justice and public spirit, are sometimes made the engines of private spite and enmity. For this however the law has given a very adequate remedy dience to an order made under colour, but not within the scope of military authority, 4. Taun. 67. although the imprisonment be followed by a trial by a court-martial. Ib. 5 2dly. It is necessary that the prosecution should have been carried on without any probable cause, before an action can be brought against the prosecutor. 3 Dow. Rep. 160. It is a mixed proposition of law and fact, whether there was probable cause, and whether the circumstances, alleged to shew it probable, are true, and existed as inatter of fact But whether or not, supposing them to be true, they amount to a probable cause, is a question of law. 1 T. R. 520 534. Bul. N. P. 14 4 Burr 1974. 2 Bar. & C. 693. 4 Dow. & R. 107. 1 Carr. Rep. 138. 204. 1 Gow, Rep. 20. Therefore in the case of Reynolds v. Kennedy, 1 Wils. 232. Cro. Jac. 194. where it appeared upon the face of the pleadings, that the plaintiff had been convicted of the of fence imputed to him, before an inferior tribunal, although that sentence was afterwards reversed on appeal to a higher court of judicature, the court in an action for a malicious prosecution of such charge, in a writ of error, decided that the inferior tribunal having given judgment against the present plaintiff in point of law, there was probable cause, and therefore the action could not be supported. 1 Camp. C. N. P. 202 204. 9 East. 361. 3 Wils. 187, 8. It is no answer to an action for a malicious prosecution, that the defendant was encouraged in what he did by the opinion of counsel, if the statement of facts was incorrect, or the opinion ill founded 5 Taunt. 277. 2 B. & C. 693. 4 Dowl. & R. 107. 1 Carr. 204. In an action against a magistrate for a malicious conviction, it is not sufficient to shew that the plaintiff was innocent of the offence of which he was convicted, but he must also prove from what passed before the magistrate, that there was a want of probable cause. 1 Marsh. 220. 5 Taunt. 580 S. C. 3dly, Malice also is essential to the support of this action; it is not, however, necessary in all cases for the plaintiff to prove by positive evidence, that the defendant was actuated by malice, but he may establish it by inference or collateral proof, and the plaintiff having established want of probable cause, malice may thence be implied. 1 T R. 455. 518. 9 East, 361. 1 Camp. 202. 204. Willes, 520. Malice is not to be inferred from the mere proof of the plaintiff's acquittal for want of the prosecutor's appearing when called, 9 East, 361 or from proof that the bill was returned not found. 1 Marsh. 12. 5 Taunt. 187; but see 4 Bar. & Cres. 24. Thedefendant, however, may repel this presumptive evidence, by shewing sufficient grounds for suspicion in point of fact, or to induce him to suspect the guilt of the party accused. Cro. Jac. 193. Selw. N. P. 105. 1 Rol Ab. 113. Gilb L & E 189. 3 Dow R 160. 4th. Damage is essential to the support of almost all civil actions it appears from the case of Jones v. Gwynne, Gilb. L. & E. 185. 202, and that of Saville v. Roberts, 12 Mod 208. Stra. 977. that there are three descriptions of damages, either of which is sufficient to support an action, but one of them must be proved or the action will fail. 5 Taunt. 187. 1 Marsh. 12. 9 East, 361. viz. Ist To the person by imprisonment.-2d. To the reputation by scandal.—Sd. To the property by expense. 1st. To the Person by Imprisonment.-1st. Whenever imprisonment is occasioned by a malicious unfounded criminal prosecution, it is a sufficient damage to support an action, although the detention might have been momentary, and the party released on bail 2d. To the Reputation by Scandal.-Most criminal prosecutions charge the party accused with some breach of moral duty, and though, as observed by chief justice Holt, Hob. 266., when the court in which the proceeding is adopted has sufficient jurisdiction over the subject matter, the unfounded proceeding cannot be treated as a libel in respect to the maxim executio juris non habit injuriam; yet the party defamed may proceed by action for the maliciously preferring such charge. Any charge which would be a libel if not preferred by the course of legal proceeding, may be considered as sufficiently defamatory to enable the party to support an action for malicious prosecution. But an indictment for a mere trespass as an assault, does not sufficiently scandalize the party accused to enable him, on the ground of injury to his reputation, to support an action. 