Maintenance (a).

Claim in an Action for Maintenance.

1. The plaintiff has suffered damage by the defendant unlawfully upholding and maintaining one A. B. in an action in the Queen's Bench Division of the High Court of Justice, which the said A. B. had brought against the plaintiff to recover a penalty of £500.

2. The defendant had no interest in the said action or in the recovery of the said penalty.

1. Claim in an Action for Malicious Arrest.

1. The plaintiff has suffered damage by the defendant on the 5th May, 1880, falsely and maliciously and without any

(a) "It results, I conceive, from all these cases, that to bind oneself What is after the commencement of a suit to pay the expenses of another in that mainsuit, more especially if that other be a person himself of no means, and tenance. the suit be one which he cannot bring, is still, as it always was, maintenance; and for such maintenance an action will lie." (Per Coleridge, L.C.J., in Bradlaugh v. Newdigate, 11 Q. B. Div. 9.) But where there is a common interest between the maintainer of the action and the person maintained no action will lie, as when a master assists a servant in a litigation, or a landlord his tenant, one commoner a fellow commoner, or a rich man gives money to a poor man out of charity to maintain a right which he would otherwise lose. (Ibid.)

In this action the fact that plaintiff has been defeated in the litigation Measure of in question, and had to pay damages and costs, will not disentitle him damage, from succeeding. On the contrary, it will increase the damages, which will be the damages or penalty he has had to pay, with all costs to which he has been put as between solicitor and client. (Bradlaugh v. Newdigate, supra.) See also on this subject Pechell v. Watson, 8 M. & W. 691; Shackell v. Rosier, 2 Bingham, N. C. 634; Hutley v. Hutley, L. R. 8 Q. B. 112; Flight v. Leman, 4 Q. B. 883, where it was held that merely to instigate a suit was not maintenance, though to support one already instigated might be.

(b) This action was once pretty frequent, but since the 32 & 33 Vict.

reasonable or probable cause, making an affidavit in an action. then depending in the Queen's Bench Division wherein the now plaintiff was defendant, to the effect that the plaintiff was justly indebted to him in the sum of £100, that he intended to go abroad and leave England in order to avoid payment of the said debt, and that he the said plaintiff would be a material and necessary witness on the part of the defendant at the trial of the said action, and upon such false affidavit the plaintiff procured from the judge at Chambers an order for the arrest and imprisonment of the plaintiff for six months or until he gave bail.

When a c. 62, s. 6, which abolished imprisonment for debt, it is of rare occurrence. person still Since that Act, however, a person may still, during the course of civil liable to proceedings, be arrested in several cases; and in all these cases it is subimprisonmitted that a person is liable in an action for a malicious arrest if he, ment for acting maliciously and without reasonable and probable cause, sets the law in motion and procures the arrest of another. By s. 4 of the non-payment of 32 & 33 Vict. c. 62, a person may be arrested-(1) who, being a trustee fails to pay over trust moneys ordered by the Court to be paid over; (2) money. who, being a solicitor fails to pay any costs which he has been directed personally to pay: (3) who, being a bankrupt has failed to pay any instalments of income to the trustee in his bankruptcy which by the order of the Court he has been directed to pay.

Cases where

arrest on mesne

process legal.

The foun

dation of the action for mali. cious

arrest.

By sect. 5, any person who fails to pay any debt due from him in pursuance of any order or judgment, may be committed to prison for six weeks on proof that he has the means of payment.

By sect. 6 it is enacted-(a) if a plaintiff shall at any time before final judgment prove, by evidence on oath, to the satisfaction of a judge, that he has a cause of action against the defendant to the amount of £50 or upwards, and that there is probable cause for believing that the defendant is about to quit England, and that the absence of the defendant will materially prejudice the plaintiff in the prosecution of his action, then it shall be lawful for the judge to order the defendant to be arrested and imprisoned for a period not exceeding six months, unless he give security that he will not leave England without the leave of the Court; (b) where the plaintiff sues for a penalty other than a penalty in respect of any contract, it shall not be necessary for him to prove that the absence of the defendant will materially prejudice him in the prosecution of his action.

