he refused
to do. To this refusal to charge, and to the charge as made, the
defendant excepted.
He also charged, “that, if probable cause is made out, the question of
malice becomes immaterial, except as bearing on the question of
damages.”
“This question of malice, in fact, supposing that probable cause did not
exist, is material only as affecting the question of damages.”
He was requested to charge, “that the jury could not find a verdict for
the plaintiff, unless he has proved that there was no probable cause for
the complaint, and not even then, unless they believed, from the
evidence, that, in making the complaint, the defendant acted from
malicious motives.” This the judge declined to do, and to his refusal to
so charge the defendant excepted.
Although the evidence which establishes the want of probable cause may
be, and generally is, such as to justify the inference of malice, yet we
understand the rule to be, that when it is a just and proper inference
from all the facts and circumstances of the case, upon all the evidence
given in the cause, “that the defendant was not actuated by any improper
motives, but only from an honest desire to being a supposed offender to
justice, the action will not lie, because such facts and circumstances
disprove that which is of the essence of the action, viz., the malice of
the defendant in pressing the charge.”
In Bulkley _v._ Smith, 2 Duer, 271, the court stated the rule to be,
“that, in order to maintain a suit for a malicious prosecution, the
plaintiff is bound to prove the entire want of a probable cause for the
accusation, and the actual malice of the defendant in making it. Malice
is a question of fact, which, when the case turns upon it, must be
decided by the jury.”
Story, J., in Wiggin _v._ Coffin, instructed the jury that two things
must concur, to entitle a plaintiff to recover in such an action: “The
first is, the want of probable cause for the prosecution; the second is,
malice in the defendant in carrying on the prosecution. If either ground
fail, there is an end of the suit.”
In Vanduzer _v._ Linderman, 10 J. R. 110, the court said: “No action
lies, merely for bringing a suit against a person without sufficient
ground. To maintain a suit for a former prosecution, it must appear to
have been without cause, and malicious.”
If the charge must be understood to mean, that if the want of probable
cause was established, the plaintiff was entitled to recover, although
the jury should believe, from the whole evidence, that, in making the
complaint, the defendant did not act from malicious motives, then we
deem it to be erroneous. This construction is the only one, of which the
language of the instruction appears to be susceptible; for the judge, in
charging the jury stated that the “question of malice in fact, supposing
that probable cause did not exist, is material only as affecting the
question of damages.”
Malice in fact, is that kind of malice which is to be proved. When
malice may be, and is inferred, from the want of probable cause, it is
actual malice which is thus proved.
There is no theoretical malice which can satisfy this rule, and which
can coexist with the established fact, that the prosecution was
instituted in an honest belief of the plaintiff’s guilt, and with no
other motives than to bring a supposed offender to justice.
The question of malice may be a turning-point of the controversy, in an
action of this nature.
The want of probable cause may be shown, and yet upon the whole
evidence, in any given case, it may be a fair question for the
determination of a jury, whether the defendant was actuated by malice.
If the whole evidence is such, that a jury cannot properly doubt the
honesty and purity of the motive which induced the former prosecution,
and if they fully believe that it was instituted from good motives, and
in the sincere conviction that the plaintiff was guilty of the offence
charged, and without malice, the defendant would be entitled to a
verdict.
The charge made, and which was excepted to, must be deemed to have been
made, to give the jury a rule of action, in disposing of the case upon
the whole evidence. We think it was not only calculated to mislead, but
was erroneous.
A new trial must be granted, with costs to abide the event.[399]
MACK _v._ SHARP
SUPREME COURT, MICHIGAN, DECEMBER 14, 1904.
_Reported in 138 Michigan Reports, 448._
MONTGOMERY, J.[400] The court also ruled throughout the case that in
this action the defendant was not at liberty to prove that the plaintiff
was in fact guilty of the criminal offence imputed to him in the
prosecution instituted by the defendant. It is well established by
authority that in an action for malicious prosecution it is a complete
defence to show that the plaintiff was in fact guilty of the offence
charged against him by defendant, and this though the proof of guilt is
furnished by evidence not known to defendant when the prosecution
against the plaintiff was instituted. This testimony is not in such case
offered in support of probable cause, but to show that the plaintiff has
suffered no wrong by his arrest. The law considers that, if a criminal
is fortunate enough to escape conviction, he should rest content with
his good luck, and not belabor one who suspected his guilt and acted
accordingly. As was said in Newton _v._ Weaver, 13 R. I. 617:—
“The action for malicious prosecution was designed for the benefit of
the innocent, and not of the guilty. It matters not whether there was
proper cause for the prosecution, or how malicious may have been the
motives of the prosecutor, if the accused is guilty he has no legal
cause for complaint.”
