conceived no longer as a species of fraud, but as being to an incorporeal franchise what trespass is to the possession, or right to possession, of the corporeal subjects of property. We therefore do not pursue the topic here. III.-Malicious Prosecution and Abuse of Process. prosecu We have here one of the few cases in which proof of Malicious evil motive is required to complete an actionable wrong. tion. "In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, 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 ("); and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice" (s). And the plaintiff's case fails if his proof fails at any one of these points. So the law has been defined by a recent judgment of the Court of Appeal, confirmed by the House of Lords. It seems needless for the purposes of this work to add illustrations from earlier authorities. It is no excuse for the defendant that he instituted the (r) The facts have to be found by the jury, but the inference that on those facts there was or was not reasonable and probable cause is not for the jury but for the Court: cp. the authorities on false imprisonment, pp. 197-203, above. (s) Bowen L. J., Abrath v. N. E. R. Co. (1883) 11 Q. B. Div. 440, 455, 52 L. J. Q. B. 620: the deci sion of the Court of Appeal was Malicious civil proceedings. prosecution under the order of a Court, if the Court was moved by the defendant's false evidence (though not at his request) to give that order, and if the proceedings in the prosecution involved the repetition of the same falsehood. For otherwise the defendant would be allowed to take advantage of his own fraud upon the Court which ordered the prosecution (t). As in the case of deceit, and for similar reasons, it has been doubted whether an action for malicious prosecution will lie against a corporation. It seems, on principle, that such an action will lie if the wrongful act was done by a servant of the corporation in the course of his employment and in the company's supposed interest, and it has been so held (u); but there are dicta to the contrary (), and in particular a recent emphatic opinion of Lord Bramwell's (y), which, however, as pointed out by some of his colleagues at the time (z), was extra-judicial. Generally speaking, it is not an actionable wrong to institute civil proceedings without reasonable and probable cause, even if malice be proved. For in contemplation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour which gives him his costs against the plaintiff (a). And special damage (t) Fitzjohn v. Mackinder (Ex. Ch. 1861) 9 C. B. N. S. 505, 30 L. J. C. P. 257 (diss. Blackburn and Wightman JJ.). (u) Edwards v. Midland Rail. Co. (1880) 6 Q. B. D. 287, 50 L. J. Q. B. 281, Fry J. (x) See the judgment in the case (y) 11 App. Ca. at p. 250. p. 256. (a) It is common knowledge that the costs allowed in an action are hardly ever a real indemnity. The true reason is that litigation must end somewhere. If A. may sue B. for bringing a vexatious action, then, if A. fails to persuade the Court that B.'s original suit was vexatious, B. may again sue A. for bringing this latter action, and so ad infinitum. beyond the expense to which he has been put cannot well be so connected with the suit as a natural and probable consequence that the unrighteous plaintiff, on the ordinary principles of liability for indirect consequences, will be answerable for them (b). "In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution (c). But there are proceedings which, though civil, are not ordinary actions, and fall within the reason of the law which allows an action to lie for the malicious prosecution of a criminal charge. That reason is that prosecution on a charge "involving either scandal to reputation, or the possible loss of liberty to the person" (d), necessarily and manifestly imports damage. Now the commencement of proceedings in bankruptcy against a trader, or the analogous process of a petition to wind up a company, is in itself a blow struck at the credit of the person or company whose affairs are thus brought in question. Therefore such a proceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong (e). Other (b) See the full exposition in the Court of Appeal in Quartz Hill Gold Mining Co. v. Eyre (1883) 11 Q. B. Div. 674, 52 L. J. Q. B. 488, especially the judgment of Bowen L. J. (c) Bowen L. J., 11 Q. B. D. at p. 690. There has been a contrary decision in Vermont: Closson v. Staples (1869) 42 Vt. 209; 1 Am. Rep. 316. We do not think it is generally accepted in