N. P. C. 389 (1818), in which the facts were that the defendant who was an inspector of a bank, brought back from the bank a note stamped "forged" to the plaintiff, who was one of the payees of it. A dispute arose as to who was entitled to keep it, and upon the plaintiff refusing to give it up, the defendant prosecuted him for being feloniously in possession of it. The judge held that there was no probable cause for the prosecution, and directed the jury that "to press a commitment under circumstances like the present was such a crassa ignorantia that it amounted to malice."

In Caddy v. Barlow, 1 Man. & R. 275 (1827), the plaintiff and her brother, both being infants, had been jointly prosecuted by the defendant. At the trial of the action, to which the plaintiff's brother was not a party, Vaughan, B., admitted evidence that the defendant ill-treated the brother in the plaintiff's absence, when

both the plaintiff and her brother were in custody, [* 37 ] *in order to induce him to prefer a criminal charge against their father. The Court of Queen's Bench (Lord Tenterden, L. C. J., and Bayley, Holroyd, and Littledale, JJ.) held that this evidence was rightly admitted, on the grounds that it was part of the res gesto and showed malus animus, and "unlawful motives" in the defendant.

Mitchell v. Jenkins, 5 B. & Ad. 588 (1833), was an action for malicious arrest. The defendant had arrested the plaintiff for a debt of 451., though the defendant was entitled to a set-off of 167., so that in reality only 291. was due. The officer told the plaintiff when he arrested him that he was prepared to accept the smaller sum in satisfaction. Taunton, J., directed the jury that these circumstances showed malice in law, and that they must find for the plaintiff. This was held to be a misdirection. Lord Denman, L. C. J., was of opinion that malice is altogether a question for the jury. Parke, J., said, in the course of his judgment, "The term malice in this sort 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." I confess that I do not understand what this means. If malus animus does not mean spite or hatred, it must, one would think, be a term of art, with some meaning capable of being expressed in English. As to an improper motive, the only improper motive can be a wish to injure the party rather

than to vindicate the

red it is very like it.

EVIDENCE OF MALICE.

law, and if that is not spite or hat

* 39

As to an indirect motive, *unless [* 38 ] it means an improper motive, it is impossible to suggest

what it does mean.

Musgrove v. Newell, 1 M. & W. 582 (1836), is a case turning chiefly on reasonable cause, and is discussed from that point of view hereafter (a). In so far as it deals with evidence of malice, the material facts were that, upon the defendant giving the plaintiff in charge, the constable, who knew the plaintiff, offered explanations, to which the defendant refused to listen. Lord Denman said that "malice," "in actions of this nature, was not confined to the ordinary meaning of the word malice, but comprehended any improper motive." He directed the jury that if they thought the defendant persisted in his charge from "obstinacy or feelings of wounded pride," and that the defendant either did not believe, or ought not to have believed, in his charge when he preferred it before the magistrate, his conduct was malicious, and they should find for the plaintiff. After a verdict for the plaintiff, the Court of Exchequer made a rule absolute for a new trial, chiefly on the ground of misdirection as to reasonable cause, but also because, in their opinion, there was no evidence of malice. If the case were to occur again, it may be doubted whether it would be decided in the same way. Considering that a jury may iufer malice from want of reasonable cause,' it is hard to see how a judge can now stop a case on the sole ground that there is no evidence of malice, and the case of Mitchell v. Jenkins, quoted above, confirms this view.

*In Haddrick v. Heslop, 12 Q. B. 267 (1848), the [*39]

(a) Vide post, p. 44.