12 Mod. 210. Gilb. C. L. & E. 202. 2 B & A. 494 3 Dow & R. 669. 3dly. To the Property by Expenses.-Injury to property by expense is sufficient ground for supporting an action. Jones v. Gwynne, Gilb. L. & E. 185. 202. As prosecutions must be carried on for the benefit of the public, and no one would be induced to pursue an offender for a criminal charge, if he were liable to an action, on an acquittal, the courts in general discharge actions for malicious prosecutions, unless the malice of the prosecutor, as well as the innocence of the party accused, be obvious; and in case of indictments for felonies they will not afford the defendant a copy of the indictment, without which a civil action cannot be supported, unless in the opinion of the court the prosecution appeared to be malicious. 1 T. R. 518. Ĉarth. 421. 1 Ld Raym. 253. Ante, 1 Book, 385 14 East, 302 305. But in an action for a malicious prosecution for a misdemeanor, the party need not produce a copy of the indictment. Bla. Rep. 385. The remedy for a malicious prosecution of regular proceedings, is invariably an action on the case, and trespass cannot be sustained, Hob 260. So if a magistrate issue a warrant without information on oath, when the action cannot be trespass. 2 T. R. 255. and the proper plea is the general issue, 3 Mod. 166. ; and every matter of defence, except the general issue, may be given in evidence, under such plea, though it is otherwise in an action for words. Willes, 20. Malicious proceedings of a civil nature are by malicious arrest, issuing a commission of bank in damages, either by an action of conspiracy, (y) which cannot be brought but against two at the least; or, which is the more usual way, by a special y Finch L. 805. ruptcy, &c. It seems before the statutes entitling the defendant in civil actions to costs, if the suit terminated in his favour, he might support an action against the plaintiff, if the proceeding was malicious and without probable cause. Co. Lit. 161. n. 4. a. b. c. 162 (a) 3 Lev. 210. 2 Wils. 505. Styles, 379. Hob. 266. 4 Mod. 13, 4. But since the statute, 4 Ja. I. c. 3, which gives costs to a defendant in all actions in case of a nonsuit or verdict against the plaintiff, and other statutes giving costs to defendant in other stages of the cause, it seems that no action can be supported merely in respect of a civil suit maliciously instituted, except in some cases under particular legislative provisions, 1 Salk. 14. and therefore no action is sustainable for a vexatious ejectment. 1 B. & P. 205. But when the plaintiff in a civil action has maliciously adopted a step not absolutely necessary for the ascertainment of his right, as in the case of an unfounded arrest, or an arrest for too large a sum. 1 Lev. 275. or on one side of an account. 3 B. & C. 159. (in any of which cases he might have proceeded in common process), the party injured by such arrest may support aa action. 2 Wils. 305. As it is necessary the avenues of justice should not be narrowed, the courts do not encourage actions for malicious suits, 2 Wils. 307.; but as a civil suit is not like a criminal prosecution, carried on for the benefit of the public, less favour and indulgence is to be shewn to a plaintiff who maliciously arrests another, than to the prosecutor of an indictment. In order to sustain such action, four points must occur, viz. 1st, Falsehood in the demand. 2d. Want of probable cause. 3d. Malice in the defendant. 4th. Damage by arrest or imprisonment. 1st. Falsehood in the Demand.-1st. With regard to the falsehood in the demand, the rules applicable to a criminal proceeding, equally affect a civil suit. 1 Salk. 1516. 2 T. R. 225. 1 Esp. Rep. 79. 14 East, 302. Selw. 106 2. If there be a set off reducing the plaintiff's demand, his maliciously inserting on one side of the account is actionable. 3 B. & C. 139. The suit must have been decided by some legal means, before an action for a malicious action can be com menced. 1 Esp. R. 80. 2dly. Want of probable cause also, as in criminal proceedings, is necessary, and the same rules prevail with regard to it. And though in point of fact an action may turn out to be unfounded, yet if there were reasonable ground to apprehend that the sum for which the party was arrested was due, no action can be supported. 