consists in a comparison of the defendant's goods with the plaintiff's to the disadvantage of the latter, but applies also where the disparaging statement contains no reference to the defendant's goods. The case of Western Counties Manure Company v. Lawes' Chemical Manure Co. (a) no doubt seems to decide the contrary, but that case has been much commented upon (b), and is probably not law.

Where, indeed, the only disparagement of the plaintiff's goods consists in the defendant's vaunting the superiority of his own goods, it has on another ground been doubted whether the action will lie, namely, that of the undesirability of turning the courts of law "into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better" (c). And this reason for refusing to entertain the action. would seem to apply even to a case in which the defendant knew his statement to be untrue.

(a) L. R. 9 Ex. 218.

(b) White v. Mellin, (1895) A. C. 154. (c) Per Lord Herschell, White v. Mellin, supra, p. 164, approving the

judgment of Lord Denman in Evans v. Harlow, 5 Q. B. 624. See too per Lord Shand, White v. Mellin, p. 172.

Wrongfully setting the law in motion.

Nature of damage thereby caused.

CHAPTER XIX.

MALICIOUS PROSECUTION.

It is obviously a grievance that an individual should be harassed by legal proceedings improperly instituted against him. If there is no foundation for them no doubt they will not ultimately succeed, but during their progress they may cause great injury. It is the right of every one to put the law in motion if he does so with the honest intention of protecting his own or the public interest, or if the circumstances are such, be his motives what they may, as to render it probable primâ facie that law is on his side. But it is an abuse of that right to proceed maliciously, and without reasonable and probable cause for anticipating success.

Such an abuse may of necessity be injurious, as involving damage to character, or it may in any particular case bring about damage to person or property. There are, says Lord Holt (a), three sorts of damage to a plaintiff, any one of which is sufficient to support an action of malicious prosecution. "First, damage to his fame if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses." To which may be added the damage which a man suffers when his house is entered and his property seized. Whenever a plaintiff can show that he has suffered under any of these heads of damage by reason of the defendant having wrongfully put the law in motion against him, whether civilly or criminally, he has a remedy. It is true that it is only under exceptional circumstances that a man against whom an unreasonable and malicious civil proceed action has been brought can obtain reparation for the wrong by

Legal damage

seldom results

from abuse of

ings.

(a) Savill v. Roberts, 12 Mod. p. 208.

means of a separate action; this, however, is not because of any
difference in principle between the abuse of civil or criminal
process, but because generally in such a case no damage can be
proved. There is no damage to reputation because "in no
action, at all events in none of the ordinary kind, not even in
those based upon fraud, where there are scandalous allegations
in the pleadings, is damage to a man's fair fame the necessary
and natural consequence of bringing the action. Incidentally
matters connected with the action, such as the publication of the
proceedings in the action, may do a man an injury, but the
bringing of the action is of itself no injury to him. When the
action is tried his fair fame will be cleared if it deserves to be
cleared; if the action is not tried, his fair fame cannot be
assailed in any way by the bringing of the action" (a). Neither
can a man suffer in his person from the mere fact of being sued.
A party may indeed by a special step of procedure cause the
arrest of his debtor, though only, as the law now stands, in very
exceptional circumstances, and if such arrest is malicious an
action lies. Finally, for the expense to which a defendant is put Costs.
he finds as a general rule a sufficient remedy in the law of costs.
"The law 'has provided that no man should prosecute without
finding pledges (b), and that was a security against troublesome
actions; then if the plaintiff's suit be vexatious and groundless
he shall be amerced pro falso clamore; and though these amer-
ciaments be now matter of form, and therefore several Acts of
Parliament have given costs to the defendants, yet we must
judge by the reason of the law as it stood antiently, but in case
of an indictment there is no provision or remedy but by bringing
an action" (c).

prosecution.

It is, therefore, the malicious preferring of an unreasonable Malicious criminal charge that is the usual foundation for the form of action now under consideration; and this is what is ordinarily understood by the familiar title of an action of malicious prosecution. It will be seen that it is to some degree analogous to an

(a) Per Bowen, L.J., Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. D. pp. 689-90.

(b) See for example, 11 Hen. VII. c.

