either his personal or his professional reputation, or impeaching his title to any land or thing, or disparaging the goods he manufactures or sells. Any statement, whether written or spoken, which is clearly calculated to injure the plaintiff in his business, and which has in fact injured his business and caused him pecuniary loss, may be ground for an action for damages. Such a statement may assert that the goods which the plaintiff offers for sale are not what he represents them to be, or that they are an infringement of somebody's patent or copyright1; or it may urge people to bring actions against the plaintiff, or warn them not to deal with him, or not to pay him money due to him, or assert that he has given up business.2 If any such words be spoken falsely and without reasonable cause, and have in fact injured the plaintiff in his trade, they will be actionable. There are also words which do not affect a man's reputation, profession or trade, but which nevertheless may cause him special damage. There is authority for holding that if such words are written or spoken by the defendant with the malicious intention of injuring the plaintiff, and the contemplated injury follows as the direct result of the defendant's words, an action on the case will lie whatever be the nature of the words which the defendant employed. Whether an action on the case will also lie for such words if they were written or spoken without lawful occasion and have caused damage which is the natural and necessary consequence of their publication, although the defendant never designed or intended that such a result should follow, is at present not clear law.3 1 As to the position of a patentee who has issued such circulars or notices, see s. 36 of the Patents and Designs Act, 1907 (7 Edw. VII. c. 29), formerly s. 32 of the Patents, Designs and Trade Marks Act, 1883 (46 & 47 Vict. c. 57). 2 3 Ratcliffe v. Evans, [1892] 2 Q. B. 524. See, however, Green v. Button (1835), 2 Cr. M. & R. 707; Barley v. Walford (1846), 9 Q. B. 197; Dixon v. Holden (1869), L. R. 7 Eq. 492; Richardson v. Silvester (1873), L. R. 9 Q. B. 34; Riding v. Smith (1876), 1 Ex. D. at pp. 94, 96; Green v. Archer (1891), 7 Times L. R. 542; Newton v. Amalgamated "Musicians' Union (1896), 12 Times L. R. 623; Wilkinson v. Downton, [1897 ] 2 Q. B. 57; Leathem v. Craig and others, [1899] 2 Ir. R. 667; Janvier v. Sweeney, [1919] 2 K. B. 316. B.C.L. 35 CHAPTER X. MALICIOUS PROSECUTION, &c. IN most actions of tort, the motive which actuated the defendant is immaterial; it is enough that he either intentionally or negligently did the act complained of. But in the class of actions which we are now approaching, the state of the defendant's mind at the time when he did the act is most important; the plaintiff cannot succeed unless he can show either guilty knowledge or some wicked or indirect motive in the defendant. Chief among these are actions for malicious prosecution. It has been already stated as a general principle of the common law that an action lies whenever one man puts the process of the law in motion against another maliciously and without reasonable and probable cause. We have already dealt with the action for malicious arrest, which is one instance of the application of this general principle; another is the action for malicious prosecution. To succeed in this action, the plaintiff must prove:(i.) that the defendant instituted criminal proceedings against him before a judicial officer; (ii) that in so doing he acted without reasonable and probable cause; (iii.) that in so doing he acted maliciously; and (iv.) that the proceedings 'terminated in the plaintiff's favour. The question whether there was or was not an absence of reasonable and probable cause is for the judge; all the other issues are for the jury, if there be any evidence to go to them. It is not necessary, in order to succeed in an action for malicious prosecution, for the plaintiff to prove that he has 1 See ante, p. 474. suffered any special pecuniary loss through the conduct of the defendant. The unwarranted charge brought against him of criminal misconduct must of itself injure his reputation; it may have led to an arrest, for which he would be entitled to further compensation. In either case, the plaintiff has probably been put to expense in connection with his defence, either for counsel, solicitor or witnesses, and these expenses he is entitled to recover from the defendant as damages. (i.) First, then, the plaintiff must prove the institution of proceedings against him by the defendant. It will not be sufficient for him to show that the defendant merely furnished the authorities with facts, upon which they instituted proceedings. Thus, where the defendant had merely laid the facts bona fide before a magistrate, who erroneously treated the matter as a felony whereas it was in reality only a civil injury and issued a warrant for the apprehension of the plaintiff, no action lay against the defendant; he was not responsible for the mistake of the magistrate, and could not therefore be said to have instituted the proceedings. If, however, the defendant laid a formal complaint or information before a magistrate, or signed the charge-sheet at the police station, or instructed a solicitor to prosecute, this will be strong evidence to show that he is responsible for the proceedings. But where the defendant, acting bona fide, had sworn an information before a magistrate under section 10 of the Criminal Law Amendment Act, 1885,2 and the magistrate, exercising his judicial discretion, issued a search warrant, it was held that no action for malicious prosecution lay against the defendant; for though he swore the information, he had not "instituted the proceedings."3 Where a prosecution is maliciously instituted without reasonable and probable cause by the servant or agent of a company or corporation, an action will lie against the company or corporation, if the servant or agent acted by the authority of his employers or if his act was within the ordinary course of his employment. But where a bank 1 Wyatt v. White (1860), 29 L. J. Ex. 193. 