PART I.

CAP. III.

Setting up libel by plaintiff.

One libel cannot be set up against another SEC. III. as a defence; nor can it be set off in reduction of damages, unless the libel by the plaintiff may be regarded as the provoking cause of the libel by the defendant. (Ad. Torts, 628; Rosc. 577; Mayne, 281.) 122. If the defendant offered an apology, it may be given in evidence in mitigation of damages. (Ad. Torts, 628-9; Broom Com. 721; Rosc. 577.) 123.

Apology.

Usual course

in actions for libel.

The judge usually gives a definition of libel, and then leaves it to the jury to say whether the facts necessary to constitute the offence so defined are proved. And the judge may, if he thinks fit, give his own opinion, as a matter of advice to the jury. (Ad. Torts, 629; Broom Com. 730-1; Rosc. 562.) 124.

The question of privilege is a question of law for the judge, and not a question for the jury. (Henwood v. Harrison, L. R. 7 C. P. 628.) 125.

CHAPTER IV.

OF EXEMPTION FROM PERSONAL ANNOYANCE

GENERALLY.

CAP. IV.

BESIDES corporal security, corporal liberty, PART I and security to character and reputation, everyone has an inherent right to an exemption from vexatious annoyance generally. Under this head it may suffice to mention one form of vexatious annoyance, namely, that of malicious proceedings at Law. 126.

malicious

or malicious arrest.

A person is liable to an action if he puts Action for the criminal law in motion before a Court or prosecution a judicial officer, or causes a search warrant to issue, or an action to be brought in the name of a third person, a pauper or insolvent who could pay no costs, or an execution for an excessive amount, or if he causes the detention of a judgment debtor, maliciously and without reasonable or probable cause for such a proceeding. 127.

Malice may be either express or actual, or be only implied or constructive. For malice is not confined to spite. It includes any

CAP. IV.

PART I. motive other than that of simply bringing an offender to justice.

128.

Malice must be combined with want of reasonable and probable cause. Neither will suffice without the other; so that if a man is actuated by the most flagrant malice, yet if there was reasonable and probable cause for the prosecution, he will be entitled to judgment in such an action. Want of reasonable and probable cause cannot be implied from the most express malice. But malice (in the technical sense of an intention to do a wrongful act) is ordinarily implied from the absence of reasonable and probable cause; and even if there was such cause, yet if the defendant did not know it, or did not believe that the plaintiff was guilty, malice may be inferred. (Ad. Torts, 4th ed. 613-634; Broom Com. 715-717; Selw. 1071-3, 1079, 1080; Rosc. 12th ed. 771-2; Austin, app., Dowling, resp., L. R. 5 C. P. 534; Gilding v. Eyre, 10 C. B. (N. S.) 592.) 129.

If a defendant maliciously and without reasonable and probable cause, has made statements before a magistrate, in order to induce, and has induced him to issue a warrant for the apprehension of the plaintiff, the defendant is responsible. (Ad. Torts, 4th ed. 618, 619.) 130.

CAP. IV.

The facts (such as the conduct, belief, and PART I. motives of the parties) must be left to the jury (if there is one): but whether the facts found constitute reasonable and probable cause, must be determined as a matter of law by the judge, and not by the jury. (Lister v. Perryman, L. R. 4 H. L. 521, 538-9; Ad. Torts, 4th ed. 631-2; Rosc. 12th ed. 771-3; and see supra, par. 64.) 131.

66

The onus of showing that there was not reasonable and probable cause, rests, in the first instance, on the plaintiff. It is no doubt a negative, but it is a negative essential to the plaintiff's case; and the defendant. is entitled to the benefit of the plaintiff's failure to establish that negative." (Lord Colonsay, in Lister v. Perryman, L. R. 4 H. L. 542.) 132.

There are no rules or principles as to what constitutes reasonable and probable cause. Each case depends on its own merits, and the opinion of the judge who tries it. (Lister v. Perryman, L. R. 4 H. L. 521.) 133.

As to reasonable and probable cause grounded on hearsay evidence, it may perhaps be accurately laid down thus: that a person may have reasonable and probable cause, though he may have proceeded on hearsay evidence of another, if such other

D

CAP. IV.

PART I. person appeared trustworthy, and if such hearsay evidence be a reasonable amount of credible information stated to have been given to such other person by a third person who appeared trustworthy, and to be speaking as to his own knowledge. (See remarks in Lister v. Perryman, L. R. 4 H. L. 521.) 134.

An abandonment of the prosecution, or an acquittal for want of evidence, is not of itself any proof of malice or of the want of reasonable or probable cause. (Ad. Torts, 4th ed.

If the plaintiff was convicted, he cannot obtain judgment, even though there was by law no appeal against the conviction. Indeed, in order to recover damages for a malicious prosecution or arrest, the plaintiff must show that the proceeding was determined in his favour, though he may not have been actually acquitted, and that he suffered in person, in reputation, or in point of expense. (Ad. Torts, 4th ed. 620, 628, 633; Rosc. 12th ed. 770; Selw. 1073; Broom Com. 717; Mayne, 259; Rosc. 579, 584; Basébé v. Matthews, L. R. 2 C. P. 684.) 136.

In the same case, there may be both wrongful imprisonment and malicious prosecution, or either may exist without the other.