fending persons, whether in the shape of indictment or information, which charge a party with crimes injurious to his fame and reputation, and tend to deprive him of his liberty; or whether such malice is evinced by malicious arrests, or by exhibiting groundless accusations, merely with a view to occasion expensed to the party, who is under the necessity of defending himself against them, this action on the case affords an adequate remedy to the party injured. It may be brought against one only; and where it is brought against two or more defendants, although a conspiracy be alleged in the declaration, and a verdict be found for all the defendants except one, yet plaintiff will be entitled to judgment. On the contrary, the action for a conspiracy must be brought against two persons at the leasts, because the gist of the action is the conspiracy; and if one only be found guilty, or if all except one are discharged by matter of law1, the action fails. And to maintain an action for a conspiracy, the party indicted must have been acquitted upon a good indictment, by verdict, for such is the language of the writ, "legitimo modo acquietatus," or "lawfully acquitted," which imports such an acquittal of the crime charged as will entitle the party to plead auter foits acquit, in case he be afterwards prosecuted for the same crime. But in an action on the case for a malicious prosecution, it is not necessary that the plaintiff should allege or prove such an acquittal; for it may be brought under circumstances which preclude the possibility of such an acquittal: as 1st, where a bill of indictment has been preferred and returned ignoramus m. 2dly, where the indictment has been preferred coram non judice". And lastly, where a party has been acquitted on a defect in the indictment. Formerly, indeed, it was supposed, that an acquittal on the ground of the insufficiency of the indictment was a material objection, where the subject matter of the indictment did not affect the reputation of the party accused, and he had not been imprisoned, because scandal and imprisonment were at that time considered as the only kinds of damage for which this action would lie. But it having been decided, in the case of Savile v. RobertsP, that the c Moore v. Shutter, 2 Show. 295. e Mills v. Mills, Cro. Car. 239. g F. N. B. 260. 4to. ed. 1755. h 28 Ass. 12. cited in F. N. B. 260. ¡ Ib. in nota. k Bro. Conspiracie, pl. 23. 1 Gilb. 199. m Payn v. Porter, Cro. Jac. 490. Agr. 2 Roll. R. 188. n 1 Roll. Abr. 112. pl. 9. o Jones v. Gwynn, Gilb. 185. Wicks v. Fentham, 4 T. R. 247. p Salk. 13. Carth. 416. Ld. Raym. 374. S. C. expense incurred by a groundless prosecution, without scandal or imprisonment of the party accused, was sufficient to support this action where the indictment was good, quoad the damage; it was shortly afterwards holden, in a case where the subject matter of the indictment did not affect the reputation of the plaintiff, and where the only damage which the plaintiff had sustained was the expense attending the prosecution, that this action might be maintained, although the plaintiff had been prosecuted on an insufficient indictment. The decision of Savile v. Roberts, has been confirmed by the case of Smith v. Hixon, Str. 977. more fully reported in Ca. Temp. Hardw. 54, where it was adjudged, that a husband alone might maintain an action for the malicious prosecution of his wife, the expenses of which had been defrayed by the husband. The case of Jones v. Gwynn, was recognised in Chambers v. Robinson, Str. 691. and in Wicks v. Fentham, 4 T. R. 247, where it was holden, that this action would lie, although plaintiff had been acquitted on a defect in the indictment, the subject matter of which did not affect his reputation. See also Pippett v. Hearn, 5 B. & A. 634, where it was holden, that an action would lie for the malicious prosecution of a bad indictment for perjury. The grounds of the action for a malicious prosecution are, the malice of the defendant, either express (1) or implied", q Jones v. Gwynn, Gilb. 185. 10 Mod. r Purcell v. Macnamara, 9 East, 381. 148.214. (1) If the indictment be found by the grand jury, the plaintiff must prove express malice, per Holt, C. J. Lord Raym. 381, unless the facts lie within the knowledge of the defendant. Parroll v. Fishwick, Bull. N. P. 14. cited by Park, J. in Willans v. Taylor, 6 Bingh. 