Steward v. Gromett In the Common Pleas, November 11, 1859. Reported in 7 Common Bench Reports, New Series, 191

Erle, C. J. I am of opinion that our judgment in this case must be for the plaintiff. It is an action against the defendant for falsely and maliciously, and without reasonable or probable cause, making information on oath before a magistrate that the plaintiff had used threatening language to him, whereby he went in fear of bodily harm, and so procuring a warrant under which the plaintiff was incarcerated in the castle at Swaffham, for want of sureties, for a period of six months. It is admitted on the pleadings that the defendant did falsely and maliciously, and without reasonable or probable cause, procure that wrong to be done to the plaintiff; and the question is whether the declaration shows enough to entitle the plaintiff to maintain an action for that wrong. This is in some sort an action for a malicious prosecution; and it has been contended by Mr. Couch, for the defendant, that the case falls within the ordinary rule applicable to such actions, that the plaintiff must show that the proceeding terminated in his favor, and that no action lies where they are shown to have terminated against the accused. But I am of opinion that the distinction taken by Mr. Keane removes that objection, and shows that that rule does not apply to this case, because the proceeding before the magistrate being founded upon a statement which the party charged is not at liberty to controvert, is an ex parte proceeding, and, although it attains the result which is sought, it is not a judgment, but is in the nature of a writ of process. It is not like the case of an application to a magistrate upon a matter on which he is to exercise his discretion: there, the injury sustained by the party is the act of the law, and therefore no action lies unless the person who sets the magistrate in motion is actuated by malice. But here the law was directly put in motion by the defendant against the plaintiff, and, it must be assumed, falsely and maliciously and without reasonable or probable cause. If a party goes before a judge, under the 1 & 2 Vict. c. 110, with an affidavit of debt for the purpose of procuring a capias to arrest his debtor, upon a suggestion that he is going abroad, and that is done falsely and maliciously, and without reasonable or probable cause, an action lies. So, if a party go to the Court of Queen’s Bench, and maliciously exhibit articles of the peace against another, supported by a false oath that such other had used threats against him, his statement being incontrovertible, it is clear to my mind that an action would lie. Can it make any difference that here the proceeding took place before a magistrate? It seems to me that the two proceedings are quite analogous: the same remedy is sought, only by a different mode. As in the one case the truth of the articles cannot be controverted, so in the other the statement made before the magistrate upon oath cannot be contradicted by the accused. There is not the least sign of authority to show that the magistrate had any discretion, so that the plaintiff might have had a decision in his favor. In Burn’s Justice, sureties of the peace are treated as being subject to precisely the same rule as articles of the peace at the sessions or in the Court of Queen’s Bench, in respect of their truth being incontrovertible. And there is strong reason for assuming that to be the true state of the law; the fact of there being no authority exactly in point as to sureties of the peace, may well be accounted for by supposing that no one has entertained doubt enough upon it to take the opinion of any court. But as far as authority goes, The King v. Doherty, 13 East, 171, and Venafra v. Johnson, 10 Bing. 301, 3 M. & Sc. 807, are in favor of the plaintiff. In the latter case, Johnson made precisely the same application to the justices as was made here, and they exercised a precisely analogous jurisdiction, the only difference being that there the magistrates held the plaintiff to bail for his appearance at the sessions, whereas here the magistrate at once committed the plaintiff to jail until he should find the required sureties: and it was there decided by implication that the proceeding before the magistrate was incontrovertible; for, the court held that the judge was wrong in not leaving it to the jury to say whether or not the defendant believed the menaces when he put the law in motion against the plaintiff. If Mr. Couch’s argument to-day is right, the counsel and the court in that case were all wrong. Upon principle, therefore, and upon authority, it seems to me that the argument for the plaintiff in this case ought to prevail.

Judgment for the plaintiff.