Odger's English Common Law

548 MALICIOUS PROSECUTION, &C.
manager without special authority ordered the arrest and
prosecution of the plaintiff, it was held that no action lay
against the bank ; for the manager's act was not within the
scope of his authority. 1
(ii.) Next the plaintiff must satisfy the judge "that there
was a want of reasonable and probable cause for the prosecu-
tion, or, as it may be otherwise stated, that the circumstances
of the case were such as to be in the eyes of the judge incon-
sistent with the existence of reasonable and probable cause." 2
In an action for false imprisonment, as we have seen, the
burden lies on the defendant to prove affirmatively that the
imprisonment was lawful; in an action for malicious prose-
cution, however, it is for the plaintiff to establish a negative
proposition—that there was no reasonable and probable cause
for the prosecution. This he must establish to the satisfaction
of the judge, who, in order to enable himself to determine this
issue, may leave subsidiary questions of fact to the jury, in
which case the onus of proving the existence of such facts as
tend to establish the want of reasonable and probable cause
on the part of the defendant rests upon the plaintiff. Thus,
for instance, it will be for the jury to say whether the defen-
dant believed in the guilt of the accused ; whether he believed
in the existence of the facts on which he had acted, and had
taken reasonable care to assure himself of their truth ; or
whether he knew of certain other facts, which afforded an
answer to the prosecution. 8 The judge must accept their
findings, and then decide whether the facts so found do or
do not amount to a reasonable and probable cause for the
prosecution. 4
" There must be, first, an honest belief of the accuser in the guilt of the
accused ; secondly, such belief must be based on an honest conviction of the
existence of the circumstances which led the accuser to that conclusion
thirdly, such secondly-mentioned belief must be based upon reasonable
1 Bank of New South Wales v. Ows'ton (1879), i App. Cas. 270.
2 Per Bowen, L. J., in Abrath v. N. E. By. Co. (1883), 11 Q. B. D. at p. 466 ;
and see Bradshaw v. Waterlow ^ Sons, [1915] 3 K. B. 527.
8 Sicks v. Faulkner (1878), 8 Q. B. D. 167 ; Abrath v. JV. E. By. Co. (1883), 11
Q. B. D. 440 ;
(1886), 11 App. Cas. 247.
* Lister v. Perryman (1868), L. E. 4 H. L. 521. In this case Ferryman failed in
his action, although Lister had acted on hearsay evidence in instituting the.
prosecution.
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