See, also, Threefoot _v._ Nuckols, 68 Miss. 123; Whitehurst _v._ Ward,
12 Ala. 264; Parkhurst _v._ Masteller, 57 Iowa, 478; Turner _v._
Dinnegar, 20 Hun, 465; Lancaster _v._ McKay, 103 Ky. 616.
_The judgment is reversed, and a new trial ordered._
The other Justices concurred.[401]
CHAPMAN _v._ PICKERSGILL
IN THE COMMON PLEAS, MICHAELMAS TERM, 1762.
_Reported in 2 Wilson, 145._
Action upon the case for falsely and maliciously suing out a commission
of bankrupt against the plaintiff, who declared upon three counts; in
the first, having stated his honesty, he alleges that the defendant did
falsely and maliciously exhibit a petition to the Lord Chancellor that
the plaintiff was indebted to him in £200, and had committed an act of
bankruptcy, that the commission thereupon issued, and the plaintiff was
declared a bankrupt, and that afterwards the commission was superseded;
and the plaintiff avers that he never committed any act of bankruptcy;
the second count is much the same, with the like averment; the third
count is much the same, but without such averment. To this the defendant
pleaded the general issue, and there was a general verdict and damages
for the plaintiff taken, upon all the three counts; whereupon it was
moved that the judgment might be arrested.
This case was argued twice at the bar, in two former terms by Serjeant
_Hewitt_ and Serjeant _Burland_ for the defendant, and by Serjeant
_Whitaker_ and Serjeant _Nares_ for the plaintiff; and in this term the
Lord Chief Justice gave the opinion of the whole court, that judgment
must be for the plaintiff.
LORD CHIEF JUSTICE. Upon the arguing of this case, the first objection
was, that this action will not lie, there being a remedy given by
statute, that a proceeding on a commission of bankruptcy, was a
proceeding in nature of a civil suit; and that no action of this sort
was ever brought: but we are all of opinion that this action is
maintainable.[402]
The general grounds of this action are, that the commission was falsely
and maliciously sued out, that the plaintiff has been greatly damaged
thereby, scandalized upon record, and put to great charges in obtaining
a _supersedeas_ to the commission; here is falsehood and malice in the
defendant, and great wrong and damage done to the plaintiff thereby.
Now, wherever there is an injury done to a man’s property by a false and
malicious prosecution, it is most reasonable he should have an action to
repair himself. See 5 Mod. 407, 8; 10 Mod. 218; 12 Mod. 210. I take
these to be two leading cases, and it is dangerous to alter the law. See
also 12 Mod. 273; 7 Rep. Bulwer’s case, 1. 2 Leon. —— 1 Ro. Abr. 101; 1
Ven. 86; 1 Sid. 464. But it is said this action was never brought; and
so it was said in Ashby and White; I wish never to hear this objection
again. This action is for a tort; torts are infinitely various, not
limited or confined, for there is nothing in nature but may be an
instrument of mischief, and this of suing out a commission of bankruptcy
falsely and maliciously, is of the most injurious consequence in a
trading country.
It is further said the stat. 5 Geo. 2, has given a remedy, and therefore
this action will not lie; but we are all of opinion, that in this case
the plaintiff would have been entitled to this remedy by action at
common law, if this Act had never been made, and that the statute being
in the affirmative, hath not taken away the remedy at law. 2 Raym. 163.
And this is a universal rule, that an affirmative statute is hardly ever
repealed by a subsequent affirmative statute, for if it is possible to
reconcile two statutes they shall both stand together; if they cannot be
reconciled, the last shall be a repeal of the first; but the most
decisive answer is, that this statute-remedy is a most inadequate and
uncertain remedy; for though there be the most outrageous malice and
perjury, and the party injured suffer to the amount of ten or twenty
thousand pounds, yet the Chancellor has no power to give him more than
the penalty of £200; besides, the method of applying to the Chancellor,
is more tedious, expensive, and inconvenient than this common law
remedy, and this case in its nature is more properly the province of a
jury, than of any judge whatever.
