In an action for assault, the position of the person upon whom, Chap. II. the place and time where, and the circumstances under which, the Damages. assault was committed, should be taken into consideration by the jury in estimating the damages (m), and the Court is very reluctant to disturb their verdict on the ground of excessive compensation (n).

In an action for false imprisonment, the plaintiff can recover all the necessary expenses he was put to in order to recover his liberty (o) and where the plaintiff was compelled by arrest under a false warrant to pay more money than was due, he was held entitled to recover back the whole, and not only the over-payment (p). The damage must not be too remote, but must be the natural result of the arrest or wrongful imprisonment (q).

SECTION III.-MALICIOUS PROSECUTION.

secution.

This cause of action consists in the prosecution by the defen- Malicious prodant of legal proceedings, of a civil or criminal nature, against the plaintiff maliciously and without reasonable or probable cause, whereby the plaintiff is injured (r). In Churchill v. Siggers (s), Lord Campbell, C. J., says, "To put into force the process of the law maliciously, and without any reasonable or probable cause, is wrongful; and if thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action."

To succeed in an action for malicious prosecution, the plaintiff must allege and establish two things, absence of reasonable and probable cause and malice. The affirmative of both these allegations lies upon the plaintiff (t). "Malice alone," observes Tindal, C. J., is not sufficient, because a person actuated by the plainest malice, may nevertheless have a justifiable reason for the prose

(m) Edgell v. Francis, 1 M. & G. 222; Tullidge v. Wade, 3 Wils. 18.

(n) Hackle v. Money, 2 Wils. 205. (0) Foxall v. Barnett, 2 El. & Bl. 298; 23 L. J. Q. B. 7; Pritchett v. Boevey, 1 Cr. & M. 778.

(p) Clark v. Woods, 2 Ex. 395.

(q) Walker v. Olding, 1 H. & C. 121 ; Wilson v. Lanc. & York. Rail. Co., 9 C. B. N. S. 642; 30 L. J. C. P. 232; Glover v. Lond. & S. W. Rail. Co., L. R. 3 Q. B. 25; 37 L. J. Q. B. 57.

(r) Johnstone v. Sutton, 1 T. R. 493, 544.

(s) 23 L. J. Q. B. at p. 311; 3 El. & Bl. 937.

(t) Hicks v. Faulkner, 8 Q. B. D. 167; Walker v. S. East. Rail. Co., L. R. 5 C. P. 640; Saxon v. Castle, 6 A. & E. 652; De Medina v. Grove, 10 Q. B. 168; Dimmock v. Bowley, 26 L. J. C. P. 231: 2 C. B. N. S. 542. See also judgment of Ld. Colonsay, Lister v. Perryman, L. R. 4 H. L. at p. 542.

Absence of reaprobable cause and malice ne

sonable and

cessary to

support action.

D

Chap. II. cution.

Reasonable and probable cause.

On the other hand, the substantiating the accusation is not essential to exonerate the accuser from liability to an action; for he may have good reason to make the charge, and yet be compelled to abandon the prosecution by the death or absence of witnesses, or the difficulty of producing adequate legal proof. The law, therefore, only renders him responsible where malice is combined with want of probable cause (u).

Reasonable and probable cause has been defined to be," an honest belief in the guilt of the accused, based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed "(x). "There must be a probable cause," observes Tindal, C. J., " such as would operate on the mind of a reasonable man " (y).

The existence of reasonable or probable cause is a mixed proposition of law and fact. The rule of law is that the jury must find the facts on which the question of reasonable and probable cause depends, but that the judge must then determine whether the facts found do constitute reasonable and probable cause (z).

The reasonable and probable cause must not only be deducible in point of law from the facts, but must have existed in the defendant's mind at the time of his taking proceedings against the plaintiff (a). No definite rule can be laid down as to what constitutes reasonable and probable cause, but each case must depend upon its own circumstances (b).

Circumstances of mere suspicion cannot safely be relied upon as evidence of reasonable or probable cause. "A man," "A man," observes Bayley, J., "may prefer a charge either on the foundation of what he knows or what he suspects." But there is a wide

(u) Willans v. Taylor, 6 Bing. 186: 2 B. & Ad. 845.

