Odger's English Common Law

THE PLAINTIFF'S CASE. 549
grounds ; by this I mean such grounds as would lead any fairly cautious
man in the defendant's situation so to believe; fourthly, the circumstances
so believed and relied on by the accuser must be such as amount to
reasonable ground for belief in the guilt of the accused." 1
" In order to justify a defendant there must be a reasonable cause, such
as would operate on the mind of a discreet man ; there must also be a
probable cause, such as would operate on the mind of a reasonable man—at
all events, such as would operate on the mind of the party making the
charge, otherwise there is no probable cause for him." 2
Thus, where the defendant had prosecuted the plaintiff for perjury and
the plaintiff was acquitted, and subsequently in an action for malicious
prosecution there was a conflict of evidence on the very point on which the
plaintiff was alleged to have committed perjury, the judge directed the jury
that, if they were not satisfied which of the parties they should believe, they
must find for the defendant, as the plaintiff would, in that case, have failed
to show that the defendant had acted without reasonable and probable
cause ; and it was held on a motion for a new trial that the direction was
right. 3
The belief of the defendant in the guilt of the plaintiff at
the time when he instituted the proceedings against him is
very material. If he can show that he acted bond fide and
took counsel's opinion on the facts of the case, he has a very
strong defence, however erroneous counsel's opinion may
prove to be. But if he withholds facts from counsel or pur-
posely obtains the advice of an inexperienced lawyer, he will
be liable in an action for malicious prosecution, because he
could not have had a bond fide
plaintiff. 4
the prosecution failed. 5
belief in the guilt of the
Malice cannot be inferred from the mere fact that
(iii.) Next, the plaintiff must prove that in instituting the
proceedings the defendant was actuated by malice. Such
malice may consist either of personal ill-will against the
plaintiff, or of a general disregard of the right consideration
due to all mankind which, though it may not be directed
against any one in particular, is nevertheless productive of
injury to the plaintiff. Malice may, therefore, be proved in two
i Per cur. in Hicks v. Faulkner (1878), 8 Q. B. D. at pp. 171, 172.
2 Per Tindal, 0. J., in Broad v. Ham (1839), 5 Bing. N. C. at p. 725, quoted
with approval by Lord Hatherley, L. C, in Lister i. Perryman (18/3), L. B. 1
H. L. at p. 530. _ „„„
3 Hicks v. Faulkner (1878), 8 Q. B. D. 167.
* Ravenga v. Mackintosh (1824), 2 B. & C. 693.
* Corea v. Peiris, [1909] A. C. 549.