WHO ARE LIABLE TO BE SUED.

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kinder appears to me to conflict in some degree with the old case of Chambers v. Taylor, Cro. Eliz. 900 (1602), but would no doubt be held to be of superior authority. At the same time, Fitzjohn v. Mackinder can hardly be considered as a thoroughly satisfactory and conclusive precedent, for various reasons given already in Chapter II.

FAVOURABLE TERMINATION OF PROSECUTION-EVIDENCE. In order to recover damages for malicious prosecution the plaintiff must prove that the prosecution has come to an end, and has been decided in his favour, unless the proceeding against the plaintiff was ex parte and he could not be heard. There are several decisions as to what constitutes a termination of a prosecution in favour of the accused.

We have seen already that the writ of conspiracy contained an allegation necessary to be proved, that the plaintiff had been indicted and acquitted; and the inapplicability of this procedure to cases where the grand jury had thrown out the bill was one of the distinctions between the action in conspiracy and the action on the case.

It was always the law that in an action on the case or for malicious prosecution the acquittal or other favourable termination must be pleaded, and that a declaration not containing the allegation was demurrable.' Arundel v. Tregono, Yelv. 116

1 In all actions for malicious prosecution whether by indictment, arrest, attachment, or suing out a commission of bankruptcy, it must be alleged in the declaration that the proceedings are legally at an end: Davis v. Clough, 8 N. H. 157; Heyward v. Cuthbert, 4 McCord, 354; Harden v. Borders, 1 Ired. Law, 143; McWilliams v. Hoban, 42 Md. 57 (1874), Bowie, J.; Potter v. Casterline, 12 Vroom. 202 (1879), Woodhull, J.; Severance t. Judkin, 73 Me. 376 (1882). Appleton, J.; Wood worth v. Mills, 61 Wis. 44 (1884), Taylor, J.; Barrell v. Simonton, 2 Cr. C. C. 657; McCormick v. Sisson, 7 Cowen, 715; Gorton v. DeAngelis, 6 Wend. 421; Clark v. Cleveland, 6 Hill, 344; O'Brien v. Barry, 106 Mass. 300; and it must be alleged how it was ended: Coles v. Hauks, 3 Monroe, 208; Teague v. Williams, 3 McCord, 461; though the omission to allege either that fact or the mode would be cured by verdict: Weinberger v. Shelby, 6 W. & S. 336. A discharge on a habeas corpus is a termination: Charles v. Abell, Bright. (Pa.) 131; Zebley v. Storey, 2 Crum. (Pa.) 478 (1888), Paxson, J., contra Schoffel v. Kleinz, Bright. (Pa.) 132, n. The entry of a nol. pros. for any other reason than irregularity or informality is a good termination: Woodworth v. Mills, 61 Wis. 44 (1884), Taylor, J.; Brown v. Randall, 36 Conn. 56: contra Garing v. Fraser, 76 Me. 37 (1884), Virgin, J.; but in a criminal proceeding such entry is not sufficient without a discharge of the prisoner: Graves v. Dawson, 130 Mass. 78; Hatch v. Cohen, 84 N. C. 602. The termination may be by previous settlement: Gallagher v. Stoddard, 47 Hun. (N. Y.) 102 (1888), Martin, J.; or in a criminal proceeding by a dismissal by the district attorney without trial: Kelley v. Sage, 12 Kans. 109; Bell v. Matthews, 37 Id. 686 (1887); but an arrest of judgment after conviction is not a proper termination: Kirkpatrick v. Id., 39 Pa. 288.

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(1608); Fisher v. Bristow, 1 Dougl. 215 (1779); Morgan v. Hughes, 2 T. R. 225 (1788). In Fisher v. Bristow the reason of this was pointed out to be that, if it were not so, a plain.

tiff might recover * damages for a malicious indictment, [100] and afterwards be convicted upon it.

In Whitworth v. Hall, 2 B. & Ad. 695 (1831), it was held that a declaration in case for maliciously and without probable cause suing out a commission of bankruptcy against the plaintiff was demurrable, because it did not allege that the commission bad been superseded. Castrique v. Behrens, 3 E. & E. 720 (1861) was a somewhat similar action for maliciously and without reasonable and probable cause causing a foreign Court to condemn the plaintiff's ship in rem. The declaration did not aver that the plaintiff could not, or did not, intervene, or that the judgment had been reversed. Crompton, J., delivered judgment, holding the declaration bad on demurrer, on the ground that, "if in the proceeding complained of the decision was against the plaintiff and was still unreversed, it would not be consistent with the principle on which law is administered for another Court, not be ing a Court of Appeal, to hold that the decision was come to without reasonable and probable cause. There is no direct authority on the point, but it seems to us that the same principle . . . applies where the judgment, though in a foreign country, is one of a Court of competent jurisdiction, and come to under such circumstances as to be binding in this country."