It is further objected, that in the third count there is no averment
that the plaintiff was not indebted to the defendant, or ever committed
an act of bankruptcy; but no case was cited to show such averment to be
necessary; the ground and substance of the declaration is falsehood and
malice; there are no instances of such averments in conspiracy, that the
party was innocent, or did not do the fact on which he was indicted, but
the precedents are the other way. In an action for words, as for saying
a man is a thief, the plaintiff has no occasion to aver he is not a
thief, and this case is analogous; for after the plaintiff has alleged
that the commission was false and malicious, it would be tautology, to
make such averment that he was not indebted, &c., and this declaration
would have been good on a demurrer; more clearly it is so, after a
verdict.
_Judgment for the plaintiff._
TOMLINSON _v._ WARNER
SUPREME COURT, OHIO, DECEMBER, 1839.
_Reported in 9 Ohio Reports, 104._
Malicious prosecution. From Licking. The plaintiffs declared that they
were residents of the town of Newark, and possessed of a large amount
of personal property, deposited in a warehouse to be forwarded to New
York, for a market; and that the defendant well knowing the premises,
and that the plaintiffs had not absconded, but contriving and
maliciously intending wrongfully to injure them, made oath before a
justice of the peace, that they had absconded to the injury of their
creditors, as he verily believed, and thereupon sued out of the Court
of Common Pleas, a writ of attachment, and caused the said property to
be seized by the sheriff, and held for a long time, whereby the same
was injured, the plaintiffs deprived of the opportunity of forwarding
their goods to a market, and greatly injured. Plea, not guilty.
Upon trial to the jury, the counsel for the plaintiffs admitted that
the plaintiffs were indebted to the defendant at the time of his
affidavit, as sworn to in it; whereupon the court directed a nonsuit,
with leave to move to open it, and for a new trial, which is now
made.[403]
By the Court, WOOD, J. The only question presented in this motion, is,
do the facts set forth in the declaration constitute a legal cause of
action, provided the plaintiffs were indebted to the defendant, when
he sued out the writ of attachment?
In Connecticut, there is a statute which provides, that where a
plaintiff shall “willingly and wittingly” wrong any defendant by
prosecuting any action against him with intent wrongfully to trouble
and vex him, such plaintiff shall pay treble damages for the first
offence, be liable to a fine for the second, and for the third, may be
proceeded against as a common barrator. Judge Swift thinks the act
founded in the clearest principles of justice. Swift Dig. 493. At
common law, it seems well settled, that no action will lie for a
malicious prosecution of a civil suit, without cause, where there is
no arrest. I Salk. R. 14. The costs allowed in all other cases are
supposed to be a sufficient compensation for the injury, however
malicious. The rule itself may perhaps be admitted, but the reason on
which it is said to be founded cannot be so readily admitted, for at
common law no costs were allowed. If the plaintiff failed, he was
amerced for his false clamor, and if he succeeded, the defendant was
at the mercy of the King. But at common law, whenever there was an
arrest, holding to bail, or imprisonment, where no debt was due, or
for a greater sum than was due, with a malicious intention to injure,
the action lay for a malicious arrest. 1 Saund. R. 228. The action for
a malicious prosecution, which technically only applies to cases of
malicious prosecution of criminal complaints, lies as well where there
is not, as where there is an arrest; and the grounds of the action are
the malice of the defendant, want of probable cause, and injury to the
plaintiff’s person by imprisonment, his reputation by scandal, or to
his property by expense. 1 Swift Dig. 491. Having no direct
adjudication on the question before us, we may look to the analogies
of the law. The counsel for the defendant insist that because the
plaintiffs’ indebtedness to the defendant in the former suit is
admitted, there was probable cause for suing out the writ of
attachment. This does not seem to us to follow. To constitute probable
cause for suing out a writ of attachment, the law requires an
affidavit of indebtedness, and also that the debtor has absconded, or
is non-resident. The absence of either is absence of probable cause
for the writ, and the false affirmation of either fact, knowingly, as
a means of procuring the writ, shows express malice, whilst the taking
of property without cause is a sufficient injury to sustain the
action.
In the Supreme Court of New York, it has been decided, that case would
lie against both plaintiff and defendant, for fraudulently setting up
the judgment as unsatisfied, when in fact paid, and causing an
execution and sale of land once held by it as a lien, but which had
been afterwards conveyed by the defendant to a third person. The court
in that case say, “If it appear that the unlawful acts of the
defendant occasioned trouble, inconvenience, or expense to the
plaintiff, this action lies.” The general rule is, that for every
injury the law gives redress; and it would be a reproach to the
administration of justice, if one, by perjury, could take from another
the control of his property, under form of law, and the law afford no
remedy. Nice technicalities are sometimes applied to get rid of a hard
case; but when, under form of law, opportunity is sought to gratify
malice, to the injury of another, courts will not be astute to avoid,
but rather seek ground to sustain an action. We have no facts in this
case, before us, but the statement in the declaration, and the
admission of indebtedness; but these show a sufficient prima facie
cause of action, and cause for opening up the nonsuit.