(x) Hicks v. Faulkner, supra, judg ment of Hawkins, J., at p. 171.

(y) Broad v. Ham, 5 Bing. N. C. 725. (z) Lister v. Perryman, L. R. 4 H. L. 521; Panton v. Williams, 2 Q. B. 169 ; Busst v. Gibbons, 30 L. J. Ex. 75; Hicks v. Faulkner, supra, Heslop v. Chapman, 23 L. J. Q. B. 49.

(a) Turner v. Ambler, 10 Q. B. 252;
Delegal v. Highley, 3 New Ca. 950.

(b) Lister v. Perryman, and Busst v.
Gibbons, supra
As to instances of what

constitutes reasonable and probable cause, see James v. Phelps, 11 A. & E. 483; Haddrick v. Heslop, 12 Q. B. 267; Hailes v. Marks, 30 L. J. Ex. 389; Walker v. S. East. Rail. Co., L. R. 5 C. P. 640. If the defendant has laid all the facts fully and fairly before counsel, and acted bond fide upon the opinion given (however erroneous it may be), it will be evidence to prove probable cause; per Bayley, J., Ravenga v. Mackintosh, 2 B. & C. 697; Abrath v. N. East. Rail. Co., 11 Q. B. D. 79, 440.

difference, as regards both the accuser and the party accused, Chap. II. whether the charge is made on the one ground or the other. That which is founded on the accuser's own knowledge will require proof to that extent to warrant such a charge, whereas that which rests on suspicion only will be satisfied by circumstances sufficient to induce suspicion in the mind of a cautious person. This distinction between a direct charge and one upon suspicion only is well known. I may know that a person has stolen my property by having seen him commit the act, or by having heard him confess it; and in either of these cases the charge would proceed directly from my knowledge. But information to a less extent might reasonably create in me a suspicion; and then the charge would proceed in a form less. direct" (c).

A person may reasonably institute a prosecution upon informa. tion given to him by another, whom he deems to be trustworthy, and whose information he honestly believes to be true; but the question whether or not a reasonable man would or would not act upon the information, must depend in a great degree upon the opinion to be formed of the position and circumstances of the informant (d).

There is absence of reasonable and probable cause, where the defendant does not believe in the truth of the charge brought by him against the plaintiff (e). General evidence of the plaintiff's bad character is not admissible for the purpose of proving that the defendant had reasonable and probable cause for instituting the prosecution (ƒ).

In an action for malicious prosecution, it appeared that the plaintiff was employed by H. to "dress" some timber on the defendant's premises, to be paid for by instalments as the work proceeded. Before it was completed H. made an assignment of his effects to the defendant. Money being due to the plaintiff, he asked permission to take some pieces of timber away, and was informed that he could not do so.

(c) Davis v. Noake, 6 M. & S. 32. (d) Lister v. Perryman, L. R. 4 H. L. 521.

(e) Cohen v. Morgan, 6 D. & R. 8.

(f) Per Wood, B., in Newsom v. Carr, 2 Stark. 69. Lord Kenyon, in Rodriguez v. Tadmire, 2 Esp. 721, ruled that the

Next morning he removed

defendant might give evidence of the
plaintiff's bad character, when the plain-
tiff claimed damages in respect of his
own good character. As to the reception

of this class of evidence in an action for
deceit, see Blake v. The Albion Life Ass.
Co., 4 C. P. D. 94.

Chap. II.

Malice may not be evidence of want of probable cause.

Malice.

some of the timber and placed it on his own premises, and in the course of the same day his attorney wrote to the defendant's attorney, stating that the plaintiff had a lien for work on the timber removed, and unless the amount due for the work was paid, the timber would be sold. At a subsequent interview the plaintiff told the defendant he took the timber because he was afraid he should not be paid by H. The defendant afterwards laid an information against the plaintiff for stealing the timber, upon which the plaintiff was arrested and taken before a justice, when he was discharged. It was held that there was want of reasonable and probable cause, Bramwell, B., observing, "It seems to me that common sense would have led the defendant to suppose that this man was merely erroneous in his view of the law, or, possibly, that he had got a lien; but instead of that, the defendant supposes that no man can lay his hands on goods that do not belong to him, without being guilty of a felony. If you get at the bottom of his own mind, he might say he was justified, because the plaintiff had no right to do it, no matter how honest the intention; and if that was his opinion it is a blunder on the part of the defendant, and it is one of those blunders which it is just as well that anybody should be punished for, as it is very likely that as long as the plaintiff lives he will sometimes be asked whether he has not been charged with felony" (g).

