1883.

ABRATH

V.

NORTH

COMPANY.

Brett, M.R.

question whether there was an absence of reasonable cause, to determine whether reasonable care was taken by the defendants to inform themselves of the true state of the facts. The question, EASTERN whether reasonable care has or has not been taken by a prosecutor RAILWAY to inform himself of the real state of the case, is not merely a piece of evidence to prove some fact, but it is a question which is itself to be decided by evidence, and upon which evidence to prove and disprove it may be given. It is a necessary part of the question whether there was reasonable and probable cause, because if there has been a want of reasonable care on the part of the prosecutor to inform himself of the true state of the case, then there must be a want of reasonable and probable cause. It is one of those facts for which I have tried to find a proper designation, but I have not succeeded in finding one satisfactory to my mind; it may be described as a 'fundamental' fact, in order to try to distinguish it from a fact which is merely evidence of something else. It is a fact which it would be necessary to allege and prove, and it is not merely a fact which is evidence of something which is to be alleged and proved.

Therefore, it is to my mind a fact of which the burden of proof lies upon the person who alleges it, and it falls within the rule which I have stated. The burden of proof of satisfying a jury that there was a want of reasonable care lies upon the plaintiff, because the proof of that want of reasonable care is a necessary part of the larger question, of which the burden of proof lies upon him, namely, that there was a want of reasonable and probable cause to institute the prosecution. It follows, therefore, to my mind, that if the direction of Cave, J., to the jury was simply that it was a necessary part of the question whether there was a want of reasonable and probable cause for instituting the prosecution against the plaintiff, that it should be decided whether reasonable care had been taken by the defendants to inform themselves of the true state of the case, and that the burden of proving that minor proposition, as well as the whole proposition, lay upon the plaintiff, it is a direction which cannot be impeached. This was in substance the direction of Cave, J., and I feel certain that his meaning was understood by the jury.

BOWEN and FRY, L.JJ., delivered judgement to the like effect, and the appeal was dismissed.

1883.

ABRATH

v.

NOTE.—In an action for false imprisonment the burden of proof of the existence of reasonable and probable cause is on the defendant; in an action for malicious prosecution the onus lies upon the plaintiff to prove its nonexistence. The reason for this distinction is that any interference with a man's personal liberty is primâ facie wrongful, and therefore has to be justified; but any one is primâ facie entitled merely to set the criminal law COMPANY. in motion.

Imprisoning is primâ facie a tort; prosecution is not so in itself,' per Alderson, B., in Panton v. Williams, 2 Q. B. at p. 181; and see per Hawkins, J., in Hicks v. Faulkner, 8 Q. B. D. at p. 170.

Moreover in an action for false imprisonment, being an action in trespass, it is not necessary for the plaintiff to prove that the defendant was actuated by malice. Indeed in such action evidence of malice would be altogether irrelevant, unless, possibly, to inflame damages (see Flewster v. Royle (1808), 1 Camp. 187).-[ED.]

1841. PANTON v. WILLIAMS, 2 Q. B. 169 (Ex. Ch.).

In an action for malicious prosecution the question whether there was reasonable and probable cause for the prosecution is one of law for the judge.

TINDAL, C. J., in this vacation (June 15), delivered the judgement of the Court.

Ann Williams, the plaintiff below, brought her action on the case in the Court of Queen's Bench against Panton, the defendant below, complaining that he had falsely and maliciously, and without any reasonable or probable cause whatsoever, procured her to be indicted for the crime of forgery. The defendant below pleaded the general issue, Not guilty. And, upon the trial before the Lord Chief Justice of that Court, after summing up the evidence, he directed the jury, amongst other things, that, if they thought there was reasonable and probable cause for taking the steps against the plaintiff below, their verdict must be for the defendant; and, also, that it appeared to him that it was not a question of law, in a case of that sort, whether there was reasonable and probable cause, but that it was altogether a question of fact for the jury; that he should act wrong if he were to take the question from their consideration.

To which direction the counsel for the defendant below excepted, and insisted that his lordship was bound to state to the jury what facts, if proved, would amount to probable cause, leaving to them

NORTHEASTERN

RAILWAY

1841.

PANTON

v.

WILLIAMS.

1841.

PANTON

v.

WILLIAMS.

Tindal, C.J.

only the question, whether they believed the evidence adduced in order to prove such facts.' And the counsel then proceeded to state, in his bill of exceptions, certain particular facts which had been proved at the trial, insisting that all the facts together, and each of them separately, constituted probable cause: and the counsel further excepted and objected that the judge'ought not to leave the question, whether there was or was not probable cause for the prosecution, to the jury as a question for them, and without telling them what would be probable cause.'

Upon this bill of exceptions, we take the broad question between the parties to be this: whether, in a case in which the question of reasonable or probable cause depends, not upon a few simple facts, but upon facts which are numerous and complicated, and upon inferences to be drawn therefrom, it is the duty of the judge to inform the jury, if they find the facts proved and the inferences to be warranted by such facts, the same do or do not amount to reasonable or probable cause, so as thereby to leave the question of fact to the jury, and the abstract question of law to the judge? And we are all of opinion that it is the duty of the judge so to do.

