case, where there are mutual accounts between parties, and where an arrest for the whole sum claimed by the plaintiff would not be malicious; for example, the plaintiff might know that the set-off was open to dispute, and that there was reasonable ground for disputing it. In that case, though it might afterwards appear that the set-off did exist, the arrest would not be malicious. The term " malice" in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. That would not be the case where, there being an unsettled account, with items on both sides, one of the parties, believing bonâ fide that a certain sum was due to him, arrested his debtor for that sum, though it afterwards appeared that a less sum was due; nor where a party made such an arrest, acting bonâ fide under a wrong notion of the law and pursuant to legal advice. The question of malice having in this case been wholly withdrawn from the jury, I think the rule for a new trial must be made absolute. PATTESON J. The whole argument for the defendant may be shortly summed up thus:-The question of malice ought to have been submitted to the jury, who might have inferred it from the want of probable cause; but they were not bound of necessity so to do. Here it was not left to the jury to infer malice; if the jury are to be told that where a want of probable cause is proved, malice must necessarily be inferred, it will, in future, be only necessary in every case to prove want of probable cause; whereas, it is essential for a plaintiff to prove facts from which the Judge may decide that there is 1833. MITCHELL against JENKINS. want 1833. MITCHELL against JENKINS. want of probable cause, and the jury that there is malice. TAUNTON J. At the trial I acted upon the decision in Bromage v. Prosser (a). That was an action of slander, and it was held, that although malice was the gist of the action, there were two sorts of malice,-malice in fact and malice in law; the former denoting an act done from ill-will towards an individual; the latter a wrongful act intentionally done, without just cause or excuse; and that in ordinary actions for slander, malice in law was to be inferred from the publishing the slanderous matter, the act itself being wrongful and intentional, and without any just cause or excuse; but that in actions for slander primâ facie excusable on account of the cause of publishing the slanderous matter, malice in fact must be proved. It appeared to me that the present defendant Jenkins, having sued out a bailable writ for 45l., knowing that there was a set-off to the amount of 167. 5s., had been guilty of a wrongful act, and therefore that malice in law ought to be presumed. It struck me that there was no distinction (in this respect) between an ordinary action for slander and an action for malicious arrest; but I am now satisfied that in this latter form of action malice is a question of fact, which ought to be left to the jury. The rule for a new trial must therefore be made absolute. Rule absolute. (a) 4 B. & C. 47 1835. The KING against The Inhabitants of FRIESTON. Monday, in re Nov. 11th. quarter sessions decided against 123 629 an appeal on a preliminary objection, the will grant a them to enter FLANAGAN moved for a rule calling on the justices Where the A&E 28 of the Isle of Ely to shew cause why a mandamus have improperly ate. 657 should not issue, commanding them to enter continuances and hear an appeal against an order of removal, in which the inhabitants of the parish of Frieston, in the county of Lincoln, were the appellants, and the habitants of Tydd St. Giles, in the Isle of Ely, spondents; and to receive evidence of a certain written agreement which had been tendered for the appellants at the trial of the appeal at the last October sessions for the Isle of Ely, and rejected. It appeared by the affidavit in support of the application, that, the continuances peal: but where an objection has been made, the reception of a particular piece of evi dence, and the held such ob consequence of which the respondents having proved a primâ facie settlement, sessions have be an agreement by both parties, it was signed by the Flanagan now proposed to shew from authorities that the agreement ought not to have been rejected. [Lord Denman C. J. Suppose the sessions have made a mistake, but have refused to take the opinion of this Court on appeal has been dismissed, this interfere, unless the sessions send up a case. 1833. The KING against The Inhabit ants of FRIESTON. on this question: can we interfere?] The Court has interfered in such cases, without any application from the sessions. Rex v. The Justices of Wiltshire (a), Rex v. The Justices of Lancashire (b), Rex v. The Justices of Gloucestershire (c). In the last-mentioned case the appeal had been partly gone into, when an objection was taken, upon which the sessions dismissed the case. Lord Tenterden there said, "I think that the appeal was not heard, and that the grounds of refusal were insufficient;" and Bayley J. observed, "It is true there is here the form and ceremony of hearing a witness, but then an objection is taken, which is in fact a preliminary one, and goes to prevent the Court from exercising any jurisdiction." Here the objection was one which prevented the merits of the appeal from being gone into, and it cannot be contended that the sessions, having dismissed an appeal on such a ground, may exclude the interference of this Court, by refusing a case. Lord DENMAN C. J. In the present instance the appeal was, in fact, heard. It is said the justices were mistaken in their decision; but if they were, they are the judges of the law, and we cannot grant a new trial. The cases where this Court has interfered have turned upon matters of preliminary practice, and have arisen where the Court thought the practice not, in its own nature, legal, or not consistent with the rules by which the sessions themselves professed to be guided. The present objection was not a preliminary one, in the sense in which that word was used in one of the cases referred to: it was indeed preliminary to the reception of a (a) 10 East, 404. (b) 7 B. & C. 691. (c) 1 B. & Ad. 1. particular particular piece of evidence; but where there is merely TAUNTON J. (a) I am of the same opinion. This is not one of the cases where the sessions have refused to hear and this Court has therefore granted a mandamus. Here the sessions have refused to admit a piece of evidence, erroneously, as it is said; but, at all events, they have heard the appeal, and they have not sent up a case. PATTESON J. It cannot be contended that if the sessions have merely given a wrong judgment on a point of evidence, this Court can review it without a case being sent up. It is true that, where they have dismissed an appeal on a preliminary objection, this Court may overrule their decision; but the objection here, though it was preliminary to the admission of certain evidence, was not preliminary to the hearing of the case. There is no instance in which the Court has granted a mandamus under such circumstances. Rule refused (b). (a) Parke J. having been appointed a member of his Majesty's Privy Council, was sitting on the Judicial Committee of that body, constituted by stat. 3 & 4 W, 4. c. 41. s. 1. (b) See Rer v. The Justices of the West Riding of Yorkshire, post. 1833. The KING against The Inhabitants of FRIESTON. |