Odger's English Common Law

THE PLAINTIFF'S CASE. 547
suffered any special pecuniary loss through the conduct of the
defendant. The unwarranted charge brought against him of
criminal misconduct must of itself injure his reputation ; it
may have led to an arrest, for which he would be entitled
to further compensation. In either case, the plaintiff has
probably been put to expense in connection with his
defence, either for counsel, solicitor or witnesses, and these
expenses he is entitled to recover from the defendant as
damages.
(i.) First, then, the plaintiff must prove the institution of
proceedings against him by the defendant. It will not be
sufficient for him to show that the defendant merely furnished
the authorities with facts, upon which they instituted pro-
ceedings.
Thus, where the defendant had merely laid the facts bond Me before a
magistrate, who erroneously treated the matter as a felony whereas it was
in reality only a civil injury and issued a warrant for the apprehension of
the plaintiff, no action lay against the defendant ; he was not responsible
for the mistake of the magistrate, and could not therefore be said to have
instituted the proceedings. 1
If, however, the defendant laid a formal com-
plaint or information before a magistrate, or signed the charge-sheet at the
police station, or instructed a solicitor to prosecute, this will be strong
evidence to show that he is responsible for the proceedings. But where
the defendant, acting bond fide, had sworn an information before a magistrate
under section 10 of the Criminal Law Amendment Act, 1885," and
the magistrate, exercising his judicial discretion, issued a search warrant,
it was held that no action for malicious prosecution lay against the defen-
dant ; for though he swore the information, he had not " instituted the
proceedings." 3
Where a prosecution is maliciously instituted without
reasonable and probable cause by the servant or agent of a
company or corporation, an action will lie against the company
or corporation, if the servant or agent acted by the
authority of his employers or if his act was within the
ordinary course of his employment. 4 But where a bank
i Wyatt v. White (1860), 29 L. J. Ex. 193.
2 48 & 49 Vict. c. 69.
3 Hope v. Evered (1886), 17 Q. B. D. 338 ; Lea v. Charrington (1889), 23
Q. B. D. 45, 272. In such cases, moreover, the fact that the magistrate issued the
warrant is clear proof that there was reasonable and probable cause for the defendant's
action.
4 Edwards v. Midland lly. Co. (1880), 6 Q. B. D. 287 ; Comford v. Carlton Bank,
Ltd., [1899] 1 Q. B. 392; [1900] 1 Q. B. 22 ; Citizens' Life Assurance Co., Ltd. v.
Brown, [1904] A. C. 423.
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