other jurisdictions; it is certainly in accordance with the opinion expressed by Butler in his notes to Co. Lit. 161 a, but Butler does not attend to the distinction by which the authorities he relies on are explained. (d) 11 Q. B. Div. 691. (e) Quartz Hill Gold Mining Co. v. Eyre (1883) note (b). The contrary opinions expressed in Johnson v. Emerson (1871) L. R. 6 Ex. 329, 40 L. J. Ex. 201, with reference to proceedings under the Bankruptcy Act of 1869, are disapproved: under the old bankruptcy law it was well settled that an action might be brought for malicious proceedings. Conspiracy. similar exceptional cases were possible so long as there were forms of civil process commencing with personal attachment; but such procedure has not now any place in our system; and the rule that in an ordinary way a fresh action does not lie for suing a civil action without cause has been settled and accepted for a much longer time (ƒ). In common law jurisdictions where a suit can be commenced by arrest of the defendant or attachment of his property, the old authorities and distinctions may still be material (g). The principles are the same as in actions for malicious prosecution, mutatis mutandis: thus an action for maliciously procuring the plaintiff to be adjudicated a bankrupt will not lie unless and until the adjudication has been set aside (h). Probably an action will lie for bringing and prosecuting an action in the name of a third person maliciously (which must mean from ill-will to the defendant in the action, and without an honest belief that the proceedings are or will be authorized by the nominal plaintiff), and without reasonable or probable cause, whereby the party against whom that action is brought sustains damage; but certainly such an action does not lie without actual damage (i). IV.-Other Malicious Wrongs. The modern action for malicious prosecution has taken the place of the old writ of conspiracy and the action on the case grounded thereon (k), out of which it seems to have developed. Whether conspiracy is known to the law as a substantive wrong, or in other words whether two or more persons can ever be joint wrong-doers, and liable to (f) Savile or Savill v. Roberts (1698) Ld. Raym. 374, 379; 12 Mod. 208, 210, and also in 5 Mod., Salkeld, and Carthew. (g) See Cooley on Torts, 187. As to British India, see Raj Chunder Roy v. Shama Soondari Debi, I. L. R. 4 Cal. 583. (h) Metropolitan Bank v. Pooley (1885) 10 App. Ca. 210, 54 L. J. Q. B. 449. (i) Cotterell v. Jones (1851) 11 C. B. 713, 21 L. J. C. P. 2. () F. N. B. 114 D. sqq. an action as such, by doing in execution of a previous agreement something it would not have been unlawful for them to do without such agreement, is a question of mixed history and speculation not wholly free from doubt. It seems however to be now settled for practical purposes that the conspiracy or "confederation" is only matter of inducement or evidence (7). "As a rule it is the damage wrongfully done, and not the conspiracy, that is the gist of actions on the case for conspiracy "(m). "In all such cases it will be found that there existed either an ultimate object of malice or wrong, or wrongful means of execution involving elements of injury to the public, or at least negativing the pursuit of a lawful object"(n). Either the wrongful acts by which the plaintiff has suffered were such as one person could not commit alone (o), say a riot, or they were wrongful because malicious, and the malice is proved by showing that they were done in execution of a concerted design. In the singular case of Gregory v. Duke of Brunswick (p) the action was in effect for hissing the plaintiff off the stage of a theatre in pursuance of a malicious conspiracy between the defendants. The Court were of opinion that in point of law the conspiracy was material only as evidence of malice, but that in point of fact there was no other such evidence, and therefore the jury were rightly directed that without proof of it the plaintiff's case must fail. "It may be true, in point of law, that, on the declaration as framed, one defendant might be convicted though the (1) Mogul Steamship Company v. M'Gregor, '92, A. C. 25, in H. L. (m) Bowen L. J. in S. C. in C. A. (1889) 23 Q. B. Div. at p. 616. (n) Lord Field, '92, A. C. at p. 52. (0) There are some forms of injury which can only be effected by the combination of many [persons]": Lord Hannen, '92, A. C. at p. 60. (p) 6 Man. & Gr. 205, 953 (1844). The defendants justified in a plea which has the merit of being amusing. |