Odger's English Common Law

OTHER MALICIOUS ACTS. 553
though the action which was " maintained " succeeded. 1 But
no action lies for assisting another in a criminal prosecution. 2
But an action lies for bringing and prosecuting an action maliciously
and without reasonable and probable cause in the name of a third person
who is insolvent, " if the party against whom that action is brought sustains
an injury ; . . . unless an injury be sustained, no such action will lie. If,
however, the action had been brought by a solvent plaintiff and had been
determined in favour of the defendant, and there had been an adjudication
of costs in his favour, he would have sustained no injury and would have
had no action against the party who sued him, although without reasonable
and probable cause." 3
So an action lies against a witness for not obeying a subpana, if his
absence has directly caused loss to the plaintiff. 4 But, curiously enough,
no action lies against a witness who, in the course of a judicial proceeding,
has uttered false statements, even though he has done it maliciously and
without any reasonable or probable cause, and the plaintiff has suffered
damage through the judicial tribunal acting on the evidence. 5 And
it has been held with regard to criminal proceedings that a man, against
whom a conviction stands unreversed, cannot bring an action against a
witness who negligently gave false evidence which caused that con-
viction. 6
And again, where a judgment creditor issues execution for money which
he knows is not due to him, he will be liable to an action. It is, of course,
primd facie lawful for a successful plaintiff to issue execution for the
amount of the judgment which he has obtained. But where he takes in
execution the debtor's goods for a larger sum than remained due on the
judgment, an action will lie if this was done maliciously and without
reasonable or probable cause—as, for instance, if he had received various
eums in part payment of the judgment, or was in any other way aware that
the sum, for which he issued execution, was excessive. 7
And, as we have already stated, 8 an act which is in itself
lawful will not become unlawful merely because it is done
maliciously; though, if an act be primd facie unlawful, the
presence of malice in the defendant's mind will, of course,
destroy any defence in which bona fides is an essential
ingredient, and generally also the defence that his act was
inadvertent or accidental.
1 Neville v. London "Express" Newspaper, Ltd., [1919J A. C. 368.
2 Grant v. Thompson (1896), 72 L. T. 264.
s Per Jervis, C. J., in Cotterell v. Jones and another (1851), 21 L. J. C. P. at
p. 6 ; approved in Coondoo v. Mookerjee (1876), 2 App. Cas. 186.
* Couling v. Coxe (1848), 6 C. B. 703. As to disobeying a subpwna duces tecum, see
R. v. Llanfaethly (1853), 2 E. & B. 940.
5 See Bevis v. Smith (1856), 18 C. B. 126.
« Bynoe v. Bank of England, [1902] 1 K. B. 467.
' De Medina v. Grove (1846), 10 Q. B. 152 ; Tancred v.
Q. B. 669 ; Churchill v. Siggers (1854), 3 E. & B. 929.
Leyland (1851), 16
« See ante, pp. 409, 410, 550.