Mitchell v. Jenkins In the King’s Bench, November 11, 1833. Reported in 5 Barnewall & Adolphus, 588

This was an action on the case for a malicious arrest.

At the trial, before Taunton, J., at the last Summer Assizes for the county of Devon, it appeared, that the plaintiff was indebted to the defendant in the sum of £45, for one year’s composition of tithe; and that the sum of £16 5s. was due to the plaintiff from the defendant; that the defendant, under the advice of his attorney, arrested the plaintiff for the whole sum of £45, instead of for the balance, after deducting the sum of £16 5s. The defendant, on finding out that he was mistaken in point of law, and that he should only have arrested for the balance, discontinued the action.

There was no evidence at all of malice in fact; but the learned judge told the jury, that, as the plaintiff ought not, by law, to have been arrested for more than the balance, the law implied malice; and that the only question for their consideration was, the amount of damages; upon which a verdict was found for the plaintiff for £20.

A rule had been obtained, in a former term, calling on the plaintiff to show cause why that verdict should not be set aside, and a new trial had; against which—

Follett now showed cause.

Coleridge, Serjt., and Bere, contra.

Denman, C. J. Every arrest by a creditor for more than is due, is, in some sense, a wrongful act. By statute, if it be made without reasonable or probable cause, though with an entire absence of malice, the party arresting may be deprived of his costs, and at common law, if the party arrested has suffered damage to a greater extent than those costs, he may, if the arrest was also made maliciously, bring his action on the case. In that action, however, it is still incumbent on the plaintiff to allege and to prove malice as an independent fact; though it may in some instances be fairly inferred by the jury from the arrest itself, and the circumstances under which it is made, without any other proof. They, however, are to decide, as a matter of fact, whether there be malice or not. I have always understood the question of reasonable or probable cause on the facts found to be a question for the opinion of the court, and malice to be altogether a question for the jury. Here, the question of malice having been wholly withdrawn from the consideration of the jury, there ought to be a new trial.

Parke, J. I am also of opinion that there ought to be a new trial, on the ground that the learned judge withdrew altogether from the consideration of the jury the question of malice. I have always understood, since the case of Johnstone v. Sutton, 1 T. R. 510, which was decided long before I was in the profession, that no point of law was more clearly settled than that in every action for a malicious prosecution or arrest, the plaintiff must prove what is averred in the declaration, viz. that the prosecution or arrest was malicious and without reasonable or probable cause: if there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable; but when there is no reasonable or probable cause, it is for the jury to infer malice from the facts proved. That is a question in all cases for their consideration, and it having in this instance been withdrawn from them, it is impossible to say whether they might or might not have come to the conclusion that the arrest was malicious. It was for them to decide it, and not for the judge. I can conceive a case where there are mutual accounts between parties, and where an arrest for the whole sum claimed by the plaintiff would not be malicious; for example, the plaintiff might know that the set-off was open to dispute, and that there was reasonable ground for disputing it. In that case, though it might afterwards appear that the set-off did exist, the arrest would not be malicious. The term “malice” in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. That would not be the case where, there being an unsettled account, with items on both sides, one of the parties, believing bona fide that a certain sum was due to him, arrested his debtor for that sum, though it afterwards appeared that a less sum was due; nor where a party made such an arrest, acting bona fide under a wrong notion of the law and pursuant to legal advice. The question of malice having in this case been wholly withdrawn from the jury, I think the rule for a new trial must be made absolute.

Rule absolute.