189. but in a fuller note of this case, 9 East, 362, n. (b) it appears that this position is hardly warranted. The case was this: in an action for maliciously indicting the plaintiff for perjury, where the indictment was found, and the plaintiff acquitted by verdict, Ld. Mansfield, in summing up, said it was not necessary to prove express malice, for if it appeared that there was no probable cause, that was sufficient to prove an implied malice, which was all that was necessary to be proved to support this action, For in this case all the facts lay in the defendant's own knowledge, and if there were the least foundation for the prosecution, it was in his power, and incumbent on him, to prove it. Verdict for plaintiff, 50l. damages. N. The indictment was for perjury committed on the trial of an action for use and occupation, brought by the defendant against the plaintiff's master. "Where a person is acquitted by a want of probable causes (2), and an injury sustained by the plaintiff, by reason of the malicious prosecution, either in his person by imprisonment, his reputation by the scandal, or in s Farmer v. Darling, 4 Burr. 1971. jury, malice need not be proved at first, on the part of the plaintiff, but it is incumbent on the defendant to shew, on the other side, that there was a probable cause; but where the indictment is quashed, it is necessary for the plaintiff to prove express malice. Per Burnett, J. in Hunter v. French, Willes, 520. In Lilwal v. Smallman, Hereford Summer Assizes, 1753. MSS. which was an action for maliciously indicting plaintiff for stealing a shovel, value 11d.; it was objected that express malice had not been proved. Foster, J. overruled the objection, observing, that where the indictment is for felony, there the evidence of malice shall be left to the jury, and the defendant shall not object that express malice is not proved. But in indictments for misdemeanors, it was for some time a question whether an action would lie; but it was determined, at last, an action would lie, but in such action evidence of express malice must be given. In action for malicious prosecution, if the indictment was not found, that circumstance shews prima facie that there was no probable cause, and consequently that there was malice, until it be disproved. If the indictment was found, it throws the proof of want of probable cause and of malice on plaintiff; but in that case, if want of probable cause be fully proved, that is evidence to a jury of malice, without shewing express declarations, or other circumstances of malice. Hilditch v. Eyles, C. B. London Sittings, H. 29 G. 3. coram Wilson, J. confirmed by the court on motion for new trial. Holroyd's MSS. 1 (2) In Incledon v. Berry, Devonshire Summer Ass. 1805. Campb. 203, n. (a), recognized by Dallas, C. J. in Turner v. Turner, Gow's N. P. C. 20. in an action for maliciously indicting plaintiff for perjury, Lens, Serj. for the plaintiff, having proved express malice, contended, that it was not necessary for him to proceed any further, and that it lay on the defendant to shew probable cause for having instituted the prosecution; but Le Blanc, J. ruled, that some evidence (though slight evidence would be sufficient,) must be given on the part of the plaintiff of want of probable cause, before the defendant could be called upon for his defence. In Wallis v. Alpine, 1 Campb. 204. n. Ld. Ellenborough, C. J. held, that plaintiff was not excused from giving evidence of want of probable cause, from the circumstance of defendant, who had commenced a prosecution, having neglected to prefer a bill of indictment. "The essential ground of this action is, that a legal prosecution was carried on without probable cause. We say this emphatically, because every other allegation may be implied from his property by the expense. If the plaintiff cannot prove any such injury, he cannot maintain the action. It lies on the plaintiff to give prima facie evidence" of want of probable cause; but slight evidence is sufficient to throw the onus on the defendant of shewing that there was probable cause. By analogy to the action for a malicious prosecution, the law in modern times has permitted an action to be maintained t Byne v. Moore, 5 Taunt. 187. u Willans v. Taylor, 6 Bingh. 