3 Esp. R. 34 Where A. arrested B. upon the advice of his special pleader, that he had a good cause of action, but afterwards discontinued on being ruled to declare, and B. brought an action for a malicious arrest, without any reasonable or probable cause, it was held, that the reasonableness or probability of the cause was a mixed question of law and fact for the jury to decide; and that, if they believed the defendant acted bona fide upon the advice he had received, he was entitled to a verdict, but if otherwise, they ought to find for the plaintiff. 2 B. & C. 693. 4 Dow. & R. 107. 1 Carr. 204. 3dly. Malice in the Defendant.-Malice also is an essential requisite to the support of this action, and it is not sufficient to prove that the writ was sued out, or the arrest made, after this payment of the debt, but express malice must in such case be proved. 1 Bos. & P. 388. 2 B. & P. 129. 3 East, 314.; and in a late case, where a writ was issued by mistake against the son instead of the father, and he was imprisoned four days, Ch. J. Abbott held, that as there was no evidence of malice the action was not sustainable. Guildhall, Oct. 1825. In ordinary cases, however, want of probable cause being proved, malice (as in criminal prosecutions) may be implied; ante, page 42. n (a) 1 T. R. 545. 518. 9 East, 361. 1 Camp. C. N. P. 202 4. 3 Camp. 139. The merely not proceeding with an action is not sufficient evidence of malice, 4 Taunt. 7.; or neg. lecting to countermand the writ after the debt has been paid, by which plaintiff was arrest ed, 1 Bos. & Pul. 388., especially if the facts preclude any inference of malice. 2 Bos. & Pul. 129. But where A. arrested B. on an affidavit of debt for money paid to his use, but did not declare antil ruled so to do, and soon afterwards discontinued the action and paid the costs, held that this was sufficient prima facie evidence of malice, and the absence of probable cause to support an action for a malicious arrest 4 B. & C. 21. 4thly. With respect to the damage necessary to the support of this action, it has already been observed, that as a defendant is entitled to costs, his pecuniary interest is not, in legal consideration, affected by a civil action, though indeed the costs allowed are rarely equal to the expenditu e incurred by a defence. His character also, as we have already seen, is not affected, and the imprisonment of his person is therefore the only legal damage which entitles him to compensation. But in some instances the court have power to interfere in a summary way to compel the plaintiff to make compensation. 3 Bos. & P. 115 Co. Litt. 161. b. in notes. By a late statute, 43 Geo. III. c. 46. s. 3. 3 B. & P. 115. if the plaintiff in an action do not recover the amount of the sum for which he arrested the defendant, though he obtain a verdict, the defendant is entitled to his costs, if it appear to the satisfaction of the court upon a summary application, supported by affidavit, that plaintiff had not reasonable cause for obtaining the defendant to be arrested for the whole amount. An action on the case may also be supported for maliciously issuing a commission of bankruptcy, notwithstanding the specific remedy provideă action on the case for a false and malicious prosecution. (z) In order to carry on the former (which gives a recompense for the danger to which the party has been exposed) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecutions for felony it is usual to deny a copy of the indictment, where there is any, the least, probable cause to found such prosecution upon. (a) For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. But an action on the case for a malicious prosecution may be founded upon an indictment [127] whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. (b) However, any probable cause for preferring it is sufficient to justify the defendant. 22 II. We are next to consider the violation of the right of personal liberty." This is effected by the injury of false imprisonment, for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party; as well by removing theactual confinement for the present, as, after it is over, by subjecting the wrongdoer to a civil action, on account of the damage sustained by the loss of time and liberty. To constitute the injury of false imprisonment there are two points requisite 1. The detention of the person: and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a-private house, or in the stocks, or even by forcibly detaining one in the public streets. (c) Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority; which authority may arise either from some process from the courts of justice, or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment; (d) or from some other special cause warranted, for the necessity of z F. N. B. 116. a Carth. 