[266 b] 1 Saund. 132. Yelv. 117. 4 Co. 14. Hutt. 113. e. Cro. a. Roll. 1. Abr. 34. But now to the main point; we hold, that if a man bring an action upon a false surmise, in a proper court, he cannot bring an action against him and charge him with it as a fault directly, and ex diametro, as if the suit 432. Dyer, 235. itself were a wrongful act; for executio juris non habet injuriam. And as all by nature is good, so Saint Paul saith, the law is good if a man use it lawfully;' so the abuse of law is the fault. Therefore 11 Eliz., a man brought a writ of forgery, of faux faits; the defendant, though he be found guilty, could not have a scandalum magnatum, and lay the charge contained in the action to be the scandal. So 43 Edw. 3. 33, the plaintiff brought an action of false imprisonment; the defendant pleaded that he caused him to be imprisoned upon a statute. The plaintiff replied, that there was a day given him upon defeasance to pay the money, and that he paid the money before the day limited; and yet it was ruled against the plaintiff, because he was imprisoned by course of law. 6 Co. 13. b. Yel. 38. Co. L. [267] 3 Le. 239, 330. 2 Cro. 134. 1 Roll. 34. And so we rule it every day, that if a man be imprisoned upon a formal suit, though there were no just cause of suit, yet if he give a bond for his release, he shall not avoid it by a duresse, for it is incarceratio legitima, that is, by law, though the plaintiff did untruly procure it. 2 Cro. 187. utra. But now on the contrary part, if you charge me with a crime, in a court that is no way capable of the cause, I 3 Cro. 230, 247. shall have action for it, and lay that very complaint to be 2 Cro. 432. 2 Cro. 134. Cr. Car. 291. Dy. 285. the slander, as it is resolved, Coke l. 4, 14, in the case of Buckley against Wood, for a charge of piracy or felony, in the star chamber; for that is scandal. temerarium, as if it were spoken elsewhere, the star chamber being as no court to that purpose. So I hold, if a man sue me in the spiritual court for a mere temporal cause. 8 E. 4. 3 Cro. 836. Now to the principal case; if a man sue me in a proper 667. Ant. 206. court, yet if his suit be utterly without ground of truth, and that certainly known to himself, I may have an action of the case against him for the undue vexation and damage that he putteth me unto by his ill practice, though 4 Co. 14. b 601. 20. 11 Co. 87. the suit itself be legal, and I cannot complain of it, as it [267 a] is a suit, as in the case before; and therefore the 16 of E. 3. Fitz. Deceipt 35. a conusee of a statute sued execution 2 Cr. 191, 409, against his deed of defeasance, whereupon the conusor had Ant. 266. Yel. an action of deceit against him and his assign, in the na- b. ture of an audita querela. So note the distinction upon this case, and 43 E. 3. before. If a man sue me, and hanging that suit, commence another against me, to this I have a plea in abatement, which proves this latter suit unjust and vexatious; but if he discontinue the former, he may bring a new action. Likewise I hold, that I may have an Cr. Jac. 507. action upon the case against him that sues me against his Jones 196. Cr. release, or after the money duly paid; yea, though it be 506. upon a single obligation. So where one doth bargain and sell his land at the common law, and refuse to make as- 3 Cro. 107, 386. surance accordingly, and after conveyeth the land to another, who hath knowledge of the first bargain, the first bargainee may have an action upon the case, or deceipt, as well as subpana; whereupon Fairfax, 21 E. 4. 23. saith well, that if men will be good pleaders, there should not be cause of so many suits in chancery. But now two cautions are to be observed to maintain actions in these cases. Car. 141. 2 Cr. 6. 2 R. 3. 9. b. The first, that the new action must not be brought be- Yel. 117. Ant. fore the first be determined, because till then it cannot appear that the first was unjust; which is the reason given by the judges 2 R. 3. ; and that is the reason that a writ of conspiracy lies not till the plaintiff be lawfully acquitted. The other rule is, that there must be not only a thing 9 Co. 55. b. done amiss, but also a damage, either already fallen upon And therefore 19 H. 6. 