nagnatum, are held to be still more heinous (h): and though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury; *which is redressed by an action [*124) ɔn the case founded on many ancient statutes (i); as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained (10). Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man (k). It is said, that formerly no actions were brought for words, unless the slander was such as (if true) would endanger the life of the object of it (1). But too great encouragement being given by this lenity to false and malicious slanderers, it is now held that for scandalous words of the several species before-mentioned, (that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate or one in public trust), an action on the case may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod. As if I say that such a clergyman is a bastard, he cannot for this bring any action against me, unless he can shew some special loss by it; in which case he may bring his action against me, for saying he was a bastard, per quod he lost the presentation to such a liv (h) 1 Ventr. 60. (1) Westm. 1. 3 Edw. I. c. 34. 2 Ric. II. c. 5. 12 Ric. II. c. 11. the former being more deliberate, more capaole of extensive circulation, and more permanent in its injurious consequences, than the .atter. 2 East, 430. Hard. 470-2. Burr. 980. Fitzg. 253. Another distinction between them is, that written slander is indict able, as tending to a breach of the peace, whereas verbal is not indictable, unless against a magistrate in the execution of his office. And. 384. 1 Stra. 420. 2 Stra. 1157. Salk. 689. 698. Holt's Law of Lib. 169. and cases there referred to, Holt's Rep. 654; or calculated to provoke a person to fight a duel. So, with regard to the statute of limitations, an action for words, actionable in themselves, is not sustainable after two years have elapsed, 21 Jac. I. c. 16; but the remedy for a libel is not thereby affected, and may be brought within six years. With respect to the remedies for words and libels, an action on the case is the general remedy, the writ of conspiracy having grown obsolete. 1 Saund. 228. i Stra. 193. Co. Lit. 161. a. n. 4. As to SLANDER OF TITLE, see in general Vin. Ab. Slander of Title, pl. 16. 2 B. & C. 486. The slander is actionable if a malicious motive be proved. Burr. 2422. But to say tha a vender cannot make a good title, believing at the same time that he cannot, from a supposed forfeiture of the estate, is not actionable. 3 aunt 246. See also 1 M. & S. 01. 639. 644. But a stranger who justifies (k) Lord Raym. 1369. a publication defamatory of another's title, under the party claiming title, must shew that it was made by his authority. 1 M. & S. 304. No action will lie when the slanderer prevents the sale of the land by asserting a claim in himself, though unfounded, unless it be knowingly bottomed in fraud, as, upon an instrument which the claimant knows to be forged, and it is so averred in the declaration, and proved on the trial. 4 Rep. 18. (10) This action or public prosecution, (for it partakes of both), for scandalum magnatum, is totally different from the action of slander in the case of common persons. The scanda lum magnatum is reduced to no rule or certain definition, but it may be whatever the courts in their discretion shall judge to be derogatory to the high character of the person of whom it is spoken; as it was held to be scandalum magnatum, to say of a peer, "he was no more to be valued than a dog;" which words would have been perfectly harmless if uttered of any inferior person. Bull. N. P. 4. This action is now seldom resorted to. By the twe first statutes upon which it is founded, (3 Ed. I. c. 34. and 2 R. II. st. 2. c. 5.), the defendant may be imprisoned till he produces the first author of the scandal; hence probably is the origin of the vulgar notion that a person who has propagated slander may be compelled to give up his author. ing (m). In like manner to slander another man's utte, by spreading such injurious reports, as, if true, would deprive him of his estate, (as to call the issue in tail, or one who hath land by descent, a bastard), is actionable, provided any special damage accrues to the proprietor thereby as if he loses an opportunity of selling the land (n). But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action. So [*125] scandals, which concern matters merely spiritual, as to call a *man he etic or adulterer, are cognizable only in the ecclesiastical court (o); unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call a man a rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species before-mentioned, are not actionable: neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill-will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander (p). Neither (as was formerly hinted) (q) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander (r). Also if the defendant be able to justify, and prove the words to be true, no action will lie (s), even though special damage hath ensued: for then it is no slander or false tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions : for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law (t): eum qui nocentem infamat, non est aequum et bonum ob eam rem ondemnari; delicta enim nocentium nota esse oportet et expedit." 66 A second way of affecting a man's reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous (u) light, and thereby diminishes his reputation. With regard to libels in general, there are, as in many other cases, two remedies; one by indictment, and the other by action. The former for the public offence ; for every libel has a tendency to the breach of the peace, by provoking the person libelled to break it: which offence is the same (in point [*126] of law) whether *the matter contained be true or false; and there fore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification (w) (11). But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and shew that the plaintiff has received no injury at all (x). What was said with regard to words spoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon (12): but as to signs or pictures, it seems necessary always to shew, by proper innuendos and averments of the de (m) 4 Rep. 17. 1 Lev. 248. (n) Cro. Jac. 213. Cro. Eliz. 197. (0) Noy. 64. 1 Freem. 277. (p, Finch. L. 186. 1. Lev. 82 Cro. Jac. 91. (g) Page 29. (r) Dyer, 285. Cro. Jac. 90. (11) In New-York he may show that the publication was true, and was made with good motives and for justifiable ends (s) 4 Rep. 13 (t) Ff. 47. 10. 18. (u) 2 Show. 314. 11 Mod. 99 (z) Hob. 53. 11 Mod. 99. (12) But see the distinction that written slander is actionable when verba ir no ante. note (9) tendant's ineaning, the import and application of the scandal, and tha. some special damage has followed (13); otherwise it cannot appear, that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable consequences. A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him (14); which, under the (13) To support an action for a libellous sign or picture, the learned judge says, it is necessary to show, that some special damage has followed; but there is no ground for this opinion, and a picture intending to make any one ridiculous is equally actionable as if the same effect had been produced by any other mode of publication, though no damage can be proved. See note (10) ante. (14) Malicious prosecutions are of a criminal or civil nature. To enable a party aggrieved to support an action for a criminal prosecution, four circumstances must occur. Gilb. L. & E. 185. 