ways either by direct evidence of words or general conduct which show ill-feeling towards the plaintiff, or by proof of some act from which a jury would be held justified in inferring a malicious motive-and this act may be one not aimed at the particular individual who has suffered by it.

The allegation of the want of probable cause "must be substantively and expressly 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. From the most express malice the want of probable cause cannot be 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 upon apparent guilt; and in neither case is he liable to this kind of action." I "It is true that in order to support such an action there must be a concurrence of malice in the defendant 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. On the 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. The law, therefore, only renders him responsible where malice is combined with want of probable cause."

In connection with an action for malicious prosecution or arrest, the term "malice" does not necessarily signify spite or hatred towards an individual; it is sufficient if the defendant was actuated by any improper or indirect motive. "Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice is a malicious motive." Thus, instituting proceedings against another to forestall or avenge the bringing of an action by him, or to stop the mouth of a witness," or to make an example of one man merely to deter others," are instances of actions brought from indirect and improper motives.

3

4

But if the plaintiff fails to establish the absence of reasonable and probable cause, the presence of malice is immaterial. The defendant has done an act which is by itself prima facie

1 This passage is taken from "the Reasons on which the opinion of Lord Mansfield and Lord Loughborough, in the case of Johnstone v. Sutton (1786), was founded: see 1 T. R. at pp. 544, 545; affirmed ib. 784,

2 Per Tindal, C. J., in Willans v. Taylor (1829), 6 Bing. at p. 186. 3 Per Alderson, B., in Stevens v. Midland Ry. Co. (1854), 10 Exch. at p. 356. 4 Leith v. Pope (1779), 2 W. Bla. 1326.

5 Haddrick v. Heslop (1848), 12 Q. B. 267.

lawful in setting the law in motion against a man, whom he had sufficient reason to believe guilty; and the fact that he was actuated by malice in so doing cannot alter the legality of his act.1

Thus, where the jury found, in answer to specific questions, that the defendant did not take reasonable care to inform himself of the true facts; that he honestly believed in the full charge which he laid before the magistrates; and that he was actuated by malice and indirect motives in the proceedings taken against the plaintiff, the Court of Appeal held that, although the absence of reasonable and probable cause is some evidence from which malice may be inferred, the jury, by their finding as to the honest belief of the defendant, had negatived any such inference and that, in the absence of any other evidence of indirect motive, the finding of malice in the defendant was unsupported.2

4

Even where the defendant has been bound over to prosecute, an action for malicious prosecution will lie, if the plaintiff can prove that, when the defendant made the charge, he acted maliciously and without reasonable and probable cause.3 And this is so even where the prosecution has been instituted by the order of a county court judge. Again, where any one institutes proceedings with a bona fide belief in the guilt of the accused, but subsequently facts come to his knowledge which shake or alter that belief, if he nevertheless proceeds with the prosecution, he may be liable, for he ought to have abandoned it directly his opinion changed as to the guilt of the accused.

(iv.) The plaintiff must also prove that the proceedings instituted against him terminated in his favour. Thus, if A. institutes proceedings of a criminal nature against B. and B. is convicted, B. can bring no action for malicious prosecution, until the conviction is quashed. As long as the decision of one Court remains unreversed, no other Court-except on appea -can take upon itself to say that there was no reasonable and probable cause for the former decision." And this is so where the proceedings, of which the plaintiff complains, were taken in a foreign Court."

1 See, for instance, Corporation of Bradford v. Pickles, [1895] A. C. 587; Allen v. Flood, [1898] A. C. 1; and Davis v. Mayor, &c.. of Bromley, [1908] í K. B. 170; ante, pp. 409, 410.

2 Brown v. Hawkes, [1891] 2 Q. B. 718.

3 Dubois v. Keats (1840), 11 A. & E. 329.

4 Fitzjohn v. Mackinder (1861), 9 C. B. N. S. 505.

5 Metropolitan Bank v. Pooley (1885), 10 App. Cas. 210; The Quartz Hill, &c.,

Co. v. Eyre (1883), 11 Q. B. D. 674.

Basébé v. Matthews (1867), L. R. 2 C. P. 684.

1 Castrique v. Behrens (1861), 30 L. J. Q. B. 163.

There are other actions of a like nature, in which malice is a necessary ingredient. Thus, an action lies against any one who falsely and maliciously files a petition to make the plaintiff a bankrupt. "Here is falsehood and malice in the defendant, and great wrong and damage done to the plaintiff thereby. Now, wherever there is an injury done to a man's property by a false and malicious prosecution, it is most reasonable he should have an action to repair himself. But it is said, this action was never brought before; I wish never to hear this objection again. This action is for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief."1 But no action for maliciously procuring the bankruptcy of another can be maintained by a bankrupt still undischarged."

So an action will lie, without proof of any special damage, at the suit of a limited company against any one, who maliciously and without reasonable and probable cause presents a petition to wind the company up-but only after the petition has been dismissed.3

But it is not actionable for one man to commence in his own name a civil action against another maliciously and without reasonable and probable cause; the only penalty which such a plaintiff incurs is the payment of costs. If, however, one man takes in hand, upholds or assists with money or otherwise a civil action brought by or against another, in which he has no interest, and does so without any lawful cause arising from kindred, affection or motives. of charity, he is guilty of maintenance, which is an indictable misdemeanour at common law; and if such maintenance has caused special damage to the person sued (other than the necessity of paying "extra costs"), an action will lie to recover such damage. And this is so even

1 Per Pratt, C. J., in Chapman v. Pickersgill (1762), 2 Wils. at p. 146; and see Farley v. Danks (1855), 4 E. & B. 493; Johnson v. Emerson (1871), L. R.