When the prosecution alleged to have been malicious was for misdemeanor, and the plaintiff was acquitted, he can prove his acquittal without producing a copy of the record; though

if the crime of which he was acquitted was felony, he [*101] must produce it. Morrison v. Kelly, 1 W. Bl. 384 (1762).

A prisoner on his acquittal has a right to receive, on demand, a copy of the record of his acquittal.' R. v. Brangan, 1 Leach, C. C. 27 (1742). In 16 Car. II. an order was made and signed by five judges, in consequence of persons being hindered from prosecuting by the frequency of actions for malicious prosecution, that no copy of any indictment for felony should be given at the sessions at the Old Bailey without special order, upon motion made

1 In North Carolina the plaintiff cannot recover in case for malicious prosecution without producing the record of his acquittal: Williams v. Woodhouse, 3 Dev. (N. C.) 257 (1831).

in Court, at the general gaol delivery. This order was re-published, by direction of the Court, in the May session of 1739, three years before R. v. Brangan, and upon the acquittal of Brangan his counsel moved for an order for a copy of the indictment to be delivered to him. Willes, C. J., refused to make the order, on the ground that the order of the Court did not override the common law right of prisoners on their acquittal "to a copy of the record of such acquittal for any use they might think fit to make of it; and that, after a demand of it had been made, the proper officer might be punished for refusing to make it out."

It seems probable that the reversal on appeal of a conviction is not a termination favourable to the person convicted upon which he can found an action for malicious prosecution. Reynolds v. Kennedy, 1 Wils. 232 (1748), which has frequently been quoted as an authority, was an appeal from the Court of King's Bench in Ireland. The declaration was for seizing the plaintiff's

brandy, and "falsely and maliciously" exhibiting an [*102] *information against him before the sub-commissioners

of excise for not having paid duty upon it. It alleged that the sub-commissioners condemned the brandy, and that the commissioners of appeal "most justly reversed the judgment of the sub-commissioners." It was held that as to the information before the sub-commissioners the declaration showed a foundation for the prosecution, and that as to the appeal "we cannot infer, from the judgment of reversal of the commissioners of appeal, that. the defendant, the prosecutor, was guilty of any malice."

In Mellor v. Baddeley, 2 Cr. & M. 675 (1834), the plaintiff had been convicted of night poaching under 1 & 2 Will. 4, c. 32, and had suffered imprisonment in default of paying a fine, though he might under the statute have appealed. He was nonsuited, and the Court of Exchequer refused a rule; but Reynolds v. Kennedy, was not referred to.

In Basébé v. Matthews, L. R. 2 C. P. 684 (1867), it was argued that a declaration was not demurrable which alleged a summary conviction from which there was no appeal, and the argument was not successful.

In Boaler v. Holder, 51 J. P. 277, and 3 Times Law Rep. 546 (1887), the plaintiff was indicted for publishing a libel knowing it to be false, and was convicted upon that indictment of publishing a libel, and sentenced to a term of imprisonment, which he

FAVOURABLE TERMINATION OF PROSECUTION-EVIDENCE. *103

duly underwent. Wills and Day, JJ., held that judgment had, upon proof of these facts, been wrongly given for the defendant, and made an order absolute for a new trial. *It appears [103] from the Times report that the jury expressly found the plaintiff not guilty of publishing a libel knowing it to be false, and that, consequently, so far as the plaintiff was prosecuted for that offence, the prosecution terminated favourably to him.

Where the statement of claim alleges that proceedings analogous to a prosecution have terminated, it may, in some cases, be presumed by reasonable intendment that the termination was favourable to the plaintiff. Redway v. McAndrew, L. R. 9 Q. B. 74 (1873).

The single exception to the rule that the prosecution must have terminated favourably to the plaintiff is that it does not apply to cases where the proceeding were ex parte, and the plaintiff had no opportunity of being heard. See Stewart v. Gromett, 7 C. B. N. S. 191 (1859), in which the defendant had made an ex parte application to a magistrate to bind the plaintiff, over to keep the peace, and the plaintiff, in default of finding sureties, had been imprisoned for six months. The declaration setting out these facts was held good on demurrer, on the ground that in this instance, as in the case of maliciously exhibiting articles of the peace (a), the usual rule as to a favourable termination did not apply.

(a) A person against whom articles of the peace are exhibited cannot be heard to contradict the statements in them, but must be bound over if they show sufficient cause. R. v. Doherty, 13 East, 171 (1810).