stances amounting to a justification, or to a contradiction of a material fact admitted upon the record, must be specially pleaded, and cannot be given in evidence in mitigation of damages(a). In an action of assault, therefore, a defendant cannot, under a plea of not guilty, prove that he committed the assault in self defence, or in fear of his life; and a sheriff who has imprisoned the plaintiff cannot, if he pleads not guilty only, give evidence of his writ in mitigation of damages(b).

The recovery of damages in an action for false imprisonment is no bar to an action for a malicious prosecution(c).

(a) Linford v. Lake, 27 Law J., Exch. 334.

(b) Speck v. Phillips, 5 M. & W. 281.

(c) Guest v. Warren, 9 Exch. 379; 23 Law J., Exch. 121; post, ch. 22.
AD. VOL. II.-47

CHAPTER XIII.

OF MALICIOUS CONSPIRACY, MALICIOUS PROSECUTION, AND
ARREST-MALICIOUS ABUSE OF LEGAL PROCESS.

SECTION I.-Of malicious conspiracy, prosecution, and arrest-Malicious abuse of • legal process.-Malicious conspiracy-Malicious exhibition of articles of the peace-Malicious prosecution-What is evidence of want of reasonable and probable cause, and of malice-Prosecutions by persons conscious of the innocence of the accused-Prosecutions under the advice of counsel-Malicious complaints before magistrates, causing a warrant to be improperly issued-Ratification of pending proceedings-Causing search warrant to issue-Malicious indictment-Malicious prosecution by court-martial-Malicious assertion of a legal right-Malicious and unfounded actions-Malicious execution-Maliciously causing an extent to issue-Malicious proceedings in bankruptcy-Malicious abuse of legal process-Malicious detention of judgment-debtors-Malicious arrest-Proof of actual custody.

SECTION II.—Of actions for malicious arrest and malicious prosecution.—Parties to be made defendants-Pendency of a rule for a criminal information against the defendant-Declaration of the cause of action-Pleadings, defences and evidence-Damages recoverable.

SECTION I.

OF MALICIOUS CONSPIRACY, MALICIOUS PROSECUTION AND ARREST—
MALICIOUS ABUSE OF LEGAL PROCESS.

850 Malicious conspiracy.—A conspiracy to do an unlawful act, and the doing of the act in pursuance of the conspiracy to the damage of the plaintiff, create a good cause of action against all the parties to the conspiracy. A criminal proceeding by way of indictment lies for the mere act of conspiring, but a civil action is not maintainable unless

the plaintiff has been aggrieved, or has sustained "actual legal damage" by some overt act done in pursuance of the conspiracy(a).

Where the plaintiff's declaration of his cause of action set forth that he exercised the profession of an actor, and was engaged to perform in the character of Hamlet, in Covent Garden Theatre, and that the defendants and others maliciously conspired together to prevent the plaintiff from so performing, and from exercising his profession in the theatre, and in pursuance of the conspiracy hired and procured divers persons to go to the theatre and hoot the plaintiff, and the persons so hired did in pursuance of the conspiracy go to the theatre and hoot the plaintiff, and interrupted his performance, and prevented him from exercising his profession, and thereby caused the plaintiff to lose his engagement and divers gains and emoluments, and to be brought into public scandal and disgrace, it was held that the declaration disclosed a good cause of action(b).

But a conspiracy to institute legal proceedings and to obtain a judgment by means of false testimony, and the giving of such testimony, and the procurement of the judgment, to the pecuniary loss of the plaintiff, cannot be made the ground of an action for damages so long as the judgment remains unreversed, whether the judgment be the judgment of one of our own courts of justice or the judgment of a foreign tribunal, if it appears that the plaintiff had an opportunity, if he had thought fit to avail himself of it, of appearing and controverting the false testimony, or if it can be shown that he did appear and was heard, and that the matter was decided against him(c).

Where the plaintiff's declaration of his cause of action set forth that he was possessed of premises on which he carried on the business of a skin-dresser, and that the defendant and another person unlawfully and maliciously conspired together to procure possession of a portion of the said premises, and set up thereon a secret still for distilling spirits; that in pursuance of such conspiracy they induced the plaintiff to let to them a portion of the premises, by representing that they wanted them for the purpose of carrying on the business of ink-mannfacturers; and that having thereby got possession of that part of the premises, they set up thereon certain private stills, and illegally dis

(a) Crompton, J., Castrique v. Behrens, 30 Law J., Q. B. 168. Kimball v. Harman & Burch, 34 Md. 407. Hutchins v. Hutchins, 7 Hill (N. Y.), 107. Herron v. Hughes, 25 Cal. 555. Eason v. Petway, 1 Dev. & Bat. 44. Tappan v. Powers, 2 Hall, 277. See Patten v. Gurney, 17 Mass. 186; Swan v. Saddlemire, 8 Wend 676.

(b) Gregory v. Duke of Brunswick, 6 M. & Gr. 205; ante, pp. 10, 11.

c) Castrique v. Behrens, 30 Law J., Q. B. 163.

tilled spirits, and caused it to appear that the plaintiff had himself set up the stills, and was illegally distilling upon his premises, and that the plaintiff in consequence thereof was arrested, convicted, fined, and imprisoned, averring that the plaintiff was wholly ignorant of the stills being on his premises; it was held that the action was not maintainable, as it did not appear that the arrest, conviction, and imprisonment of the plaintiff were the direct result of the wrongful act of the defendant, or that the defendant should in anywise be made responsible for the illegal acts contemplated by him. The defendant's act of conspiring, it was observed, merely enabled him to obtain possession of part of the plaintiff's premises. The only ground of damage was the plaintiff's being illegally convicted. And if it could have been shown that the conspiracy was entered into for the purpose of procuring a conviction of the defendant for having possession of a secret still, or for unlawfully distilling, the only remedy would have been an action for a malicious prosecution; and to such an action the conviction of the defendant would be an answer, for it must be assumed that the facts relied upon by him were brought before the tribunal for his exculpation, and were decided against him(d).

If two confidential agents of a partnership conspire together to obtain for themselves the shares of the partners at an undervalue by keeping the accounts of the partnership fraudulently, so as to conceal from the partners the true value of their shares, they will be responsible both at common law and in equity for the damage resulting from their breach of duty(e).

851 Malicious exhibition of articles of the peace against another, supported by a false oath of threats having been used, may be made the foundation of an action for damages, notwithstanding that the accused person has been required to find sureties, and been imprisoned for default, for the truth of the articles cannot be controverted before the court, which has no discretion, and can pronounce no judgment on the truth of the facts, but is bound to act upon the statement sworn to before them(f). Where, therefore, the plaintiff's declaration of his cause of action set forth that the defendant falsely and maliciously, and without any reasonable or probable cause, made information on oath before a magistrate that the plaintiff had used certain

(d) Barber v. Lesiter, 7 C. B., N. S. 183.

(e) Walsham v. Stainton, 33 Law J., Ch. 68.

(f) Rex v. Doherty, 13 East, 171. Venafra v. Johnson, 3 M. & Sc. 847; 10 Bing. 301.