The foundation of the action for malicious arrest in one or other of these cases must be that the party obtaining the order for the arrest, and who is the defendant, has imposed on the judge by some false statement; and this false statement and the surrounding circumstances must be such as clearly to demonstrate that the defendant had no reasonable or probable cause for the step he took. It must also be averred and proved that the order of arrest has been rescinded, and that the proceedings have terminated in the plaintiff's favour; but this fact is not by any means conclusive to prove an absence of reasonable cause on the part of the defendant.

An action will lie for maliciously causing a ship to be arrested and detained under a false allegation that there was a good claim for necessaries against her. (Redway v. Mc Andrew, L. R. 9 Q. B. 74.)

2. The plaintiff was arrested under the said order and detained in prison for five days until the judge at Chambers made a further order directing his unconditional release.

The plaintiff claims £1000.

2. Claim in an Action for Maliciously Arresting and Detaining a Ship.

1. The plaintiff was and is the owner and possessed of a ship called the "D. of S."

2. The defendant, on the 10th of June, 1880, falsely and maliciously and without reasonable or probable cause, represented to the registrar of the Truro County Court that one G. H. then had a cause of action against the now plaintiff for necessaries supplied for the use of the said ship, in respect of which the said G. H. was entitled to have the said ship arrested and detained, and by such representation he procured the registrar of the said Court to issue a warrant for her arrest.

3. The said ship was arrested and detained under the said warrant for a long time until all proceedings were determined in her favour, and the plaintiff has sustained damage thereby. The plaintiff claims £500 damages.

Malicious Prosecution (@).

1. Claim in an Action for Malicious Prosecution. The defendant maliciously and without reasonable and probable cause, preferred a charge of larceny against the plaintiff before a Justice of the Peace, causing the plaintiff to be sent for trial on the charge and imprisoned thereon, and prose

(a) An action for malicious prosecution is given where a person acting maliciously, and without reasonable or probable cause, has preferred against another in a criminal court, or before a judicial officer, a charge which in the event has been decided to be false, but which during its pendency has inflicted some injury to the property, person, or reputation of the plaintiff. The plaintiff is put to proof of five things.

1st. A criminal charge must have been preferred before a judicial officer. Any act by which the criminal law is set in motion against another will not amount to a malicious prosecution. To give a man into the custody of a police constable on a charge of felony might be a false imprisonment; it would not be a malicious prosecution. "There can be no malicious prosecution until the parties come before a Court or a

A criminal charge

must have been made.

The criminal charge must have been dismissed.

Or conviction quashed.

cuted the plaintiff thereon at the Middlesex Quarter Sessions, where the plaintiff was acquitted.

judicial officer." (Per Willes, J., in Austin v. Dowling, L. R. 5 C. P. 540, which see for the distinction between false imprisonment and malicious prosecution.)

2nd. The charge must have been false in fact, and so determined by the proper criminal Court before which it came. It is not necessary that the first Court before which the charge came should have decided it in the plaintiff's favour. It is enough if a Court of Appeal has given a decision in his favour, so that the ultimate determination declares the falseness of the charge; but subject to this, a man may be perfectly innocent of a charge that has been made against him, and prepared with abundant evidence to prove the fact, yet if a judgment against him of a competent Court remains on record, he cannot proceed with his action for malicious prosecution. The reversal of any conviction made upon the charge is a condition precedent to his right to sue in all cases save one. It has been decided that a malicious exhibition of articles of the peace against another, (which is of course a species of prosecution.) supported by a false oath of threats having been used, may be made the foundation of an action for damages, although the accused person has been required to find sureties and been imprisoned for default, and the order of commitment has never been reversed. (Steward v. Gromett, Exception. 29 L. J. C. P. 170.) The reason of this exception from the general rule is that proceedings before justices in cases of the kind are generally er parte, the accused has no means of controverting the charge, and the justices have little or no option to refuse to bind him over, when the person exhibiting the articles swears that he is in bodily fear.

