Odger's English Common Law

552 MALICIOUS PROSECDTION, &C.
There are other actions of a like nature, in which malice is
a' necessary ingredient. Thus, an action lies against any one
•who falsely and maliciously files a petition to make the
plaintiff a bankrupt. " Here is falsehood and malice in the
defendant, and great wrong and damage done to the plaintiff
thereby. Now, wherever there is an injury done to a man's
property by a false and malicious prosecution, it is most
reasonable he should have an action to repair himself. But
it is said, this action was never brought before ;
I wish never
to hear this objection again. This action is for a tort; torts
are infinitely various, not limited or confined, for there is
nothing in nature but may be an instrument of mischief." 1
But no action for maliciously procuring the bankruptcy of
another can be maintained by a bankrupt still undischarged. 2
So an action will lie, without proof of any special damage,
at the suit of a limited company against any one, who
maliciously and without reasonable and probable cause pre-
sents a petition to wind the company up—but only after
the petition has been dismissed. 3
But it is not actionable for one man to commence in his
own name a civil action against another maliciously and
without reasonable and probable cause ; the only penalty
which such a plaintiff incurs is the payment of costs. If,
however, one man takes in hand, upholds or assists with
money or otherwise a civil action brought by or against
another, in which he has no interest, and does so without
any lawful cause arising from kindred, affection or motives
of charity, he is guilty of maintenance, which is an indictable
misdemeanour at common law
;
4 and if such maintenance
has caused special damage to the person sued (other
than the necessity of paying "extra costs"), an action
will lie to recover such damage. 5 And this is so even
1 Per Pratt, C. J., in Chapman v. Pickersgill (1762), 2 Wils. at p. 146 ; and
see Farley v. Banks (1855), 4 E. & B. 493 ; Johnson v. Emerson (1871), L. E.
6 Ex. 329.
2 Metropolitan Bank v. Pooley (1885), 10 App. Cas. 210.
a The Quartz Rill, #c, Co. v. Eyre (1883), 11 Q. B. D. 674.
* See ante, p. 206.
6 Bradlaugh v. Newdegate (1883), 11 Q. B. D. 1 ; Alabaster v. Harnett, [1895] 1
Bussy v. Amalgamated Society of Railway Servants (1908), 24 Times L. R.
Q. B. 339 ;
437 British ; Cash, $c, Conveyors, Ltd. v. Lamson, $c, Co., Ltd., [1908] 1 K. B.
1006. As to extra costs, see Gundry v. Sainsbury, [1910] 1 K. B. 99, 645.