Malice need not be affirmatively proved but may be inferred from want of probable cause or the zeal and activity of the prosecutor: Cecil v. Clarke, 17 Md. 508; Straus v. Young, 36 Id. 246 (1872), Grason, J.; Cooper v. Utterbach, 37 Md. 282; Flickinger v. Wagner, 46 Id. 581; Dietz v. Langfit, 63 Pa. 234; Schofield v. Ferrars, 47 Id. 194; Paukett v. Livermore, 5 Clarke, 277; White . Tucker, 16 Ohio, 468; Ammerman v. Crosby, 64 Ind. 451; Blass v. Gregor, 15 La. Ann. 421; McKown v. Hunter, 30 N. Y. 625; Pangburn v. Bell. 1 Wend. 345; Williams v. Taylor, 6 Bing. 183; Closson v. Staples, 42 Vt. 209; Mowry v. Whipple, 8 R. I. 360; Harpham r. Whitney, 77 Ill. 32; Merriman v. Mitchell, 13 Me. 438; Garrison r. Pearce, 4 E. D. Smith, 255; Harkrader v. Moore, 44 Cal. 144; Holliday v. Stearling, 62 Mo. 321; Ewing r. Sanford, 19 Ala. 605; Bozeman v. Shaw, 37 Ark. 161 (1881). Eakin, J.; Blunt. Little, 3 Mason, 102 (1822), Strong, J.; Wiggin v. Coffin, 3 Story, 1; Johnson v. Efforts, 6 Saw. 538. But this presumption is only prima facie and may be rebutted: Boyd v. Cross, 35 Md. 194 (1871), Alvey, J.; Bell v. Graham, 1 Nott & McCord, 278; Ray v. Law, Peter C. C. 207.

main evidence of malice was that the defendant, having been defendant in another suit in which the plaintiff had given evidence against him, upon receiving from someone else an account of the evidence the plaintiff had given, declared that he would indict him for perjury. His informant said that there was no ground for such an indictment, and the defendant answered that even if there were not it would tie up the mouths of the plaintiff, and of the plaintiff in the former action, for a time, and that he (the defendant) would move for a new trial. He did indict the plaintiff, and thence the action. Wightman, J., asked the jury whether they thought he indicted him from malice. The jury answered "that the word malice was strong," but that he indicted him "from an improper motive." The Court of Queen's Bench (Lord Denman, C. J., Coleridge, Wightman, and Erle, JJ.) refused a rule for a new trial applied for on the ground of misdirection.

In Stevens v. Midland Counties Rail. Co. and Lander, 10 Exch. 352 (1854), the defendant Lander was the superintendent at Derby of the defendant company. The plaintiff had a small piece of the company's tarpauling in his possession, and Lander prosecuted the man from whom the plaintiff had got it for larceny. The grand jury threw out the bill. Lander then insisted on having a warrant against the plaintiff for receiving, “to punish someone in order to deter others, &c." A rule to enter the verdict for the defendants was discharged as to Lander. It [*40] was made absolute as to the company upon other grounds. It was in this case that Baron Alderson expressed the well-known opinion, still held by Lord Bramwell, that no action for malicious prosecution lies against a corporation aggregate, because it has no mind, and therefore cannot be malicious (b).1

The jury may, of course, infer malice from the behaviour of the defendant subsequently to the beginning of the prosecution. Heath v. Heape, 1 H. & N. 478; 26 L. J. M. C. 49 (1856).

(b) Vide post, p. 87. I See note page 86.

EVIDENCE OF WANT OF REASONABLE CAUSE.

* 41.

* CHAPTER VI.

[* 41 ]

EVIDENCE OF WANT OF REASONABLE CAUSE.

THE question of what amounts to proof of a want of reasonable cause for a prosecution is the central difficulty of actions for malicious prosecution. In the present chapter I propose merely to enumerate the decisions which have been pronounced as to what did and what did not establish that the defendant prosecuted without a reasonable cause. In the following chapter I

1

2

1 Reasonable cause, as it is termed in the English law, is not a belief honestly entertained, for that of itself is not sufficient; but it is necessary, as Lord Campbell, C. J., says in Broughton v. Jackson, 18 Q. B. 378, 21 L. J. Q. B. 266 (1852), "that the defendant should show facts which would create a reasonable suspicion in the mind of a reasonable man. Also Perryman v. Lister, L. R. 3 Ex. 202, approved by Lord Hatherly, L. R. 4 H. L. 533 (1870). Probable cause, as it is termed in the American Law, may be understood to be such conduct on the part of the accused as may induce the Court to infer that the prosecution was undertaken from public motives: Ulmer v. Leland, 1 Greenleaf, 135; Thompson v. Mussey, 3 Id. 306. The defendant in a criminal prosecution was found guilty, but upon a new trial a nolle prosequi being entered, the defendant was discharged; it was held that the action could be maintained and the first verdict was no evidence of probable cause: Richter r. Coster, 45 Ind. 440 (1874). The verdict of guilty is strong prima facie evidence of probable cause but capable of being rebutted: Payson v. Caswell, 22 Me. 212; Herman v. Brooherhoof, 8 Watts, 240; Jones v. Kirksey, 10 Ala. 839; and a judgment is sufficient evidence of probable cause to defeat the action although reversed on appeal: Palmer v. Avery, 41 Barb. 290 (1864), Bacon, J.; Reynolds v. Kennedy, 1 Wilson, 232; Whitney v. Peckham, 15 Mass. 243; Welsh v. R. R. Co., 14 R. I. 609 (1884), Carpenter, J.; Clements v. Apparatus Co., 67 Md. 461 (1887), Robinson, J.; contra Ash v. Morton, 20 Ohio, 119; Ewing v. Sanford, 19 Ala. 605. Yet it is not conclusive evidence, for it may be impeached for fraud, conspiracy, perjury or subordination: Cloon v. Gerry, 13 Gray, 201; Whitney r. Peckham, 15 Mass. 143.

