Hill vs. Miles, 9 N.H. 9

Parker, J. It is not necessary, in all cases, that there should be an arrest, or service of process upon a party, in order to the maintenance of an action for maliciously instituting legal proceedings. 3 Esp. 144, 147, Cooper vs. Booth; 1 D. & E. 535; 2 Chitty's Pl. 301, note; Bac. Abr., Actions on the Case, H, cites Roll. Abr. 112 and W. Jones 93; Hobart's Rep. (Williams' Ed.) 266, b, 267, a, and note. A count in slander, charging that the defendant had imposed upon the plaintiff the crime of felony, is good after verdict. 2 Barn, & Cres. 283, Blizard vs. Kelly, and note.

The count charged that the defendant had wrongfully and without reasonable or probable cause, imposed the crime of felony upon the plaintiff. Abbot, Chief Justice, said— 1: This form of count is very ancient. The words in present use are a bad translation of the Latin words, ‘ cri-men feloniae imposuit.’ The legal sense and meaning of those words is, that the party made the charge of felony before a magistrate. It is not sufficient, in support of such a count, to prove that the plaintiff was charged with felony in conversation.

It can only be sustained by proof that the defendant went before a magistrate and charged the plaintiff with felony. The objection taken to such a count, that it does not specify the particular felony with which the party was charged, is not valid after a verdict.” Vide, also, 1 Shower 282, Haynes vs. Rogers ; 1 Roll. Abr. 114, Action sur Case, R, 5 ; Cro. Jac. 190, Dogatte vs. Lawry ; ditto 490, Payn vs Potter ; Com. Dig., Action upon the case for defamation, D, 4; 5 Barn. § Ald. 634, Pippet vs. Hearn.

From these authorities it appears, that an action for slander may be maintained for, maliciously and without reasonable or probable cause, charging a party with felony before a magistrate ; and if so, it can be no objection that the declaration sets forth the circumstances of the charge in detail. A general count will be good after verdict. The implication is that the count should set forth the particular charge.

Had the first and second counts, therefore, been perfect, this action might perhaps have been sustained upon them, on the preceding authorities, provided the charge was made from malicious motivelfand without probable cause. The first alleges, that he made and swore to a false and malicious complaint, without probable cause, and then sets out the complaint; but there is no direct averment that Woodman, to whom it was directed, was a magistrate. The second count alleges that the defendant maliciously, and without probable cause, complained to O. W.

Woodman, Esq. one of the justices, &c., and caused a warrant to he issued on said complaint. This is not a very technical allegation, that he made a charge against the plaintiff, before a magistrate ; but it might, perhaps, be held good after a verdict on it for the plaintiff. On the trial, however, these counts were regarded as counts for a malicious prosecution. We are of opinion that the evidence does not support the third count, which is for words spoken. All the evidence relates to a written complaint, and for aught which appears, the defendant wrote it himself.

There is no evidence of the speaking of any words. The verdict might perhaps be applied to the fourth count, as is suggested by the plaintiff ⅛ counsel, if that is good, and the matter had been properly left to the jury. The count is not in the usual form of declarations for libels; but, without enquiring whether the count is sufficient in point of form, we are of opinion that the direction to the jury cannot be supported. It is not sufficient, in such case, that the complaint which the defendant made was altogether false and groundless.

An action for a libel cannot be sustained for a proceeding before a court having jurisdiction of the subject matter, if the process was instituted under a probable belief that the matter alleged was true, and with the intention of pursuing it according to the course of the court, even if the matter-turns out to be wholly false; and the falsity in such case cannot be left to the jury as evidence of malice. It may well be questioned whether an action for a libel could be sustained, under such circumstances, even if there was evidence of express ill will. 4 Co. 14, Buckley vs. Wood; 2 Burr. 810.

Want of probable cause is held to be evidence of malice. There is evidence in this case, however, tending to show that the defendant made a complaint, and procured a warrant, not for the legitimate purpose of having the plaintiff arrested and examined, as he might well have done had there been probable cause to believe him guilty of larceny, but with a view to aid himself in the civil suit which he commenced at the same time, and with the intention of enforcing payment for the oxen, about the purchase of which, it seems, there had before been some negotiation.

If such was the purpose, it was wholly unwarrantable and illegal; and in such case the defendant cannot protect himself by alleging that he made the charge in the due course of legal proceedings. We are of opinion that if a party institutes legal process without intending to prosecute it in the regular course, but as a pretence to promulgate slander, or serve any other improper purpose, uo privilege extends to such a misuse of the forms of law, and he may be prosecuted for any libellous matter which he thus publishes. The verdict must be set aside, and the plaintiff may then amend his declaration.

New trial granted.