Steward v Gromett
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1859 |
| Date | 11 November 1859 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 788
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 29 L. J. C. P. 170; 6 Jur. N. S. 776.
[191] steward v. gromett. Nov. llth, 1859. [S. C. 29 L. J. C. P. 170; 6 Jur. N. H. 776.] In an action for maliciously and without reasonable or probable cause going before a magistrate ;ind procuring the plaintiff to be held to bail to keep the peace, it is not necessary,-as in the ordinary case of an action for a malicious prosecution,- to aver that the proceeding before the magistrate was determined in favor of the plaintiff'; such a proceeding being ex parte, and the truth of the statement made by the applicant to the magistrate riot being controvertible. This was an action for maliciously and without reasonable or probable cause procuring the plaintiff to be held to bail to keep the peace. The declaration stated that the defendant falsely and maliciously, and without any reasonable or probable cause, made information upon oath before John .Richardson Fryer, Esq., one of Her Majesty's j'ustices of the peace in and for the county of Norfolk, that the plaintiff' had made use of the following threats towards the defendant,-" If I coujd have happened of Gromett on the fair day, I would have given him such a beating as he never had before ; and the first time I happen of him anywhere, I'll give him a good beating;" and that for the said threats the defendant was afraid that the plaintiff would do him some grievous bodily harm : and the defendant, (a) See the next case. 7C.B. or.S.)l, STEWARD V. GROMETT ?89 upon such charge, falsely and maliciously, and without any reasonable or probable cause, caused the plaintiff to be brought and to appear before the said justice and John Mareon, another of Her Majesty's justices of the peace iti arid for the said county, to answer the Baid complaint, and falsely and maliciously, and without any reasonable or probable cause, caused the said justices to order and adjudge that the plaintiff should enter into his own recognizance in the sura of 401., with two sufficient sureties in the sum of 201., to keep the peace towards Her Majesty and all her liege subjects, and particularly towards the defendant, for the term of six calendar months: That the defendant then falsely and maliciously, and without any reasonable or probable cause, caused the said justices to make and grant their warrant to convey the plaintiff to the castle ;t Swaffhatu, [192] in the said county, and to deliver him to the keeper thereof, and for the said keeper to receive the plaintiff into his custody in the said gaol, and him there safely keep for six calendar months, unless the plaintiff in the meantime should enter into such recognizance with such sureties as aforesaid to keep the peace in the manner and for the time aforesaid: That the defendant under the said warrant wrongfully and maliciously, and without any reasonable or probable cause, procured the plaintiff to be conveyed in custody to the said gaol, and there to be imprisoned for a long time, to wit, for six calendar months; and no indictment hath been preferred or prosecution commenced against the plaintiff for the said supposed threats and breaches of the peace in the said information mentioned, or for any or either of them : And that the said prosecution was and is wholly ended and determined as aforesaid : By means of which premises the plaintiff was impnsoned for the term aforesaid, and injured in health, and sufferer! great anxiety, and was put to expense in defending himself from the said prosecution and otherwise in relation to the premises, and was interrupted in and prevented from attending to his necessary affaira and business, and from earning his livelihood, and was and is otherwise injured. Claim, 5001. The defendant pleaded,-secondly, that the said prosecution was not instituted with the view of indicting the plaintiff, the matter charged against the. plaintiff not being an indictable offence, but merely for the purpose of procuring the plaintiff to be bound over to keep the peace, or to be detained in custody if he could not find sufficient sureties to keep the peace, for such time as one of Her Majesty's justices of the peace in and for the said county should think tit; that he the defendant entirely succeeded in such prosecution ; and that the plaintiff was detained in custody for six 193] calendar months, being the time which the said justices in the declaration secondly mentioned thought tit, during the whole of which time the plaintiff was unable to find sufficient sureties to keep the peace, which was the imprisonment in the declaration mentioned ; and that the said prosecution ended and determined by reason of the expiration of six calendar months, and not otherwise. The plaiutitf demurred to this plea, the ground of demurrer stated in the margin being " that the defendant's success in his application for surety of the peace does not shew that his proceeding was not malicious and without probable cause, nor bars the plaintiff's right of action under such wrongful proceeding." .Joinder. David Kearie, in support of the demurrer. The plea is clearly bad. The fact of the defendant's application to the magistrate being granted does not shew that his proceeding was not malicious and without reasonable or probable cause; for, if the articles or information laid before him are sufficient in themselves, and the applicant pledges his oath to the truth of the statements therein, the magistrate has no discretion. : A precedent for a declaration of this sort is to be found in 2 Chitty on Pleading, 7th edit., by Greening, p. 444. In general, to support an action for a malicious prosecution, it must be shewn that the charge was false, and made maliciously and without reasonable or probable cause, and that the plaintiff thereby sustained injury, $,nd, further, that the prosecution terminated in favor of the plaintiff; or that it was abandoned. But this last is only necessary where the proceeding is of such a nature that the party had an opportunity of defending himself against it: the rule does not apply where the proceeding is ex parte. The earliest authority for [194] an action of this sort is to be found in Rolle's Abridgment, Action sur Case (C.), "En Courts of Justice," pi. 1, where it is said : " Si A. exhibit faux articles al ua Master del Chancerie ver.s B. sur (jue B. est lie al good behaviour, B. avera, action sur lo case vers A. pur cest deceit et vexacion. Fasch. 17 Jae. B., enter Allan & ami Feme, Plaintiffs, and Ooinersall, Defendant, adjudge per totam ouriam: Mich. 17 Jac. B., 790 STEWARD V. GROMETT 7 C. B. (N. S.) 1S. enter Bradley and Jones, adjudge "(a). The Writ de Securitate Pacis [195] "lieth when a man is in fear or doubt that another will beat or assault him, and lieth properly where one man doth threaten another man to kill, neat, or assault him; then may he come into the Chancery, and pray to have such a writ unto the sheriff:" Fits N. B. 79, where the forma of the writ and attachment are given. [Erie, C. J. An action lies for maliciously holding a man to bail. There is no judgment of any tribunal there; and therefore an action lies if the party falsely swears that which enables him to arrest the plaintiff. The statute 34 Edw. ;!, c. 1, creating justices of the...
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