12 Mod. 208. 1 T. R. 493 to 551. 1st. Falsehood in the charge. they amount to a probable cause, is a question 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 2d. Want of probable cause for instituting it. appearing when called, 9 East, 361. or from 3d. Malice in the prosecutor. 4th. Damage to the accused party. 1st. It is essential that the falsehood of the charge should have been substantiated by a verdict, or the decision of the court in which it is instituted, or by the proceedings having been otherwise legally determined, before the party aggrieved commence his action for the injury sustained. 2 T. R. 225. 1 Saund. 228. Bul. N. P. 11. Esp. Rep. 79. Dougl. 215. Yelv. 116. Hob. 267. A husband alone may maintain an action for a malicious prosecution of his wife, the expenses of which have been defrayed by him. Stra. 977. Ca. Temp. Hardw. 54. And the action will lie, although the plaintiff has been acquitted on a defect in the indictment, the subject matter of which did not affect his reputation, 4 T. R. 247. Stra. 691, or for the malicious prosecution of a bad indictment for perjury. 5 B. & A. 634. 1 Dow. & Ry. 266. An action on the case hes for maliciously obtaining or executing a warrant to search a house for smuggled goods, where none such are found. 1 T. R. 535. n. 1 Dowl. & R. 97. 2 Chitty R. 304. So a naval officer accused of neglect of duty, &c. by his commander, and tried by court-martial, though honourably acquitted, cannot maintain an action for a malicious prosecution against such commander. 1 T. R. 493. 1 Bro. P. C. 76 But an action of trespass lies for an inferior against his superior military officer (both being under martial law), who imprisons him for disobedience to an order made under colour, but not within the scope of military authority, 4 Taun. 67. although the imprisonment De followed by a trial by a court-martial. Ib. 2dly. It is necessary that the prosecution should have been carried on without 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 .here was probable cause, and whether the circumstances, alleged to shew it probable, are true, and existed as matter of fact. But whether or not, supposing them to be true, proof that the bill was returned not found. 1 Marsh. 12. 5 Taunt. 187; but see 4 Bar. & Cres. 24. The defendant, however, may repel this presumptive evidence, by shewing suffi. cient 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. I 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 sup port an action, but one of them must be proved or the action will fail. 5 Taunt. 187. 1 Marsh 12. 9 East, 361. viz. 1st. To the person by im prisonment.-2d. To the reputation by scan· dal.-3d. To the property by expense. 1st. To the Person by Imprisonment.—1st Whenever imprisonment is occasioned by malicious unfounded criminal prosecution, it is a sufficient damage to support an action, al though 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 can. not 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 pre ferred in 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 no sufficiently scandalize the party accused enable him, on the ground of injury to his reputation, to support an action. 12 Mod 210 mask of justice and public spirit, are sometimes made the engines of pr. vate spite and enmity. For this however the law has given a very ade Galb. 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 acions for malicious prosecutions, unless the malice of the prosecutor, as well as the innocence of the party accused, be obvious; and in case of iudictments 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. T. R. 518. Carth. 421. 1 Ld. Raym. 253. Ante, 1 book, 385. 14 East, 302. 305. 1 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. 266. 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 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 bankruptcy, &c. It seems before the statutes entitling the defendant in civil actions to costs, it the suit terminated in his favour, he might support an action against the plaintiff, if the proceeding was malicious and without probable cause. Co. Litt. 161. n. 4. a. b. c. 162. (a.) 3 Lev. 210. 2 Wils. 305. 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 ascer lainment of his nigu, as in the case of an unfounded arrest, or an arrest for two large a sum, I Lev. 275. or on one side of an account. 3 B. & C. 139. (in any of which cases he might have proceeded in common process), the party injured by such arrest may support an action. 2 Wils. 305. As it is necessary the avenues af 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 arresta another, than to the prosecutor of an indictment. In order to sustain such action, four points must occur, viz. 1st. Falsehood in the demand. 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. I 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 only 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 cominenced. 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 plead er, that he had a good cause of action, but af terwards 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. i 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 the 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 Campb. 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 neglecting to countermand the writ after the debt has been paid, by which plaintiff was arrested, 1 Bos. & Pul. 388, especially if the facts preclude any interference 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 un'il ruled se to do and soon afterwards discontin red he action quate remedy 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 action on the case for a false and malicious prose cution (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 ac quittal; but, in prosecutions for felony, it is usual to deny a copy of he 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 mali- [*127] cious prosecution may be founded upon an indictment, 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. II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment (15), 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 the actual confinement for the present, as, after it is over, by subjecting the wrong (y) Finch. L. 305. (z) F. N. B. 116. 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 sonsideration, affected by a civil action, though indeed the costs allowed are rarely equal to the expenditure 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. 3 By a late statute, 43 Geo. III. c. 46. s. 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 obaining the defendant o oe 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 provided 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 proeeeding, as issuing a second fi. fa. pending be first, Hob. 205, 266 1 Browl. 12. VOL 11 So a 16 (a) Carth. 421. Lord. Raym. 253 plaintiff is bound to accept from a defendant in And (15) 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 ver. dict 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 imprisor.ment, Moore, 457. Hard. 323; but see 3 Can.. 108; and this doctrine was overruled in a late case on the western circuit, on the principle volenti non fi injuriam, and that such a fraud upon legal proceedings cannot zive a light oʻ action. |