241. Lord Raym. 253. b 10 Mod. 219, 220, Stra. 691. d 2 Inst. 46. by the bankrupt laws. 1 Book, ante, 427, Willes, 581. 2 Wils. 146. 3 Campb. 58. So also if the plaintiff in an action adopt an irregular proceeding, as issuing a second fi. fa. pending the first, Hob. 205. 266. 1 Brown. 12. So if a plaintiff is bound to accept from a defendant in custody under a ca. sa., the debt and costs, when tendered, in satisfaction of his debt, and to sign an authority to the sheriff to discharge the defendant out of custody, and an action on the case will be against a plaintiff for having maliciously refused so to do. And the refusal to sign the discharge is sufficient prima facie evidence of malice, in the absence of circumstance to rebut the presumption. 4 B. & C. 26. Chitty. (22) The injuries to the right of liberty consist of any illegal restraint of a person contrary to his will, as the confinement in a prison or private house, or in the stocks, or by forcible detention in the street, or by a peace-officer touching another by way of arrest. Bac. Ab. tit. Trespass, D. 3. 1 Esp. N. P. 526. Simpson v. Hill. 1 Esp. Rep. 431. But the merely giving charge of a person to a peace-officer, not followed by any actual apprehension of the person, does not amount to an imprisonment, though the party to avoid it attend at a police office, 1 Esp. Rep. 431. 2 New. Rep. 211.; and in Gardner v. Wedd, and others, Easter Term 1825, on a motion for a new trial, the court of common pleas held that the lifting up a person in his chair, and carrying him out of the room, in which he was sitting with others, and excluding him from the room, was not a false imprisonment, so as to entitle the plaintiff to a verdict on a count for false imprisonment. The circumstance of an imprisonment being committed under a mistake constitutes no excuse. 3 Wils. 309. And it has been decided, that if A. tell an officer who has a warrant against B., that his (A.'s) name is B., and thereupon the officer arrests A., it is false imprisonment, Moore, 457. Hard. 323.; but see 3 Camp. 108.; and this doctrine was overruled in a late case on the western circuit, on the principle volenti non fit injuriam, and that such a fraud upon legal proceedings cannot give a right of action. Chitty. 14 VOL. II. the thing, either by common law, or act of parliament; such as the arrest. ing of a felon by a private person without warrant, the impressing of mari. ners for the public service, or the apprehending of waggoners for misbeha viour in the public highways. (e) False imprisonment also may arise [128] by executing a lawful warrant or process at an unlawful time, as on a Sunday (f) for the statute hath declared, that such service or process shall be void. This is the injury, Let us next see the remedy: which is of two sorts; the one removing the injury, the other making satisfaction for it. The means of removing the actual injury of false imprisonment are fourfold. 1. By writ of mainprize. 2. By writ de odio et atia. 3. By writ de homine replegiando. 4. By writ of habeas corpus. 1. The writ of mainprize, manucaptio, is a writ directed to the sheriff (either generally, when any man is imprisoned for a bailable offence, and bail hath been refused; or specially, when the offence or cause of commitment is not properly bailable below), commanding him to take sureties for the prisoner's appearance, usually called mainpernors, and to set him at large. (g) Mainpernors differ from bail, in that a man's bail may imprison or surrender him up before the stipulated day of appearance; mainpernors can do neither, but are barely sureties for his appearance at the day : bail are only sureties, that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce him to answer all charges whatsoever. (h) 2. The writ de odio et atia was anciently used to be directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause of suspicion, or merely propter odium et atiam, for hatred and ill-will; and if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail. This writ, according to Bracton, (i) ought not to be denied to any man, it being expressly ordered to be made out gratis, without any de. nial, by magna carta, c. 26. and statute West. 2. 13 Edw. I. c. But the statute of Gloucester, 6 Edw. I. c. 9. restrained it in the case of killing by misadventure or self-defence, and the statute 28 Edw. III. c. 9. abolished it in all cases whatsoever but as the sta tute 42 Edw. III. c. 1. repealed all statutes then in being, contrary to the great charter, sir Edward Coke is of opinion (k) that the writ de odio et atia was thereby revived. [129] 29. 