44. the party, or else inevitable. 2 Cr. 490. Cr. El. 197. If a man forge a bond in my name, I can have no action 4 Co. 18. b. upon the case yet; but if I am sued, I may for the wrong and damage, though I may avoid it by plea; but if it were a recognisance or fine, I shall have a deceit presently before execution. For quæ in continenti vel certo fiunt, inesse videntur. 43 E. 3. 20. Deceipt against one that procured a formedon by collusion. (1) (1) The action for malicious prosecution has generally been discouraged by the courts, because it is feared that too great a latitude in al 2 Cr. 61, [267 b] lowing such suits would have a tendency to discourage just prosecutions; and in civil actions it is thought that the taxable costs recovered by a successful defendant are large enough to prevent groundless actions. But on proper occasions, this action will lie; and if the jury give exemplary damages the court will not interfere. The action may be maintained, either for having maliciously, and without probable cause, preferred a complaint against the plaintiff for any supposed offence whereby he is injured, In his person by imprisonment, In his property by expense; or for having wilfully, wittingly and maliciously sued or procured another to sue the plaintiff where nothing is due, or where a much less sum is due, or in the name of another without his order, whereby the plaintiff has sustained some special damage. The leading case on this subject, for a groundless criminal prosecution, is Jones v. Gwynn, 10 Mod. 148, 214, which is cited and relied on as a binding authority in several subsequent cases of the highest authority. The other more important cases are Savil v. Roberts, 1 Salk. 13. Wicks v. Fentham, 4 T. R. 248. Goddard v. Smith, 6 Mod. 262. Reynolds v. Kennedy, 1 Wils. 232. Beauchamps v. Crafts, Dyer 235. Cox v. Warrall, Cro. J. 193. S. C. Yelv. 105. Marham v. Pescod, Cro. J. 131. Chambers v. Robinson, 1 Str. 691. Moore v. Shutter, 2 Show. 295. Bains v. Constantine, Yelv. 46. Candel v. Louden, 1 T. R. 520, in n. Arundel v. Tregono, Yelv. 117. Farmer v. Darling, 4 Burr. 1971. Johnson v. Sutton, 1 T. R. 493. Poulterer's case, 9 Coke 56. Morgan v. Hughes, 2 T. R. 225. Johnson v. Browning, 6 Mod. 216. Warren v. Matthews, 6 Mod. 73. Purcel v. M'Namara, 9 East 361. Whitney v. Peckham, 15 Mass. Rep. 243. Smith v. Mc Donald, 3 Esp. Rep. 7. Smith v. Hixon, 2 Str. 691. The more important cases relating to this action, brought for a groundless civil suit, are Savil v. Roberts, 1 Salk. 13. S. C. 12 Mod. 208. S. C. 5 Mod. 394, 395. Chapman v. Pickersgill, 2 Wils. 142. Watkins v. Baird, 6 Mass. Rep. 506. Goslin v. Willcock, 2 Wils. 302. Hayden v. Shed, 11 Mass. Rep. 500. Sterling v. Adams, 3 Day 411. Steer v. Scroble, Cro. J. 667. Lindsey v. Larned, 17 Mass. Rep. 190. White v. Dingley, 4 Mass. Rep. 433. Skinner v. Gunston, 1 Saund. 228. Gibson v. Charters, 2 B. & P. 129. Purton v. Honor, 1 B. & P. 205. Wetherden v. Emden, 2 Camp. 295. Austin v. Delman, 3 Barn. & Cressw. 139. London. Waller. Action for ceiver hath de FLEETWOOD vs. CURLEY. The words, 'Mr Deceiver hath deceived and cozened the king,' &c. spoken of the king's receiver, are actionable. MILES FLEETWOOD, knight, brought an action upon the case against Francis Curley, esquire, and declared, that words, Mr de- whereas the king, by his letters patents, An. 7. did make ceived and co- him general receiver of the court of wards during his king. 1 Roll. life, which office he had justly executed ever since; that 148. 2 Cro. 557. the defendant, the 16 of K. Jac., having speech with one Whorewood of the plaintiff, did speak of the plaintiff Hetl. 139, 143. these words, M. deceiver (innuendo the plaintiff) had zened the 82. 2 Ro. R. Godb. 341. Mod. R. 23. deceived and cozened the king, and dealt falsely with him, [267 c] and I have him in question for it, and I doubt not but to prove it ere it be long.' Upon issue not guilty, it was found for the plaintiff before me at Guildhall; in arrest of judgment it was said, that it doth not appear by the words spoken, that they were spoken of the plaintiff; for 'M. deceiver' had no propriety to that purpose; and then the innuendo will not make it certain, when it appeareth to the court that the words will bear no certainty. 