_New trial granted._[404]
WETMORE _v._ MELLINGER
SUPREME COURT, IOWA, APRIL 9, 1884.
_Reported in 64 Iowa Reports, 741._
BECK, J.[405] The petition alleges that defendants brought an action
against plaintiff and his wife, charging in the petition that they two
conspired and confederated together to defraud defendants, by
representing to defendants, under the assumed name of Baker, that they
were the owners of certain lands in Poweshiek County, which defendants
were induced to purchase of plaintiff and his wife, who, in such assumed
name, executed to defendants a warranty deed therefor; that, in an
action by one Woodward, a deed, purporting to be executed by him to the
Bakers, under which they claimed title to the lands, was declared to be
void, for the reason that it was forged and fraudulent, and that
plaintiff herein and his wife well knew the condition of their title,
and representing that they were the owners thereof, for the purpose of
cheating defendants, and of obtaining money by false and fraudulent
pretences, and did, in that manner, obtain the sum of $3,000 from
defendants. It is further alleged that defendants herein served out a
writ of attachment in the suit brought by them, which was levied upon
real estate owned by plaintiff’s wife, and that defendants for a time
prosecuted their action, but finally dismissed it at their own costs.
Plaintiff, in his petition in this case, alleges that he was not
indebted to defendants in any sum at the time their action was brought
against him; that he was not guilty of the frauds therein charged, and
that the action was commenced and prosecuted by defendants maliciously
and without probable cause. The defendants, in their answer, admit the
commencement of the suit, the issuing of the attachment, and that it was
levied upon real estate owned by plaintiff’s wife. There was no evidence
showing, or tending to show, that the writ of attachment was levied upon
any property owned by plaintiff. The wife of plaintiff does not join in
this action.
We think the doctrine is well established by the great preponderance of
authority that no action will lie for the institution and prosecution of
a civil action with malice and without probable cause, where there has
been no arrest of the person or seizure of the property of defendant,
and no special injury sustained, which would not necessarily result in
all suits prosecuted to recover for like causes of action.
See 1 Am. Leading Cases, p. 218, note to Munn _v._ Dupont _et al._, and
cases there cited; Mayer _v._ Walter, 64 Pa. St. 289; Kramer _v._ Stock,
10 Watts, 115; Bitz _v._ Meyer, 11 Vroom, 252, S. C. 29 Am. Rep. 233;
Eberly _v._ Rupp, 90 Pa. St. 259; Gorton _v._ Brown, 27 Ill. 489;
Woodmansie _v._ Logan, 2 N. J. L. 93 (1 Pen.); Parker’s Adm’rs _v._
Frambes, Id. 156; Potts _v._ Imlay, 4 N. J. L. 330 (1 South.)
This doctrine is supported by the following considerations: The courts
are open and free to all who have grievances and seek remedies therefor,
and there should be no restraint upon a suitor, through fear of
liability resulting from failure in his action, which would keep him
from the courts. He ought not, in ordinary cases, to be subject to a
suit for bringing an action, and be required to defend against the
charge of malice and the want of probable cause. If an action may be
maintained against a plaintiff for the malicious prosecution of a suit
without probable cause, why should not a right of action accrue against
a defendant who defends without probable cause and with malice? The
doctrine surely tends to discourage vexatious litigation, rather than to
promote it.
It will be observed that the statement of the doctrine we have made
extends it no farther than to cases prosecuted in the usual manner,
where defendants suffer no special damages or grievance other than is
endured by all defendants in suits brought upon like causes of action.
If the bringing of the action operates to disturb the peace, to impose
care and expense, or even to cast discredit and suspicion upon the
defendant, the same results follow all actions of like character,
whether they be meritorious, or prosecuted maliciously and without
probable cause. They are incidents of litigation. But if an action is so
prosecuted as to entail unusual hardship upon the defendant, and subject
him to special loss of property or of reputation, he ought to be
compensated. So, if his property be seized, or if he be subjected to
arrest by an action maliciously prosecuted, the law secures to him a
remedy. In the case at bar, the pleadings and evidence show no such
special damages. No action could be prosecuted to recover money
fraudulently obtained, in which the defendant would not suffer the very
things for which plaintiff in this case seeks compensation in damages.
