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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 æquum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit."

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 diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies: one by indictment, and another 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 of law) whether the matter contained be true or [*126] false; and therefore 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 show 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: but as to signs or pictures, it seems necessary always to shew, by proper inuendos and averments of the defendant's meaning, the import and application of the scandal, and that some special damage has followed; (12) 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 ; (13) which, under the mask (u) 2 Show. 314. 11 Mod. 99. (w) 5 Rep. 125.

(t) Ff. 47, 10, 18.

(x) Hob. 253. 11 Mod. 99.

(11) But now by statute 6 and 7 Vic. c. 96, the defendant in any indictment or information for bel may plead the truth of the matters charged, and also that it was for the public benefit that the same should be published; and this plea, if sustained, constitutes a good defence, but if not sustained, the court may, in pronouncing sentence, consider whether the guilt of the defendant was aggravated or mitigated by the plea.

In the United States, by constitutional or statutory provisions, the truth is made a defence to a criminal prosecution, if published with good motives and for justifiable ends.

(12) [To support an action for a libellous sign or picture, the learned judge says, it is neces sary 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.]

(13) [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. and E.

185; 12 Mod. 208; 1 T. R 493 to 551.

1. Falsehood in the charge.

2. Want of probable cause for instituting it.

3. Malice in the prosecutor.

4. Damage to the accused party.

1. 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; 1 Esp. Rep. 79; Dougl. 215; Yelv. 116; Hob. 267.

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 there was probable cause, and whether the circumstances, alleged to show it probable, are true, and existed as a matter 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; 5 Bul. N. P. 14; 4 Burr. 1974; 2 Bar. and C. 693; 5 Dow. and R. 107.

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 estab lished 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. and 81

VOL. II.-11

of 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 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

(y) Finch, L. 305.

Cres. 24. The defendant, however, may repel this presumptive evidence, by showing 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; 1 Rol. Ab. 113; Gilb. L. and E. 189; 3 Dow. R. 160.

4th. Damage. 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, viz.: 1st. To the person by imprisonment. 2d. To the reputation by scandal. 3d. 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 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 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. and E. 202; 2 B. and A. 494; 3 Dów. and R. 669.

3dly. To the property by expenses is sufficient ground for supporting an action. Jones . Gwynne, Gilb. L. and E. 185, 202.

The remedy for a malicious prosecution of regular proceedings, is invariably an action on the case, and trespass cannot be sustained. Hob. 266.

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 if the suit terminated in his favor, 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. 14. But since the statute, 4 Jac. 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 sus tainable for a vexatious ejectment. 1 B. and P. 305. 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. and 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 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 favor and indulgence is to be shown to a plaintiff who maliciously arrests another, than to the prosecutors of an indictment. In order to sustain such action, four points must concur, viz:

1. Falsehood in the demand.

2. Want of probable cause. 3. Malice in the defendant.

4. Damage by arrest or imprisonment.

1. 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. If there be a set-off reducing the plaintiff's demand, his maliciously inserting only one side of the account is actionable. 3 B. and C. 139. The suit must have been decided by some legal means, before an action for a malicious action can be commenced. 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 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, it they believed the defendant acted bona fide upon the advice he had received, he was entitled to a

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) iis neces ary 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, whereon no acquittal can be had; as if it be rejected [*127 ] 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, (14) 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-doer 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 the thing, either by common law, or act of parlia ment; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of waggoners for misbehaviour in the public highways. (e) False imprisonment

(z) F. N. B. 116. (c) 2 Inst. 559.

(b) 10 Mod. 219, 220. Stra. 691. (e) Stat. 13 Geo. III, c. 78.

(a) Carth. 421. Lord Raym. 253. (d) Ibid. 52, 591.

verdict, but if otherwise, they ought to find for the plaintiff. 2 B. and C. 693; 4 Dow. and R. 107.

3dly. Malice in the defendant. Malice also is an essential requisite to the support of this action. In ordinary cases, however, want of probable cause being proved, malice (as in criminal prosecutions) may be implied. 1 T. R. 545, 518; 9 East, 361; 3 Camp. 139. See further. 1 Bos. and Pul. 388; 2 id. 129; 4 B. and 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 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. An action on the case may be supported for maliciously issuing a commission of bankruptcy, notwithstanding the specific remedy provided by the bankrupt laws. 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. Hop. 205, 266; 1 Brownl. 12. So 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 lie 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 circumstances to rebut the presumption. 4 B. and C. 26.]

(14) [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. The circumstance of an imprisonment being committed under a mistake constitutes no excuse. 3 Wils. 309.]

As to false imprisonment, see 1 Hill. on Torts, 231, et. seq. Addison on Torts, ch. 12 §§ 2 and 3.

also may arise by executing a lawful warrant or process at an *unlawful [*128] time, as on a Sunday; (7) for the statute hath declared, that such service or process shall be void. (15) 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 of 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 denial, by magna carta, c. 26, and statute West. 2, 13 Edw. I, c. 29. But the statute of Gloucester, b [*129] Edw. I, c. 9, restrained it in the case of killing by misadventure or selfdefence, and the statute 28 Edw. III, c. 9, abolished it in all cases whatsoever: but as the statute 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.

3. The writ de homine replegiando (1) lies to replevy a man out of prison of 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 answer 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 effectual 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

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 Westminster, 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

(f) Stat. 29 Car. II, c. 7. Salk. 78. 5 Mod. 95.

(m) Raym. 474.

(i) L. 3, tr, 2, c. 8.

(k) 2 Inst. 43, 55, 315

(g) F. N. B. 250. 1 Hal. P. C. 141. Coke on Bail and Mainp. ch. 10. (h) Coke on Bail and Mainp. ch. 3. 4 Inst. 179. (1) F. N. B. 66. (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 consutudinem Angliæ non sit replegiabilis. Registr. 77.

(15) [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.]

the court above. (0) Such is that ad satisfaciendum, when a prisoner hath *had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of [*130] 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 Westminsterhall, 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 and 2 P. and 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 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 [*131] 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.

But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipien dum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. (s) This is a high prerogative writ, and therefore by the common law issuing out of the court of king's bench not only in term-time, but also during the vacation, (f) (16) by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions; for the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, (u) wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereon; (v) unless the term shall intervene, and then it may be returned in court. (w) Indeed, if the party were privileged in the courts of common pleas and exchequer, as being (or supposed to be) an offi

(o) 2 Mod. 198. (p) 2 Lilly Prae, Reg. 4. (r) Bohun. Instit. Legal, 85, edit. 1705.

(g) 2 Mod. 306. (8) St. Trials, viii, 142.

(t) The pluries habeas corpus directed to Berwick in 43 Eliz. (cited Burr. 256), was teste'd die Jovis prox, post quinden' Sancti Martini. It appears, by referring to the dominical letter of that year, that this quindena (Nov. 25) happened that year on a Saturday. The Thursday after was therefore the 30th of November -two days after the expiration of the term. (u) Cro. Jac. 543. (v) Burr. 686.

(w) Ibid. 460, 542, 603.

(16) [See Leonard Watson's Case, 9 Ad. and E. 731.]

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