2 [268] Cro. 102, 107. 3 Cro. 497. Co. 17. a. Ant. 52. 4 Co. 32. cord. Devant, Secondly, it was objected, that he did not say, that the plaintiff did deceive the king in his office. Yet the court, after divers arguments, gave judgment for the plaintiff. 4 And as to the first exception it was agreed, that if a man 17. b. Alein, should say, looking upon three persons, one of these three murdered a man,' no innuendo will help this incertainty, no more in the person than in the matter of the scandal. P. 13 Jac. Harvy brought an action against Ducking, for saying that he had forged a writing, innuendo a bill of Yelv. 21. acdebt, setting down in the innuendo all the circumstances; 45. 2, 3. and though he had a verdict, yet could have no judgment. But here it is said, that at the time of the words the defendant had speech of the plaintiff, and expressly that he spake these words of the plaintiff. And then the word deceiver, though in propriety it doth not import receiver, yet the allusion and ironical resemblance of the name doth very well bear the application of the innuendo; and if such a slight evasion should be admitted, it would be a common practice with crafty wits, to slander safely. And if he had said M. receiver,' there had been no doubt. And as to the second point, it was likewise agreed that words of an ambiguous sense shall receive the best sense; as pox, not the French pox. And 12 Jac. Miles brought an action against Jacob, for saying he had poisoned one Smith, and had judgment in the king's bench; but we reversed it, because it might be against his will. It was also agreed, that if the plaintiff should have added an innuendo, that the deceit was in his office, it would have been nothing available. But the court resolved, that upon the Ant. 6. 89, 776. 17. a. b. 2 Cro. Yel. 21. 4 Co. 343. Ant. 6. Roll. 77. 2 Cro. 438.utra. [268 a] Brnl. 6. Yel. 32. Ant. 76. 8, Moor 855. Alein. 13. 53. Ant. 117. whole case here, the words must be understood of themselves, by construction of law, of his office; for words ambiguous must also be of indifferent sense that shall be indifferently taken. But when there is a pregnant, violent, and certain sense that may lead the court and hearers to take it one way, that shall be taken, and not another imagined, whereof there is no appearance. So here, when you say of the king's receiver that he deceived the king, it must be understood in that wherein it appeareth that he may deceive him, and not to take it at large when no other meaning appears; and therefore not like the case of pox, or poisoning before mentioned: otherwise if he had said, that he had been a common deceiver, without applying it to the king certainly, whose officer he is. Mic. 11 Jac. Yardly being an attorney, brought an action against Ellis, and declared, whereas he was retained by one Bancroft 9. 1 Roll. 53. against the defendant, he said of him to Bancroft, 'your attorney is a bribing knave, and hath taken twenty pounds of you to cozen me,' and had judgment; for it shall be 1 Roll. Abr. f. taken spoken of him as an attorney. And Mich. 14 Jac. Box, an attorney, brought an action against Barnaby for calling him champerter, and had judgment. And it is not material that it is not alleged in this case and the others, that the hearers did know him to be the king's receiver, and the others to be attornies; and yet it were not actionable, if it were not so; and the slander and damage consist in the apprehension of the hearers: and therefore slanderous words in Welsh bear no action, except you affirm, that they were spoken in the hearing of them that understood the Welsh tongue. But when slanderous words are spoken, which are a wrong, the doers are answerable for all evil events and damages. Now the hearers may come to the knowledge, or others to whom they shall report the words may know, that they are persons of that condition that make the words actionable, which in the case of Welsh words cannot be so understood in any reasonable possibility. (1) Moor 867. 1 Brnl. 6. 3 Cro. 496. Ant. 82, 191. (1) Vide ante p. 6 a. n. (1.) |