Counsel for plaintiff, in support of their position that the action may
be maintained, though no arrest of defendant or seizure of property be
had in the proceeding alleged to have been maliciously prosecuted, cite
Green _v._ Cochran, 43 Iowa, 544, and Moffatt _et al._ _v._ Fisher, 47
Id. 473. In the first case, the action alleged to be malicious was a
proceeding for bastardy, which, under the statute, operated as a lien
upon defendant’s lands from the commencement. In the other case, the
action which was the foundation of plaintiff’s claim was forcible entry
and detainer, and, before final disposition thereof, the defendant was
ousted of possession of the land, whereon was a coal mine. In both
instances the property of the respective defendants was reached by the
proceedings. The facts of these cases are not within the rule we have
stated, and do not support counsel’s position.
_Affirmed._[406]
FLIGHT _v._ LEMAN
IN THE QUEEN’S BENCH, JUNE 9, 1843.
_Reported in 4 Queen’s Bench Reports, 883._
Case. The second count of the declaration alleged that the defendant
heretofore, to wit 1st January, 1838, and on divers &c. between that
day and 22d November, 1838, contriving and maliciously intending to
injure, harass and damnify plaintiff, and to put him to great
vexation, unlawfully and maliciously did advise, procure, instigate
and stir up John Thomas to commence and prosecute an action of
trespass on the case in the court &c. (Queen’s Bench) against the now
plaintiff; that by and through such advice, procurement, instigation
and stirring-up, John Thomas did in fact afterwards, to wit 4th
January, 1838, commence and prosecute the last-mentioned action. The
present declaration then set out three counts of a declaration in case
at the suit of John Thomas against the defendant, averment of a trial
at nisi prius at Dorchester, on 18th July, 1838, and that the
defendant was then and there acquitted of the premises mentioned to be
charged against him by John Thomas. And thereupon afterwards, to wit
22d November, 1838, it was considered, in and by the said court &c.,
amongst other things, that the said John Thomas be in mercy for his
false claim against the now plaintiff defendant in the said
last-mentioned action as aforesaid. Whereby the now plaintiff was not
only put to great trouble and vexation, but was also obliged to pay,
and did in fact pay, a large &c., to wit £800, in and about the
defence of the said action.
The defendant pleaded, in effect, that the advice given by him was
given in the character of an attorney.
Replication _de injuria_.
Special demurrer. Joinder.[407]
LORD DENMAN, C. J. The case of Pechell _v._ Watson, 8 M. & W. 691,
proceeded on the principle that to maintain an action already
commenced was unlawful. That is not here charged; and therefore the
count ought to show the ingredients which make the instigation to a
suit actionable. The plaintiff has not done this; for, beyond all
doubt, the absence of reasonable or probable cause is one such
ingredient, in the absence of which it does not appear that the
plaintiff has been unlawfully disturbed.
PATTESON, J. I think this declaration is bad, for the reason already
given. The case is analogous to that of a complaint of malicious
prosecution or arrest; and here, as there, the want of reasonable or
probable cause ought to be alleged.
WILLIAMS, J. The averments in this declaration might be sustained by
proof that the defendant, not being an attorney, had held a
conversation with Thomas, and had said, “If your story is correct, you
might sue Flight.” No action could be maintained on that, unless it
further appeared that the now defendant knew that there was no right
to sue the now plaintiff.
COLERIDGE, J. It is not asserted here that the suit maintained was
without reasonable or probable cause: there are only general words,
imputing an instigation and a stirring-up. There should be added to
these, in strict analogy with actions for malicious prosecution or
arrest, as my Brother Patteson has pointed out, an averment of want of
reasonable or probable cause: and without such averment this
declaration shows no right of action.
_Judgment for defendant._[408]
GRAINGER _v._ HILL
IN THE COMMON PLEAS, JANUARY 20, 1838.
_Reported in 4 Bingham, New Cases, 212._
TINDAL, C. J.[409] This is a special action on the case, in which the
plaintiff declares that he was the master and owner of a vessel which,
in September, 1836, he mortgaged to the defendant for the sum of £80,
with a covenant for repayment in September, 1837, and under a
stipulation that, in the mean time, the plaintiff should retain the
command of the vessel, and prosecute voyages therein for his own profit;
that the defendants, in order to compel the plaintiff through duress to
give up the register of the vessel, without which he could not go to sea
before the money lent on mortgage became due, threatened to arrest him
for the same unless he immediately paid the amount; that, upon the
plaintiff refusing to pay it, the defendants, knowing he could not
provide bail, arrested him under a _capias_, indorsed to levy £95, 17s.