183. affirmed on error, B. R. 2 B. & Ad. 845. x Cotton v. James, 1 B. & Ad. 128. this; but this must be substantively proved, and cannot be implied. From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied. A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed from apparent guilt; and in neither case is he liable to this kind of action." Johnstone v. Sutton, 1 T. R. 544, 5. "The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to shew it probable or not probable are true, and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law.” Per Lord Mansfield, C. J. and Lord Loughborough, C. J. in Sutton v. Johnstone, 1 T. R. 545. and per Tindal, C. J., delivering judgment, Willans v. Taylor, 6 Bingh, 186. See also Golding v. Crowle, Bull. N. P. 14. Say. R. 1. S. C., and Davis v. Hardy, 6 B. & C. 225. "The question of probable cause, arising upon the facts proved or admitted, is a question for the court, and in general the plaintiff must give some evidence shewing the absence of probable cause. But such evidence is, in effect, the evidence of a negative, and very slight evidence of a negative is sufficient to call upon the other party to prove the affirmative, especially where the nature of the affirmation is such as to admit of proof by witnesses, and cannot depend upon matters lying exclusively within the party's own knowledge, as in some cases of criminal prosecution it may do. Per Ld. Tenterden, C. J., delivering judgment of the court in Cotton v. James, 1 B. & Ad. 133. "It is difficult to lay down any general rule as to the cases where the opinion of a jury should or should not be taken. I have considered the correct rule to be this: if there be any fact in dispute between the parties the judge should leave that to the jury, telling them, if they should, find in one way as to that fact, then, in his opinion, there was no probable cause, and their verdict should be for the plaintiff; if they should find in the other, then there was, and their verdict should be for the defendant." Per Ld. Tenterden, C. J. Blachford v. Dod, 2 B. & Ad. 184. See further on this subject, M'Donald v. Rooke, 2 Bingh. N. C. 217. for maliciously arresting or holding a party to bail, either where there is not any debt due, or where the party is held to bail for a larger sum than is really due. As in the analogous action for a malicious prosecution, it must appear that the prosecution is determined, so in the action for a malicious arrest it must be stated in the declaration, that the first action has been determined. This allegation must also be proved"; and it is not sufficient for this purpose to put in a judge's order to stay proceedings on payment of costs, and to prove that the costs were paid accordinglyb. But proof that no declaration was filed or delivered within a year after the return of the writ is sufficient to shew a determination of the suit. Termination of cause by stet processus, by consent of parties, is not sufficient. Wilkinson v. Howel, M. & Malk. 495. Tenterden, C. J. confirmed by court. So in an action for maliciously suing out a commission of bankrupt, it must be averred and proved that the commission was superseded [or that the fiat was annulled] before the commencement of the action; and if this fact be not proved, the plaintiff ought to be nonsuited, though it be not averred in the declaration, and though the defendant has omitted to demur. So in an action for a malicious presentment in the ecclesiastical court, it must appear that the presentment has been determined. To support an action for a malicious arrest, malice, and that the arrest was without probable cause, must be alleged and proved. The mere not proceeding in an action is not evidence of itself alone sufficient to support this action. But where there are mutual dealings between two parties, and items known to be due on each side of the account, an arrest for the amount of one side of the account without deducting what is due on the other, is malicious, and without probable causes. So where A. arrested B. on an affidavit of debt for money paid to his use, but did not declare until ruled to do so, and afterwards discontinued the action, and paid the costs, it was holdenh, that this was sufficient prima facie evidence of malice and of the absence of probable cause. A., to whom a sum of money was owing from B., sued out a writ against z Parker v. Langley, Gilb. R. 163. adjudged on special demurrer. a Norrish v. Richards, 3 Ad. & Ell. c Pierce v. Street, 3 B. & Ad. 397. order to annul fiat has now the effect of a supersedeas. See ante, p. 266. e Fisher v. Bristow, 1 Doug. 215. f Sinclair v. Eldred, 4 Taunt. 7. g Austin v. Debnam, 3 B. & C. 139. h Nicholson v. Coghill, 4 B. & C. 21. i Scheibel v. Fairbain, 1 Bos. & Pul. 388. recognized in Page v. Wiple, 3 East, 317, and Lewis v. Morris, 4 Tyr. 914. |