In the more simple cases, where the question of reasonable and probable cause depends entirely on the proof of the facts and circumstances which gave rise to and attended the prosecution, no doubt has ever existed, from the time of the earliest authorities, but that such question is purely a question of law to be decided by the judge. In Coxe v. Wirrall1 and in Pain v. Rochester 2, both of which were actions on the case for falsely and maliciously procuring the plaintiff to be indicted for felony, the defendant in each action set forth, in the plea, the facts and circumstances that induced him to indict; and, the plaintiff having in each instance demurred, it was the Court which had to determine as a matter of law, and not the jury as a matter of fact, whether the statement in the plea did or did not form a sufficient excuse. And in the case last referred to the very distinction now under consideration was laid down by the Court, upon the objection, then taken, that the plea amounted to the general issue only; the Court holding it to be a good plea, per doubt del lay gents, for that the defendant 'confessed the procurement of the indictment, and avoided it by matter in law.' And, although the practice which then obtained 1 Cro. Jac. 193. 2 Cro. Eliz. 871.

has been altered for a great length of time, by introducing into the declaration, not only the statement that the charge was false and malicious, but also that it was made without reasonable or probable cause, and thereby compelling the plaintiff to give some evidence thereof, and enabling the defendant to prove his case under the plea of Not guilty,-yet the rule of law, that this question belongs to the judge only, and not to the jury, is not, by such alteration in pleading, in any way impaired. And, still further, the authorities collected in the case of Sutton v. Johnstone1, and the authority of that case itself, and also the decision of Buller, J., there cited 2, prove incontestably that it is a question for the jury, whether the facts brought forward in evidence be true or not; but that what is reasonable or probable cause is matter of law.

There have been some cases in the later books which appear at first sight to have somewhat relaxed the application of that rule, by seeming to leave more than the mere question of the facts proved to the jury: but, upon further examination, it will be found that, although there had been an apparent, there has been no real, departure from the rule. Thus, in some cases, the reasonableness and probability of the ground for prosecution has depended, not merely upon the proof of certain facts, but upon the question, whether other facts which furnished an answer to the prosecution were known to the defendant at the time it was instituted: again, in other cases, the question has turned upon the inquiry, whether the facts stated to the defendant at the time, and which formed the ground of the prosecution, were believed by him or not: in other cases the inquiry has been, whether, from the conduct of the defendant himself, the jury will infer that he was conscious he had no reasonable or probable cause. But, in these and many other cases which might be suggested, it is obvious that the knowledge, the belief, and the conduct of the defendant are really so many additional facts for the consideration of the jury: so that, in effect, nothing is left to the jury but the truth of the facts proved, and the justice of the inferences to be drawn from such facts; both

11 T. R. 493. Johnstone v. Sutton, in error, in Exch. Ch. 1 T. R. 510; Sutton v. Johnstone, in Dom. Proc. 1 T. R. 784, and 1 Br. P. C. 76 (second edition).

2 Candell v. London, cited 1 T. R. 520.

1841.

PANTON

v.

WILLIAMS.

Tindal, C. J.

v.

1841. which investigations fall within the legitimate province of the PANTON jury, whilst, at the same time, they have received the law from the judge, that, according as they find the facts proved or not proved, and the inferences warranted or not, there was reasonable and probable ground for the prosecution, or the reverse.

WILLIAMS.

Tindal, C.J.

And, such being the rule of law where the facts are few and the case simple, we cannot hold it to be otherwise where the facts are more numerous and complicated. It is undoubtedly attended with greater difficulty in the latter case, to bring before the jury all the combinations of which numerous facts are susceptible, and to place in a distinct point of view the application of the rule of law, according as all or some only of the facts, and inferences from facts, are made out to their satisfaction. But it is equally certain that the task is not impracticable: and it rarely happens but that there are some leading facts in each case which present a broad distinction to their view, without having recourse to the less important circumstances that have been brought before them.

Upon the whole, as the question both of law and of fact was left in this case entirely to the jury, we think the exception must be allowed, and that there must be a venire de novo.

Venire de novo awarded.

1867.

BASÉBÉ

1867. BASÉBÉ v. MATTHEWS, L. R. 2 C. P. 684.

In an action for malicious prosecution it is essential for the plaintiff to prove that the proceedings in respect of which the action is brought have been determined in his favour.

The declaration stated that the defendant Ellen falsely and maliciously, and without reasonable and probable cause, appeared before a justice of the peace, and charged the plaintiff with MATTHEWS. assaulting and beating her, contrary to the statute, and by false,

V.

scandalous, and malicious statements then made by the said Ellen before the justice, and without any reasonable and probable cause, caused the justice wrongfully to convict the plaintiff of the supposed offence, and to adjudge that he should pay a fine of 40s., and £1 58. 6d. for costs, which said fine and costs the plaintiff was compelled to pay, there being no appeal from the said conviction; and that, by reason of the premises, the plaintiff had been injured in his reputation, and put to expense, &c.