Proof of the strongest malice is no evidence of want of probable cause, if it be proved that the defendant, at the time he took proceedings, was aware of circumstances which led to a reasonable suspicion that the plaintiff was guilty of a legal offence, and upon which he might have acted (h).

The fact that the prosecution was abandoned, is not of itself sufficient evidence of the want of reasonable and probable cause (i).

The malice necessary to be proved in an action for malicious prosecution is malice in fact, malus animus, indicating that the defendant was actuated either by spite or ill-will towards an individual, or by indirect or improper motives (k). Malice is a question for the jury, which may generally be inferred by them from the fact of the defendant having acted without reasonable

(g) Huntley v. Simson, 27 L. J. Ex.
134.

(h) Johnstone v. Sutton, 1 T. R. 545.
(i) Incledon v. Barry, 1 Camp. 203

(n); Purcell v. Macnamara, 9 East, 361.

(k) Hicks v. Faulkner, 8 Q. B. D. 167 per Hawkins, J.

and probable cause (l). Where it is found that the defendant Chap. II. acted from an improper motive, malice may be inferred (m).

"A prosecution," observes Cockburn, C. J., " though in the outset not malicious, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution with the intention of procuring per nefas a conviction (n). Where, however, an agent of the defendants, in their absence and without their knowledge, issued a summons against the plaintiff on a charge of a felony, which was dismissed, the absence of reasonable and probable cause was held to be no evidence of malice against them, although they attended the hearing of the summons and allowed the case to be opened on their behalf as prosecutors (o).

Proof that the defendant put an advertisement in the newspapers of the finding of the indictment of the grand jury, together with other scandalous matter, is evidence of malice (p). Any statements made by the defendant showing that he was actuated by ill-will in prosecuting the plaintiff are evidence of malice (q).

It is.no defence to an action for malicious prosecution to show that the indictment preferred against the plaintiff was bad in point of law," for a bad indictment serves all the purposes of malice, by putting the party to expense and exposing him, but no purpose of justice in bringing the party to justice, if he were guilty (r), nor that the defendant was bound over by recognizance to prosecute, if the prosecution in its inception was tainted with malice " (8).

the plaintiff.

It is essential for the plaintiff in an action for malicious prose- Termination of prosecution cution to show that the proceeding alleged to have been instituted in favour of maliciously and without reasonable and probable cause has terminated (t) in his favour (u), if from its nature it is capable of such a termination. Where the proceeding is ex parte, and the

(1) Johnstone v. Sutton, 1 T. R. 545; judgment of Lords Mansfield and Loughborough, Mitchell v. Jenkins, 5 B. & Äd. 588; Burley v. Bethune, 5 Taunt. 580.

(m) Haddrick v. Heslop, 12 Q. B. 267. (n) Fitzjohn v. Mackinder, 30 L. J. C. P. 264.

(0) Weston v. Beeman, 27 L. J. Ex. 57. (p) Chambers v. Robinson, 1 Stra. 691. (q) Michell v. Williams, 11 M. & W. 217.

(r) Wicks v. Fentham, 4 T. R. 248.

(s) Fitzjohn v. Mackinder, 9 C. B. N. S. 505; 30 L. J. C. P. 257.

(t) Fisher v. Bristow, 1 Doug. 215; Arundell v. Tregono, Yelv. 116.

(u) Basebé v. Mathews, L. R. 2 C. P. 684; Barber v. Lissiter, 29 L. J. C. P. 161; 7 C. B. N. S. 175. By 14 & 15 Vict. c. 99, s. 13, a certified copy of the record of the indictment, trial, and acquittal, under the hand of the clerk of the court where the acquittal took place, is sufficient to prove the acquittal.