6 Ex. 329.

2 Metropolitan Bank v. Pooley (1885), 10 App. Cas. 210.

3 The Quartz Hill, &c., Co. v. Eyre (1883), 11 Q. B. D. 674.

4 See ante, p. 206.

5 Bradlaugh v. Newdegate (1883), 11 Q. B. D. 1; Alabaster v. Harness, [1895] 1 Q. B. 339; Bussy v. Amalgamated Society of Railway Servants (1908), 24 Times L. R. 437; British Cash, &c., Conveyors, Ltd. v. Lamsoa, &c., Co., Ltd., [1908] 1 K. B. 1006. As to extra costs, see Gundry v. Sainsbury, [1910] 1 K. B. 99, 645.

But

though the action which was "maintained" succeeded.1 no action lies for assisting another in a criminal prosecution.2 But an action lies for bringing and prosecuting an action maliciously and without reasonable and probable cause in the name of a third person who is insolvent," if the party against whom that action is brought sustains an injury; . . . unless an injury be sustained, no such action will lie. If, however, the action had been brought by a solvent plaintiff and had been determined in favour of the defendant, and there had been an adjudication of costs in his favour, he would have sustained no injury and would have had no action against the party who sued him, although without reasonable and probable cause." 3

So an action lies against a witness for not obeying a subpæna, if his absence has directly caused loss to the plaintiff. But, curiously enough, no action lies against a witness who, in the course of a judicial proceeding, has uttered false statements, even though he has done it maliciously and without any reasonable or probable cause, and the plaintiff has suffered damage through the judicial tribunal acting on the evidence. And it has been held with regard to criminal proceedings that a man, against whom a conviction stands unreversed, cannot bring an action against a witness who negligently gave false evidence which caused that conviction.6

And again, where a judgment creditor issues execution for money which he knows is not due to him, he will be liable to an action. It is, of course, prima facie lawful for a successful plaintiff to issue execution for the amount of the judgment which he has obtained. But where he takes in execution the debtor's goods for a larger sum than remained due on the judgment, an action will lie if this was done maliciously and without reasonable or probable cause-as, for instance, if he had received various sums in part payment of the judgment, or was in any other way aware that the sum, for which he issued execution, was excessive.7

And, as we have already stated, an act which is in itself lawful will not become unlawful merely because it is done maliciously; though, if an act be prima facie unlawful, the presence of malice in the defendant's mind will, of course, destroy any defence in which bona fides is an essential ingredient, and generally also the defence that his act was inadvertent or accidental.

1 Neville v. London" Express" Newspaper, Ltd., [1919] A. C. 368.

2 Grant v. Thompson (1895), 72 L. T. 264.

3 Per Jervis, C. J., in Cotterell v. Jones and another (1851), 21 L. J. C. P. at p. 6; approved in Coondoo v. Mookerjee (1876), 2 App. Cas. 186.

Couling v. Coxe (1848), 6 C. B. 703. As to disobeying a subpoena duces tecum, see

R. v. Llanfaethly (1853), 2 E. & B. 940.

5 See Revis v. Smith (1856), 18 C. B. 126.

Bynoe v. Bank of England, [1902] 1 K. B. 467.

De Medina v. Grove (1846), 10 Q. B. 152; Tancred v. Leyland (1851), 16 Q. B. 669; Churchill v. Siggers (1854), 3 E. & B. 929. 8 See ante, pp. 409, 410,550.

CHAPTER XI.

FRAUDULENT MISREPRESENTATION.

"A MERE lie, thrown out at random without any intention of hurting anybody, but which some person was foolish enough to act upon," will not support an action of deceit, for the intention with which the misrepresentation was made is an essential part of the right of action.1 But any conscious misrepresentation, whether of fact or of law, will be sufficient, if the person to whom it was made was intended to act upon it and did so to his loss. Simple fraud gives no cause of action, unless the plaintiff can show that he has thereby suffered damage. It is immaterial whether the defendant has benefited by his fraud or not.

Negligence is not fraud. Hence, if a statement be made which is in fact untrue and the jury are satisfied that its assertion was the result of inadvertence and not of fraud, no action for damages will lie at common law; though the directors of a projected company have by statute been made liable for false statements, which they have negligently inserted in a prospectus and thereby induced the public to take shares in the company.3

In order, then, to succeed in an action for a fraudulent misrepresentation, the plaintiff must prove :

(i.) that the defendant made representations as to some existing fact

(ii.) with the intention of inducing the plaintiff to act upon them;

(iii.) that such representations were false in fact (iv.) to the knowledge of the defendant;

1 Per Ashurst, J., in Pasley v. Freeman (1789), 2 Sm. L. C., 12th ed. at p. 84.

2 Derry v. Peek (1889), 14 App. Cas. 337; Le Lièvre v. Gould, [1893] 1 Q. B.

491.

3 Companies (Consolidation) Act, 1908 (8 Edw. VII. c. 69), s. 84, re-enacting the Directors' Liability Act, 1890 (53 & 54 Vict. c. 64).