2A discharge by a magistrate: Orr v. Seiler, 1 Pennypacker (Pa.), 445; or the rejection of the bill by the grand jury: Garrard v. Willett, 4 J. J. Marshall, 628 (1830); Potter v. Casterline, 12 Vrooom, 22 (1879), Woodhull, J.; Johnson v. Miller, 63 Iowa, 529 (1884), Seevers, J.; or the voluntary discontinuance of a former suit is prima facie evidence of want of probable cause: Burhaus v. Sanford, 19 Wend. 417; Wetmore v. Mellinger, 64 Iowa, 741 (1884); contra Palmer v. Avery, 41 Barb. 290 (1864). But a mere acquittal on trial: Williams v. VanMeter, 8 Mo. 339; Stone v. Crocker, 24 Pick. 81; Bitting v. Ten Eyck, 82 Ind. 421, 28 Myers' Fed. Dec. Sec. 662, or an entry of nol. pros.: Yocum v. Polly, 1 B. Mon. 358, contra Richter v. Koster, 45 Ind. 440 (1874); or the offer to compromise is not evidence of want of probable cause: Gilliford v. Windel, 108 Pa. St. 142 (1884), Gordon, J.; Emerson v. Cochran, 111 Id. 619 (1886).

shall trace the decline of the original doctrine, that the question whether the defendant has been shown to have acted without reasonable cause is one for the judge, and the growth of what I hold to be the modern practice that, notwithstanding the embarrassing survival of a rule which has become fictitious, this question is one which juries are called upon to decide, and do decide. Some account of the case of Johnstone v. Sutton has been given in a previous chapter. The principal ground of the decision in the defendant's favour was that it appeared from the declaration that the plaintiff was prosecuted for not having obeyed a particular order of his commanding officer, and that he had not in fact obeyed it. Lords Mansfield and Loughborough held that this amounted to reasonable cause for the prosecution, [*42]* and that the fact that the plaintiff had had a good defence to the prosecution was immaterial.

Where the prosecution sued for was one for assault, the question of want of reasonable cause will probably turn upon whether the defendant was really the injured party in the assault, or whether he began it. In Hinton v. Heather, 14 M. & W. 131 (1845), it appeared that the defendant had to some extent provoked and assaulted the plaintiff on his own premises, whereupon the plaintiff threw the defendant downstairs and out of the house, for which the defendant indicted him for assault. Pollock, C. B., directed the jury that if when the defendant began the prosecution he knew that the plaintiff had not exceeded his lawful rights of repelling violence, and turning out an intruder, there was a want of reasonable cause; but that if he knew that the plaintiff had been more violent in putting him out than under the circumstances he had a right to be, there was no want of reasonable cause. Alderson and Rolfe, BB., held this direction to have been right. At the same time they threw some doubt upon an older case of Fish v. Scott, Peake, 135 (1792). In that case counsel opened the following facts:-Scott hit Fish, and Fish returned the blow. They then went to a field and fought, after which Scott indicted Fish for assault. Upon this opening, Kenyon, C. J., nonsuited, on the ground that the fact of the defendant, who preferred the indictment, having also been the original aggressor, could not amount to a want of reasonable cause.

Scheibel v. Fairbairn, 1 B. & P. 388 (1799), is one of [ 43 ] * the earlier cases showing that whether or not the de

*