2 48 & 49 Vict. c. 69. 3 Hope v. Evered (1886), 17 Q. B. D. 338; Lea v. Charrington (1889), 23 Q. B. D. 45, 272. In such cases, moreover, the fact that the magistrate issued the warrant is clear proof that there was reasonable and probable cause for the defendant's action. Edwards v. Midland Ry. Co. (1880), 6 Q. B. D. 287; Cornford v. Carlton Bank, Ltd., [1899] 1 Q. B. 392; [1900] 1 Q. B. 22; Citizens' Life Assurance Co., Ltd. v. Brown, [1904] A. C. 423. manager without special authority ordered the arrest and prosecution of the plaintiff, it was held that no action lay against the bank; for the manager's act was not within the scope of his authority.' (ii.) Next the plaintiff must satisfy the judge "that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause.' 112 In an action for false imprisonment, as we have seen, the burden lies on the defendant to prove affirmatively that the imprisonment was lawful; in an action for malicious prosecution, however, it is for the plaintiff to establish a negative proposition-that there was no reasonable and probable cause for the prosecution. This he must establish to the satisfaction of the judge, who, in order to enable himself to determine this issue, may leave subsidiary questions of fact to the jury, in which case 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. Thus, for instance, it will be for the jury to say whether the defendant believed in the guilt of the accused; whether he believed in the existence of the facts on which he had acted, and had taken reasonable care to assure himself of their truth; or whether he knew of certain other facts, which afforded an answer to the prosecution. The judge must accept their findings, and then decide whether the facts so found do or do not amount to a reasonable and probable cause for the prosecution.* 3 "There must be, first, an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; thirdly, such secondly-mentioned belief must be based upon reasonable 1 Bank of New South Wales v. Owston (1879), 4 App. Cas. 270. 2 Per Bowen, L. J., in Abrath v. N. E. Ry. Co. (1883), 11 Q. B. D. at p. 455 ; and see Bradshaw v. Waterlow & Sons, [1915] 3 K. B. 527. 3 Hicks v. Faulkner (1878), 8 Q. B. D. 167; Abrath v. N. E. Ry. Co. (1883), 11 Q. B. D. 440; (1886), 11 App. Cas. 247. Lister v. Perryman (1868), L. R. 4 H. L. 521. In this case Perryman failed in his action, although Lister had acted prosecution. on hearsay evidence in instituting the grounds; by this I mean such grounds as would lead any fairly cautious man in the defendant's situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused."1 66 'In order to justify a defendant there must be a reasonable cause, such as would operate on the mind of a discreet man; there must also be a probable cause, such as would operate on the mind of a reasonable man-at all events, such as would operate on the mind of the party making the charge, otherwise there is no probable cause for him." 2 Thus, where the defendant had prosecuted the plaintiff for perjury and the plaintiff was acquitted, and subsequently in an action for malicious prosecution there was a conflict of evidence on the very point on which the plaintiff was alleged to have committed perjury, the judge directed the jury that, if they were not satisfied which of the parties they should believe, they must find for the defendant, as the plaintiff would, in that case, have failed to show that the defendant had acted without reasonable and probable cause; and it was held on a motion for a new trial that the direction was right.3 The belief of the defendant in the guilt of the plaintiff at the time when he instituted the proceedings against him is very material. If he can show that he acted bona fide and took counsel's opinion on the facts of the case, he has a very strong defence, however erroneous counsel's opinion may prove to be. But if he withholds facts from counsel or purposely obtains the advice of an inexperienced lawyer, he will be liable in an action for malicious prosecution, because he could not have had a bona fide belief in the guilt of the plaintiff. Malice cannot be inferred from the mere fact that the prosecution failed." (iii) Next, the plaintiff must prove that in instituting the proceedings the defendant was actuated by malice. Such malice may consist either of personal ill-will against the plaintiff, or of a general disregard of the right consideration. due to all mankind which, though it may not be directed against any one in particular, is nevertheless productive of injury to the plaintiff. Malice may, therefore, be proved in two 1 Per cur. in Hicks v. Faulkner (1878), 8 Q. B. D. at pp. 171, 172. 2 Per Tindal, C. J., in Broad v. Ham (1839), 5 Bing. N. C. at p. 725, quoted with approval by Lord Hatherley, L. C., in Lister v. Perryman (1873), L. R. 4 H. L. at p. 530. 3 Hicks v. Faulkner (1878), 8 Q. B. D. 167. Ravenga v. Mackintosh (1824), 2 B. & C. 693. |