6d., and kept him imprisoned, until, by duress, he was compelled to give
up the register, which the defendants then unlawfully detained; by means
whereof the plaintiff lost four voyages from London to Caen. There is
also a count in trover for the register. The defendants pleaded the
general issue; and, after a verdict for the plaintiff, the case comes
before us on a double ground, under an application for a nonsuit, and in
arrest of judgment.
The second ground urged for a nonsuit is, that there was no proof of the
suit commenced by the defendants having been terminated. But the answer
to this, and to the objection urged in arrest of judgment, namely, the
omission to allege want of reasonable and probable cause for the
defendants’ proceeding, is the same,—that this is an action for abusing
the process of the law, by applying it to extort property from the
plaintiff, and not an action for a malicious arrest or malicious
prosecution, in order to support which action the termination of the
previous proceeding must be proved, and the absence of reasonable and
probable cause be alleged as well as proved. In the case of a malicious
arrest, the sheriff at least is instructed to pursue the exigency of the
writ; here the directions given, to compel the plaintiff to yield up the
register, were no part of the duty enjoined by the writ. If the course
pursued by the defendants is such that there is no precedent of a
similar transaction, the plaintiff’s remedy is by an action on the case,
applicable to such new and special circumstances; and his complaint
being that the process of the law has been abused, to effect an object
not within the scope of the process, it is immaterial whether the suit
which that process commenced has been determined or not, or whether or
not it was founded on reasonable and probable cause.[410]
BOND _v._ CHAPIN
SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER, 1844.
_Reported in 8 Metcalf, 31._
HUBBARD, J.[411] In the present suit, which is an action on the case
against the defendant for prosecuting a suit in the name of Thomas
Bond against the plaintiff, the plaintiff avers, in his declaration,
(which accompanies the exceptions) that the defendant, without
authority from said Thomas, and having no reasonable ground for
believing that anything was due from the plaintiff to him, attached
the plaintiff’s property, and prosecuted said suit against him, from
November term, 1840, to November term, 1841, when he became nonsuit;
and evidence was offered tending to prove these allegations. The
instructions to the jury were, that “the plaintiff must prove the
former action to have been commenced and prosecuted maliciously, that
is to say, with some improper motive, or without due care to ascertain
his rights, as well as without authority, and without probable cause.”
The error complained of may have arisen from not distinguishing,
during the trial, between an action on the case for malicious
prosecution, and an action on the case for prosecuting a suit in the
name of a third person, without authority, by reason of which the
defendant sustains injury.
In a suit for malicious prosecution, the gist of the action is malice;
but there must also exist the want of probable cause. And without the
proof of both facts, the action cannot be maintained, though the
existence of malice may often be inferred from the want of probable
cause. But in an action on the case for damages for prosecuting a suit
against the plaintiff without authority, in the name of a third
person, the gist of the action is not a want of probable cause,—for
there may be a good cause of action,—but for the improper liberty of
using the name of another person in prosecuting a suit, by which the
defendant in the action is injured. Nor is the proof of malice
essential to the maintenance of such action. If the party supposes he
has authority to commence a suit, when in fact he has none, and the
nominal plaintiff does not adopt it, the action fails for want of such
authority. In such case, though the party supposed he had authority,
and acted upon that supposition, without malice, still if the
defendant suffers injury by reason of the prosecution of the
unauthorized suit against him, he may maintain an action for the
actual damages sustained by him, in the loss of time, and for money
paid to procure the discontinuance of the suit, but nothing more.
Where, however, in addition to a want of authority, the suit commenced
was altogether groundless, and was prosecuted with malicious
motives—which may be inferred from there existing no right of action,
as well as proved in other ways—then, in addition to the actual loss
of time and money, the party may recover damages for the injury
inflicted on his feelings and reputation.
In this case, the learned judge having instructed the jury that a want
of probable cause and malice must concur with the want of authority to
commence the suit in the name of a third person, to enable the
plaintiff to maintain the action, we think there was error in the
instruction, and that though the damages might be enhanced by showing
malice and a want of probable cause, yet that the proof of them is not
essential to the maintenance of the action.
_New trial granted._[412]