CHAPTER LXIII. ACTION FOR A MALICIOUS PROSECUTION, OR A MALICIOUS ARREST OR PROCEEDING IN A CIVIL SUIT, OR AN ABUSE OF PROCESS. 1. General principle. How it is applied to action for prosecution before a court martial. It is a general principle that where it can be shewn that one man has causelessly and maliciously accused another of a crime or has otherwise vexed him by causelessly and maliciously exercising upon him to his damage, powers incident to his situation of superior, the injured party is entitled to redress by this species of action. Saville v. Roberts, Gilb. 185; Jones v. Gwynn, 10 Mod. 148. The great and important question whether an action would lie for a groundless prosecution before a court martial was brought into judgment for the first time in Sutton v. Johnstone, 1 T. R. 593. It was objected in arrest of judgment that no action for a malicious prosecution will lie for a subordinate officer against his superior officer-the commander of a squadron-for an act done in the course of discipline and under powers incident to his situation. This objection was overruled in the court of exchequer. That court considered the principle of the action as ascertained in Saville v. Roberts, Gilb. 185, Ld. Raym. 378, 9, and Jones v. Gwynn, 10 Mod. 148, to be general and universal; it was influenced also by Wall v. McNamara, 1 T. R. 536, and Mostyn v. Fabrigas, Cowp. 175, (cited ante, in 1 Rob. Prac. 56, 7,) which being cases wherein one species of action is supported against military men in command, in one instance by a subordinate officer, in the other by a person subject to the powers incident to the situation of those military men in command, for acts done by colour of their authority, the court could not readily see why another species of action, differing from those in form rather than in substance, should not also be sustained. 1 T. R. 502. On a writ of error the exchequer chamber differed from the court of exchequer; and the reasons on which the opinion of Lord Mansfield and Lord Loughborough was founded, were reported to the chancellor and afterwards copied. 1 T. R. 544. In Virginia there has been a tradition that these reasons furnish the only instance in Lord Mansfield's long judicial career of an opinion written out by him. But the fact is not exactly so. In 1770 he delivered in Woodfall's case, 5 Burr. 2664, the opinion of the court of king's bench, and deposited a copy of it with the clerk-assistant of the house of lords. Sixteen years afterwards (in 1786) was written the opinion in Johnstone v. Sutton. Though not the only-it was perhaps the last-instance of an opinion written out by him; for Lord Mansfield was then in his 82d year, and his attendance in court ceased a short time afterwards. "The occasion," he said, "has often arisen at different periods of time, when men of the fleets put upon their trials before a court-martial have thought the charge without a probable cause and have warmly felt the injury of such an act of malice or oppression: yet till this experiment it never entered into any man's head that such an action as this could be brought; consequently there is no usage, precedent or authority in support of it." Adverting to the sea military code which in the previous reign was collected and digested into an act of parliament, he said, "This military law hath foreseen that though it is necessary to give superiors great discretionary power, it may be abused to oppression and therefore has provided against such abuse by the 33d article. A commander who arrests, suspends and puts a man on his trial without a probable cause, is guilty within that article; but the same jurisdiction which tries the original charge must try the probable cause; which in effect is a new trial. And every reason which requires the original charge to be tried by a military jurisdiction, equally holds to try the probable cause by that jurisdiction." 1 T. R. 548, 9. Though such was the opinion given in the exchequer chamber on this question, that court did not consider the decision of it necessary to the judgment in the cause, because supposing the action to lie, it thought judgment ought to be given for the defendant. Id. 550. In the house of lords the judgment of the exchequer chamber was affirmed. Id. 784. 2. Action for malicious prosecution before a court of common law. A writ of conspiracy properly so called did not lie at the common law in any case but where the conspiracy was to indict the party either of treason or capital felony and a verdict had been rendered in his favour; and such writ must be brought against two at least. But an action on the case in the nature of a conspiracy may be against one. Skinner v. Gunton &c. 1 Saund. 230; Saville v. Roberts, Ld. Raym. 378, 9; Subley v. Mott &c. 1 Wils. 210; Jones v. Baker &c. 7 Cow. 445; Hutchins v. Hutchins, 7 Hill 107; Bicknell v. Dorion, 16 Pick. 489. In a case in Virginia it was insisted that though a person who institutes a prosecution maliciously and without probable cause, or who conspires with another to institute such prosecution, is liable to an action, in the one case for a conspiracy, in the other for malicious prosecution, yet to advise another to institute such prosecution was not actionable. The declaration in this case substantially charging that the defendant, maliciously, and without probable cause, consulted with, advised and procured a third person, falsely, maliciously, and without probable cause, to prosecute the plaintiff for felony, this advice and procurement were held to be actionable. Mowry v. Miller, 3 Leigh 561. An action will not lie for a prosecution unless it was malicious and without probable cause. Arbuckle v. Taylor &c. 3 Dow. 180; Purcell v. Macnamara, 1 Camp. 199, 9 East 361. There must be a concurrence of the two things-malice and want of probable cause. Malice alone is not sufficient because a person actuated by the plainest malice may nevertheless have a justifiable reason for prosecution. other hand, the substantiating the accusation is not essential to exonerate the accuser from liability to an action; for he may have had 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. Tindal, C. J., in Willans v. Taylor, 6 Bingh. 183, 19 Eng. Com. Law Rep. 48. 