15. This practice is of course now en-
tirely obsolete.

(c) Per Holt, C.J., Savill v. Roberts,
12 Mod. p. 210.

Abuse of process.

Prosecution

on a criminal charge.

action of defamation (a); insomuch as it is in the first place an action for the vindication of character, which is necessarily involved in a criminal charge, and only in the second place for the damage shown to have arisen under the special circumstances of the case.

And as an action lies for malicious words, though not defamatory, if they cause special damage, so there are certain cases, now of infrequent occurrence, in which an action lies for the special damage caused by abuse of legal process where no criminal charge is made, and consequently no question of character is involved.

In an action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious.

1. The term criminal charge includes "all indictments involving either scandal to reputation or the possible loss of liberty to the person" (b). There are, however, many cases in which, though the proceedings follow the forms of the criminal law, they are substantially civil in their nature. No one regards a man convicted on an indictment for the non-repair of a highway as a criminal (c). A moral stigma will inevitably attach where the law visits an offence with imprisonment, but it may attach also where a fine only can be inflicted, as where proceedings are taken against a traveller for attempting to avoid payment of a tramway fare (d). At the same time there are many regulations which the State has laid down for the public convenience, and of which the infraction is punished by a fine, but which it is apprehended could

(a) See per Bowen, L.J., Quartz Hill Gold Mining Co. v. Eyre, 11 Q. B. D. p. 692.

(b) Ibid., p. 691.

(c) Similarly an attachment is sometimes punitive in its nature, sometimes simply a means of enforcing obedience. In the one case it is criminal, in the other civil in its nature (In re Freston, 11 Q. B. D. 545; In re Gent, Gent-Davis v. Harris, 40 Ch. D. 190; In re Arm

strong, ex parte Lindsay, (1892) 1 Q. B. 327; Reg. v. Barnardo, 23 Q. B. D. 305, 308). In the one case, therefore, it is apprehended an action might lie in respect of proceedings for an order of attachment, since they would be necessarily injurious to reputation; while in the other there would be no injury unless there were actual damage.

(d) Rayson v. South London Tramways Co., (1893) 2 Q. B. 304.

not give rise to an action for malicious prosecution on the ground of scandal to reputation; for instance, a man's reputation could hardly suffer because he was proceeded against for laying a drain pipe in an improper manner, or keeping a pig in an improper place. It has been pointed out already that it is defamatory to say of any one that he has committed an offence for which he can be made to suffer corporally (a). A fortiori, therefore, is it injurious to his character to formally accuse him of such an offence. It is to be noticed, however, that the distinction taken in the old cases is that no action lies for damage to character where the charge is not in its nature "scandalous." Therefore, it was held in Savill v. Roberts (b) that a defendant who had preferred against the plaintiff an indictment for riot, on which he was acquitted, could not be liable except for the expense of preparing the defence. So, in another case (c) it was said that the mere preferring of an indictment for assault involved no injury to the good fame of the plaintiff. It is difficult to see on what grounds it can be maintained that a charge of breaking the peace conveys no imputation on the character of the person charged, and it may be doubted whether the authority of the cases above mentioned would now be recognized on this point. It is to be observed that formerly, in cases of slander by imputation of a criminal offence, a similar distinction was held to prevail between accusations which were simply defamatory and accusations which were "scandalous," and it was said that the latter only were actionable (d); but this distinction would appear to be now obsolete. Presumably an application to the Court to strike a solicitor off the rolls for misconduct would be a proceeding upon a criminal charge for which an action for malicious prosecution would lie.

If articles of the peace have been exhibited, or sureties of the Maliciously exhibiting peace have been demanded, maliciously and without cause against articles of the plaintiff, and he has been imprisoned in consequence of failing the peace. to find sureties, he may recover damages in respect of such imprisonment (e), but it does not seem clear whether he has any

(a) See above, pp. 478-9; Webb v. Beavan, 11 Q. B. D. 609.

(b) 12 Mod. 208.

(c) Byne v. Moore, 5 Taunt. 187.

(d) See Turner v. Ogden, 6 Mod. 104.
(e) Steward v. Gromett, 7 C. B. N. S.

191.