Whalley, Gent one, & v Pepper and Harding, Gent one, &
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1837 |
| Date | 01 January 1837 |
| Court | High Court |
English Reports Citation: 173 E.R. 224
IN THE COURTS OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
Attornies-Hunt, and Barnett.
(Civil Side) before Mr Justice Littledale whalley, gent oste, £c v peppeb and harding, gent one, &c. (If A wilfufly and maliciously cause B , an attorney in practice, to be arrested on mease process, A. knowing him to be an attorney, an action on the case lies against A, for causing this arrest ; and the fact of A having a good cause of action against B. for a large sum, will be no ground of defence ; and the attorney of A. may be joined in the action if, besides acting as attorney, he co-operated with A. in causing the arrest In an action for a malicious arrest, the question 13, whether the original plaintiff had a probable cause of action for the amount for which he held the party to bail , and not whether he had probable cause of action in the particular form of action brought : thus where A had a good cause of action on a covenant for a sum of £1150 against B & 0. separately, but not jointly, and he sued B. & C jointly, and arrested B. in that action, for that amount, it was held that an action for a malicious arrest would not he by B. against A. In considering whethei there was probable cause for an arrest, the Judge will not take expressions of general malice into his consideration, as tending t ahew a want of probable cause. If in a declaration for a malicious arrest it be averred that the plaintiff was arrested, that allegation is satisfied by proof of a detainer ) [Applied, The " Walter D Wdlet" [1893] P 202.] Caea-Tke first count of the declaration stated that the plaintiff was, and still is, one ol the attornies of the Court of King's Bench, and prosecuted divers suits and [507] actions as an attorney, and that the plaintiff and all other attornies of that Court pieseeuting suits there have been and ought to be privileged from anests in. personal actions prosecuted by any subject of the Kimg against such attorney, either separately or jointly with any other person or persons ; nevertheless the 7 CAR. ft P. 508. WHALLEY V. PEPPER 225 defendants, well knowing the premises, wrongfully &c , on &c maliciously caused and procured to be sued and prosecuted out of the Court of Common Pleas a certain writ, at the suit of the said John Pepper, against the said plaintiff and one Thomas Whalley This count then recited the writ, and stated that it was indorsed for bail for £1150, and that the plaintiff was arrested, and the action discontinued, whereby the plaintiff was injured in carrying on his business, &c The second count was for a malicious arrest, and commenced with stating that John Pepper, having no probable cause of action against the plaintiff and one Thomas Whalley to the amount of the sum of money for which the defendants maliciously caused the plaintiff to be arrested as hereinafter mentioned, the defendants maliciously sued out a wnt of capias against the plaintiff and Thomas Whalley, &c (in the usual form) indorsed for bail for £1150. Pleas-First, Not guilty -Second, that John Pepper at the time of suing forth the writ, and of the arrest, had a reasonable and probable cause of action against the plaintiff and Thomas Whalley for the amount for which he caused the plaintiff to be arrested It was opened by Ludlow, Serjt , for the plaintiff, that the plaintiff and his brother, Mr. Thomas Whalley, had been arrested in a joint action of covenant, at the suit of the defendant Pepper, for £1150, that sum having been advanced by him on a mortgage, and...
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