Demurrer, on the ground that no action lies for a malicious prosecution, unless the prosecution has failed. Joinder. 1867. BASÉBÉ ย. Berresford appeared to support the demurrer, but the Court MATTHEWS. called upon C. C. Wood to support the declaration. [KEATING, J., referred to Gilding v. Eyre1, where, in an action for wrongfully and maliciously and without reasonable and probable cause procuring the arrest of the plaintiff for a larger sum than was due upon the judgement, it was held not to be necessary for the plaintiff to allege that he had obtained his discharge by order of a judge, so as to show that the proceedings had terminated in his favour.] In Churchill v. Siggers 2, which was a similar action, Lord Campbell, C. J., says: To put into force the process of the law maliciously and without any reasonable or probable cause is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss, which is the foundation of an action on the case. Process of execution on a judgement seeking to obtain satisfaction for the sum recovered is prima facie lawful; and the creditor cannot be rendered liable to an action, the debtor merely alleging and proving that the judgement had been partly satisfied and that execution was sued out for a larger sum than remained due upon the judgement. Without malice and the want of probable cause, the only remedy for the judgement debtor is to apply to the Court or a judge that he may be discharged, and that satisfaction may be entered upon payment of the balance justly due. But it would not be creditable to our jurisprudence if the debtor had no remedy by action when his person or his goods have been taken in execution for a larger sum than remained due on the judgement, this having been done by the creditor maliciously and without reasonable or probable cause; i.e. the creditor well knowing that the sum for which execution is sued out is excessive, and his motive being to oppress and injure the debtor.' That reasoning is precisely applicable here. In Fitzjohn v. Mackinder the opinion of Willes, J., is strong to show that, if the proceeding be malicious and false, 1 10 C. B. (N. S.) 592; 31 L. J. (C. P.) 174. 2 3 E. & B. 929, 937; 23 L. J. (Q. B.) 308. 8 C. B. (N. S.) 78; 29 L. J. (C. P.) 167. In error, 9 C. B. (N. S.) 505. E 1867. BASÉBÉ V. MATTHEWS. so that the conviction is obtained by means of a fraud upon the Court, the mere fact of its remaining unreversed, the plaintiff having no means of calling it in question, will not be held conclusive evidence of probable cause. The observations of the judges in Steward v. Gromett1 are also strongly in favour of the view now presented. Williams, J., says: 'In the case of the exhibiting of articles of the peace,-which it seems to me is strictly analogous to the less formal proceeding before the magistrates out of sessions, -the authorities show that the matter could not terminate in favour of the plaintiff, because he is not at liberty to controvert the statement made against him; and therefore it is impossible to say that the existence of the proceedings, and the fact that they have not terminated favourably to the plaintiff, is any evidence that there was reasonable or probable cause for instituting them.' In Venafra v. Johnson2 there was no allegation that the conviction had been set aside. [MONTAGUE SMITH, J.-In the notes to Ashby v. White, in I Smith's Leading Cases, sixth edition, 258, it is said that 'an unreversed judgement raises a necessary presumption that the proceedings to obtain it were instituted with reasonable and probable cause.'] BYLES, J.-I think we should be disturbing foundations if we were to admit that there is any doubt that the criminal proceeding must be determined in favour of the accused before he can maintain an action for a malicious prosecution. If this were not so, almost every case would have to be tried over again upon its merits. In my judgement it makes no difference that the party convicted has no power of appealing. This doctrine is as old as the case of Vanderberg v. Blake, where Hale, C. J., says, that, if such an action should be allowed,'-that is, an action against a customhouse officer for seizing goods, which were afterwards condemned as forfeited by judgement of the proper Court, the judgement would be blowed off by a side-wind.' KEATING, J.-I am entirely of the same opinion. MONTAGUE SMITH, J.-I am of the same opinion. In Castrique 1867. BASÉBÉ. V. MATTHEWS. Montague v. Behrens1, which was an action for conspiring with certain persons fraudulently and unlawfully to procure an attachment and condemnation of a ship by a proceeding in rem in a foreign court, Crompton, J., in delivering the judgement of the Court, says: 'There is no doubt, on principle, and on the authorities, that an Smith, J. action lies for maliciously and without reasonable and probable cause, setting the law of this country in motion to the damage of the plaintiff, though not for a mere conspiracy to do so, without actual legal damage: Cotterell v. Jones 2; Barber v. Lissiter 3. But, in such an action, it is essential to show that the proceeding alleged to be instituted maliciously and without probable cause has terminated in favour of the plaintiff, if from its nature it be capable of such termination. The reason seems to be, that, if in the proceeding complained of the decision was against the plaintiff, and was still unreversed, it would not be consistent with the principles on which law is administered for another court, not being a court of appeal, to hold that the decision was come to without reasonable and probable cause.' The only ground upon which Mr. Wood has attempted to distinguish this case from the current of authorities is, that here the plaintiff had no opportunity of appealing against the conviction. If we yielded to his argument, we should be constituting ourselves a court of appeal in a matter in which the legislature has thought fit to declare that there shall be no appeal. It was intended that the decision of the magistrate in a case of this sort should be final. It cannot be impeached in an action. Judgement for the defendants. 