3. Action for a malicious arrest or proceeding in a civil suit. On the authority of Saville v. Roberts, 1 Salk. 14, an action is held not maintainable to recover damages sustained by the plaintiff in defending a vexatious action brought against him by the defendant. Purton v. Honnor, 1 Bos. & Pul. 205. In other words, it does not lie merely for bringing a suit without sufficient ground. Vanduzor v. Linderman, 10 Johns. 106; Bicknell v. Dorion, 16 Pick. 486. The case is different where the process of the law is, without any reasonable or probable cause, put into force maliciously. If thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action on the case. 3 El. & Black. 937, 77 Eng. Com. Law Rep. 937; Sinclair v. Eldred, 4 Taunt. 7; Olinger v. McChesney, 7 Leigh 660. It has been contended that where a plaintiff after issuing a writ of capias ad respondendum recovers the debt, the law imposes an obligation on him to countermand the writ; but it was held that for the mere non-feasance in not countermanding it, an action would not lie; there being no averment of malice. Scheibel v. Fairbain &c. 1 Bos. & Pul. 388; Page v. Wiple, 3 East 314. Lord Ellenborough thought it was not the duty of a plaintiff to run after his writ which has properly issued, in order to stop the execution of it; but that it was rather the concern of the debtor when he satisfied the demand to ask for a countermand of the writ or an order for his discharge. 3 East 317. In the two last cases the plaintiffs in the suits were merely passive. There is another case in which no evidence being given of malice, the plaintiff was nonsuited notwithstanding the party was holden to bail under an alias capias issued after the debt was discharged and a receipt given. Gibson v. Chaters, 2 Bos. & Pul. 129. This decision was questioned by Lawrence, J. in Sinclair v. Eldred, 4 Taunt. 9. But Lord Denman has thought it maintainable as the affidavit of debt was made before the payment, and the party arresting does not appear to have known of the payment when the alias writ was taken out. 6 Adol. & El. 652, 33 Eng. Com. Law Rep. 164. In England, when a debtor taken in execution tenders to the creditor all the money that he is bound to pay to satisfy it, it is the duty of the creditor to accept the same in satisfaction of his debt, and to give an authority to the officer in whose custody the debtor is, to allow the debtor to go at large. The refusal of the creditor, after such tender, to accept the money and give such authority to the sheriff is wrongful and will be presumed to have been malicious, in the absence of any circumstances to rebut the presumption of malice, and an action on the case will lie against him for such wrongful and malicious act. Crozer v. Pilling &c. 4 Barn. & Cress. 26, 10 Eng. Com. Law Rep. 271. Of this case Lord Denman has said that he thought the creditor was hardly used, 7 Adol. & El. 167, 34 Eng. Com. Law Rep. 72; but he has since noticed as material that the declaration contained an averment that the refusal was malicious and without reasonable or probable cause. 10 Adol. & El. N. S. 169, 59 Eng. Com. Law Rep. 169. Sometimes an action has been brought for issuing execution for too much. Wentworth v. Ballen, 9 Barn. & Cress. 840, 17 Eng. Com. Law Rep. 506. In the absence of any averment of malice, or of the want of reasonable or probable cause for enforcing judgments to the extent to which they are enforced, it has been adjudged not to be a sufficient ground of action that the judgments had been partly satisfied by pay ments in part satisfaction, and that the defendants wrongfully and injuriously enforced them for the whole amount. "Prima facie," said Lord Denman, "the plaintiff has a right to take out execution upon an unsatisfied judgment for the amount of the debt or damages recovered. If the judgment has been satisfied in part, application may be made to the court of chancery, or to the equitable jurisdiction of the court of common law, to restrain the plaintiff from taking out execution or rather from endorsing and executing his process for more than is actually due; but great inconsistency and inconvenience might arise if the merits or force and effect of a judgment, remaining wholly unreversed, and good upon the face of it, could be wholly or partially questioned in a collateral action such as this, in which the gist of the action, as it appears by the declaration, is the levying for the whole amount after it had been reduced by payments.' De Medina v. Grove, 10 Adol. & El. N. S. 168, 59 Eng. Com. Law Rep. 168. This judgment was affirmed in the exchequer chamber; Wilde, C. J. saying there is no authority to shew that the employment of either mesne or final process will furnish ground of action against the person employing it unless he has acted maliciously and without probable cause. S. C. 177. The doctrine is admitted by Lord Campbell. He says "process of execution on a judgment seeking to obtain satisfaction for the sum recovered is prima facie lawful; and the creditor cannot be rendered liable to an action, the debtor merely alleging and proving that the judgment had been partly satisfied and that execution was sued out for a larger sum than remained due upon the judgment. Without malice and the want of probable cause, the only remedy for the judgmentdebtor is to apply to the court or judge that he may be discharged, and that satisfaction may be entered up on payment of the balance justly due." Churchill v. Siggers, 3 El. & Black. 937, 77 Eng. Com. Law Rep. 937; Tucker, J. in Moore v. Chapman, 3 H. & M. 265. But it would not be creditable to our jurisprudence if the debtor had no remedy by action where his person or his goods have been taken in execution for a larger sum than remained due on the judgment, this having been done by the creditor maliciously and without reasonable or probable cause, that is, the creditor well knowing that the sum for which execution is sued out is excessive, and his motive being to oppress or injure the debtor. For, says Lord Campbell, "the court or judge to whom a summary application is made for the debtor's liberation, can give no redress beyond putting an end to the process of execution on payment of the sum due, although by |