3. The writ de homine replegiando (1) lies to replevy a man out of prison, or out of the custody of any private person (in the same manner that chattels taken in distress may be replevied, of which in the next chapter), upon giving security to the sheriff that the man shall be forthcoming to an swer any charge against him. And if the person be conveyed out of the sheriff's jurisdiction, the sheriff may return that he is eloigned, elongatus; upon which a process issues (called a capias in withernam) to imprison the defendant himself, without bail or mainprize, (m) till he produces the party. But this writ is guarded with so many exceptions, (n) that it is not an ef e Stat. 13 Geo. III. c. 78. f Stat. 29 Car. II. c. 7. Salk. 78. 5 Mod. 95. m Raym. 474. i l. 3. tr. 2. c. 8. n Nisi captus est per speciale præceptum nostrum, vel capitalis justitiarii nostri, vel pro morte hominis, vel pro foresta nostra, vel pro aliquo alio retto, quare secundum consuetudinem Angliae non sit replegiabiis. (Registr. 77.) (23) But the statute has excepted cases of treason, felony, and breach of the peace, in which the execution of a lawful warrant or process is allowed upon a Sunday. fectual remedy in numerous instances, especially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every case hath almost entirely antiquated them; and hath caused a general recourse to be had, in behalf of persons aggrieved by illegal imprisonment, to 24 4. The writ of habeas corpus, the most celebrated writ in the English law. Of this there are various kinds made use of by the courts at Westmin. ster, for removing prisoners from one court into another for the more easy administration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner, and charge him with this new action in the court above. (o) Such is that ad satisfa ciendum, when a prisoner hath had judgment against him in an ac- [130] tion, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution. (p) Such also are those ad prosequendum testificandum, deliberandum, &c.; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was committed. Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster-hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer (whence the writ is frequently denominated an habeas corpus cum causa) to do and receive whatsoever the king's court shall consider in that behalf. This is a writ grantable of common right, without any motion in court, (q) and it instantly supersedes all proceedings in the court below. But in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 & 2 P. & M. c. 13. that no habeas corpus shall issue to remove any prisoner out of any gaol, unless signed by some judge of the court out of which it is awarded. And to avoid vexatious delays by removal of frivolous causes, it is enacted by statute 21 Jac. I. c. 23. that, where the judge of an inferior court of record is a barrister of three years standing, no cause shall be removed from thence by habeas corpus or other writ, after issue or demurrer deliberately joined that no cause, if once remanded to the inferior court by writ of procedendo or otherwise, shall ever afterwards be again removed; and that no cause shall be removed at all, if the debt or damages laid in the declaration do not amount to the sum of five pounds. But an expedient (r) having been found out to elude the latter branch of the statute, by procuring a nominal plaintiff to bring another action for five pounds or upwards (and then by the course of the court, the habeas corpus removed both actions together,) it [131] is therefore enacted by statute 12 Geo. I. c. 29. that the inferior court may proceed in such actions as are under the value of five pounds, notwithstanding other actions may be brought against the same defendant to a greater amount. And by statute 19 Geo. III. c. 70. no cause, under the value of ten pounds, shall be removed by habeas corpus, or otherwise, into any superior court, unless the defendant so removing the same, shall give special bail for payment of the debt and costs. o 2 Mod. 198. q 2 Mod. 306, p 2 Lilly prac. reg. 4. Bohun. instit, legal. 85. edit. 1708. (24) By the 44 Geo. III. c. 102. any of the judges of England or Ireland may award a writ of habeas corpus ad testificandum to bring a prisoner detained in any gaol to be examined as a witness in any court of record, or sitting at nisi prius. Christian. |