1883. THE QUARTZ HILL CONSOLIDATED GOLD MINING COMPANY v. EYRE, L. R. 11 Q. B. D. 674 (C. A.). In an action for malicious prosecution of proceedings other than criminal proceedings special damage must be proved in order to sustain the action, unless the proceedings are such as from their very nature are calculated to injure the credit of the plaintiff. BRETT, M. R.—This action, which was tried before Stephen, J., has been brought against the defendant on the ground that he 1 3 E. & E. 709, 721; 30 L. J. (Q. B.) 163, 168. 1883. THE QUARTZ 2 II C. B. 713. v. 7 C. B. (N.S.) 175; 29 L. J. (C. P.) 161. EYRE. 1883. falsely and maliciously and without reasonable or probable cause THE QUARTZ presented a petition for the winding-up of the plaintiff company. HILL CON- At the trial the only evidence given of pecuniary damage was that SOLIDATED MINING V. GOLD the plaintiff company upon the hearing of that petition, had been COMPANY put to extra costs. Thereupon the learned judge, without giving EYRE. a decision upon the other points of the case, directed a nonsuit, Brett, M.R. upon the ground that in order to maintain an action of this kind special damage must be shown, and that the fact of being obliged to pay extra costs was not special damage, and, therefore, that the action would not lie. To that ruling the plaintiff company objected; however, upon an application for a rule for a new trial to the Queen's Bench Division, the learned judges agreed with Stephen, J., but solely because they were of opinion that the case was governed by Cotterell v. Jones1; they therefore gave judgement upon the same ground as Stephen, J., without expressly deciding the other points. A rule for a new trial having been granted in this Court, cause has been shown with great ability and great care. I assent to the suggestion, that even although we may disagree with the reasons for the decision of Stephen, J., nevertheless his judgement must stand good if it can be supported upon other grounds. We must, therefore, consider all the points urged before us. The first question to which I shall refer is whether an action will lie for falsely and maliciously and without reasonable or probable cause presenting a petition to wind-up a company, although the company has suffered no pecuniary damage besides the payment of extra costs. I entirely agree that even although civil proceedings are taken falsely and maliciously and without reasonable or probable cause, nevertheless no action will lie in respect of them, unless they produce some damage of which the law will take notice. The present action is in tort, and in order to support it the plaintiff company must have sustained some damage such as the law takes notice of. I assent to the objection taken by the defendant's counsel that the obligation to pay extra costs is not damage of that kind. The theory of extra costs is that they are not necessary to the purposes of the party who has incurred them. When the costs are taxed as against the losing party in the litigation, he is bound to pay only what are called technically the costs between party 1 11 C. B. 713; 21 L. J. (C. P.) 2. 1883. THE QUARTZ SOLIDATED GOLD MINING v. EYRE. Brett, M.R. and party'; and the successful party is left to pay what are called technically the extra costs.' The theory is that the costs which the losing party is bound to pay, are all that were necessarily in- HILL CONcurred by the successful party in the litigation, and that it is right to compel him to pay those costs because they have been caused by COMPANY his unjust litigation; but that those which are called 'extra costs,' not being necessarily incurred by the successful party in order to maintain his case, are not incurred by reason of the unjust litigation. It may be quite reasonable as between the successful party and his solicitor that the 'extra costs' should be paid to that solicitor; but it is unreasonable that the losing party should pay them, they not having been caused by his litigation. If this be taken to be the reason why 'extra costs' are not allowed upon taxation, it is obviously immaterial whether or not the litigation was false and malicious and without reasonable or probable cause; the 'extra costs' are not damage caused by the unjust litigation, and therefore they are not damage for which an action will lie. When we look back to the decisions of the judges of earlier times (which decisions are to my mind the best guides for judges of the present day), we find it laid down by Holt, C. J., in Savile v. Roberts1, that there are three heads of damage which will support an action for malicious prosecution. There is damage to a man's person, as when he is taken into custody, whether that be, as in former times, upon mesne process or upon final process, or whether it be upon a criminal charge. To take away a man's liberty is damage, of which the law will take notice. Secondly, to cause a man to be put to expense is damage, of which the law will take notice. But Holt, C. J., adds a third head of damage, and that is where a man's fair fame and credit are injured. This is also a head of damage of which the law will take notice. Under the old law as to bankruptcy it was held that where a man was falsely and maliciously and without reasonable or probable cause made a bankrupt, two kinds of legal injury were inflicted upon him: first, in order to get rid of the bankruptcy, he was obliged to incur expense, and that was an injury; secondly, it was held that to allege of a trader that he was insolvent and liable to be made a bankrupt, was injury to his fair fame and credit, of which the law would take notice. Therefore under the old system of bankruptcy a trader had a good cause I Ld. Raym. 374. 1 |