Flight v. Leman In the Queen’s Bench, June 9, 1843. Reported in 4 Queen’s Bench Reports, 883

Case. The second count of the declaration alleged that the defendant heretofore, to wit 1st January, 1838, and on divers &c. between that day and 22d November, 1838, contriving and maliciously intending to injure, harass and damnify plaintiff, and to put him to great vexation, unlawfully and maliciously did advise, procure, instigate and stir up John Thomas to commence and prosecute an action of trespass on the case in the court &c. (Queen’s Bench) against the now plaintiff; that by and through such advice, procurement, instigation and stirring-up, John Thomas did in fact afterwards, to wit 4th January, 1838, commence and prosecute the last-mentioned action. The present declaration then set out three counts of a declaration in case at the suit of John Thomas against the defendant, averment of a trial at nisi prius at Dorchester, on 18th July, 1838, and that the defendant was then and there acquitted of the premises mentioned to be charged against him by John Thomas. And thereupon afterwards, to wit 22d November, 1838, it was considered, in and by the said court &c., amongst other things, that the said John Thomas be in mercy for his false claim against the now plaintiff defendant in the said last-mentioned action as aforesaid. Whereby the now plaintiff was not only put to great trouble and vexation, but was also obliged to pay, and did in fact pay, a large &c., to wit £800, in and about the defence of the said action.

The defendant pleaded, in effect, that the advice given by him was given in the character of an attorney.

Replication de injuria.

Special demurrer. Joinder.

Lord Denman, C. J. The case of Pechell v. Watson, 8 M. & W. 691, proceeded on the principle that to maintain an action already commenced was unlawful. That is not here charged; and therefore the count ought to show the ingredients which make the instigation to a suit actionable. The plaintiff has not done this; for, beyond all doubt, the absence of reasonable or probable cause is one such ingredient, in the absence of which it does not appear that the plaintiff has been unlawfully disturbed.

Patteson, J. I think this declaration is bad, for the reason already given. The case is analogous to that of a complaint of malicious prosecution or arrest; and here, as there, the want of reasonable or probable cause ought to be alleged.

Williams, J. The averments in this declaration might be sustained by proof that the defendant, not being an attorney, had held a conversation with Thomas, and had said, “If your story is correct, you might sue Flight.” No action could be maintained on that, unless it further appeared that the now defendant knew that there was no right to sue the now plaintiff.

Coleridge, J. It is not asserted here that the suit maintained was without reasonable or probable cause: there are only general words, imputing an instigation and a stirring-up. There should be added to these, in strict analogy with actions for malicious prosecution or arrest, as my Brother Patteson has pointed out, an averment of want of reasonable or probable cause: and without such averment this declaration shows no right of action.

Judgment for defendant.