Malice

necessary.

Want of reasonable

and probable cause.

3rd. The prosecution must be malicious, that is to say, instituted from any other motive than the simple desire of bringing to justice one whom you believe has committed a crime. (See Stevens v. Midland Rail. Co.. 23 L. J. Ex. 328.) But "malice alone is not sufficient to found the action, because a person actuated by the plainest malice may neverthe less have a justifiable reason for a prosecution." (Per Tindal, C. J., in Willans v. Taylor, 6 Bing. 186.) Where, however, the judge rules (for it is his province to determine this, the facts being found by the jury) that there is no reasonable or probable cause for the prosecution, the jury may from that infer malice. (Busst v. Gibbons, 30 L. J. Exch. 75.)

4th. The prosecution must have been without reasonable or probable cause. It is impossible to lay down any general rule as to what constitutes a want of reasonable or probable cause for a prosecution; but the facts of the particular case ought to be such as to satisfy a reasonable mind that the accuser had little or no ground for the proceeding but his desire to injure the accused, or that he acted in the matter recklessly and carelessly, not caring what mistake he might make, and forbearing to institute reasonable inquiries which would readily have removed any little suspicion that might attach to the accused. The question of whether the defendant took reasonable care to inform himself of the truth of the charge is a material consideration. (Per Brett, M. R.. in Abrath v. The North Eastern Rail. Co., 11 Q. B. Div. 450.) Evidence amounts to. that the accuser did not himself believe in the charge which he made is cogent evidence that he had no reasonable or probable cause; but from the most express malice merely the want of probable cause cannot be implied. (Turner v. Ambler, 10 Q. B. 252.)

What

5th. The plaintiff must show that he has suffered either in person, reputation, or pocket. It is generally very easy to aver and prove sufficient damage to ground the action, for it is seldom that the charge

1. The defendant denies that he acted maliciously or without reasonable and probable cause.

2. The plaintiff was prior to the making of the said charge in the defendant's employment as his butler. A quantity of silver plate was missed by the defendant, and upon the plaintiff's box being searched a portion of it was found hidden away in it. The plaintiff offered no explanation, whereupon the defendant preferred the said charge against him.

Reply.

The plaintiff joins issue upon the statement of defence.

is not so scandalous as that the mere preferring of it is not some injury to the plaintiff's reputation, and it almost always happens that the plaintiff is put to some expense in defending himself from it, which he can allege in his statement of claim, and in respect of which he can

recover.

At the trial of the action it is for the jury to find the facts on which the question of reasonable and probable cause depends, but when the facts have been found, it is for the judge to determine whether they constitute reasonable and probable cause for the prosecution. (Lister v. Perryman, L. R. 4 H. L. 521.) The question of malice or no malice is entirely for the jury.

The judge to determine question of reasonable and pro

In the recent case of Abrath v. The North Eastern Rail. Co. (11 Q. B. bable Div. 440), the law in regard to the burden of proof cast upon a plaintiff damages. in an action of this kind was exhaustively discussed by the Court of Appeal. There it was held that in an action for malicious prosecution the burden of proof as to all the issues arising therein lies upon the plaintiff; and although the plaintiff proves that he was innocent of the charge laid against him, and although the judge, in order to enable himself to determine the issue of reasonable and probable cause, leaves subsidiary questions of fact to the jury, nevertheless the onus of proving the existence of such facts as tend to establish the want of reasonable and probable cause on the part of the defendant, rests upon the plaintiff. In Stevens v. The Midland Rail. Co. (10 Exch. 352), Baron Alderson intimated that an action for malicious prosecution would not lie against a corporation because it could not be guilty of malice, but this view was not acted upon in other cases, and in Edwards v. The Midland Rail. Co. (6 Q. B. Div. 287), Fry, L. J., expressly decided that such an action would lie.

An action will lie for maliciously and without reasonable or probable cause presenting a winding-up petition against a trading company. (The Quartz Hill, &c., Co. v. Eyre, 11 Q. B. Div. 674.)