case roberts against SAVILL resolution Curi a action on the case will lie for  false and malicious procure the plaintiff to be indict for a riot S c ante S c  salk S c Carth S c salk S c ld ray S c Mod S c holt S c ld ray holt chief  justice this case come before we on a wait of error bring upon a judgement  give in the common plea in a action on the case wherein the plaintiff declare  that the defendant do false and malicious c cause he to be indict modern er p  at the session for a riot upon which he appear modern and be acquit and also  that the defendant do false and malicious cause he to be indict another time  at the session for a riot to which indictment he appear plead and be acquit by  reason of which prosecution he lose his good name and be at great trouble and  expense c to his damage one hundred pound to this declaration the defendant  plead not guilty and issue be join and try the jury give a verdict for the  plaintiff and eleven pound damage the defendant move in the common plea for  arrest of judgement and the question there be whether the action lie and upon  debate there the court be of opinion that the action do lie and the same  question have be debate and argue here we be also of the same opinion that the  action do lie this be no new point it have be often controvert here though I  think there be full authority to maintain this action and for the better  settle the matter it may be fit to consider upon what ground these action be  maintain and I take it that there be three sort of damage which will support  all action of this nature first where a man be injure in his fame or  reputation so that his good name be lose by reason of which injury if the word  themselves do not bear a action the loss or damage that may ensue will in the  case of barn v ConstantineYelv S c cro James a the action be for indict the  plaintiff before such justice ad to visit felonias nor ad peace conservand  assignat as a common barrator and that on not guilty plead he be lawful acquit  the defendant demand oyer of the indictment and it be certify to be take  before such justice ad peace to retain only and yet it be hold that the action  lie for that this action be but for damage for the slander it well lie  although the indictment be erroneous or as it have be adjudge see chamber v  Robinson stram Jones v gwynne pale yellow Rep S c Mod S c salk pain v porter  cro James and wicks v Fentham term Rep b if a bill be offer and find ignoramus  in the case of sir Andrew Henley v dr Burstall ray c for malicious indict the  plaintiff be a justice of peace for deliver a vagrant out of custody without  examination the court say that where a man prefer a indictment malicious and  such indictment contain matter of imputation and scandal as well as crime  there the action will lie say aliter where the indictment contain crime  without scandal as on forcible entry and here be slander as well as crime and  judgement be give for the plaintiff modern the second relate to a man person  where he be assault or beat or put under any confinement whereby he be deprive  of his liberty as appear by the statute Edward c but my Lord coke Inst d say  true that that statute be make in another year videlicet Edward c but neither  of these sort of damage be the foundation of this case for here his reputation  or person be not damnified now there be a three sort of damage which a man may  sustain in respect of his property and this be the ground of the present  action for that the plaintiff be put to unnecessary charge to answer this  indictment and it be most plain that he be put to unnecessary expense for that  the jury have find this prosecution be false and malicious now if there be a  injury do to a man property occasion by a wicked and malicious prosecution it  be all the reason in the world that a man shall have a action to repair  himself and so it appear in the yearbook of Edward the three Edward wonder pl  e which be express one be indict by two defendant in another county than where  he be demurrant accord to the statute Henry c though it be conspiraveru yet  one shall plead without the other for the tort be several and many other book  see assize pl Henry pl Henry pl a it have be object against these old case  that these action be ground upon a conspiracy which be odious in the law and  that to discourage such conspiracy to ruin man such action be allow but I  answer that in those case the conspiracy be not the ground of the action but  the damage will b which the modern er p plaintiff sustain in respect of the  needless expense he be put to for no action lie for the bare conspiracy but it  be the malicious prosecution which be the ground of the action and when one  only false and malicious carry on the prosecution yet a action lie and though  it be call a action of conspiracy yet true it be only a action on the case  Fitzherbert n b Jones c and it be only proper a action of conspiracy where the  indictment be for treason or felony Inst d modern and therefore if such a  action be bring against two and one only be find guilty no judgement can be  give for this be proper a conspiracy it be to indict a man for so criminal a  matterAnte cro Elizabeth roll Abr salk hawk p c c S e but where the conspiracy  be only to indict a man for a misdemeanour though the action be against two  and only one be find guilty yet judgement shall be against he as in the case  of trespass see Subley v mott will f for real it be a action on the case and  no action of conspiracy there have be another objection and that be the  opinion of the judge in the case of sir Andrew Henley v dr Burnsthall ray g  and low v beardmore ray a but though I have a great respect for the authority  of the judge who at that time sit here yet I think I ought not to have so much  weight for that the judge only speak it obiter it not be material to the main  point and when a bill of indictment be not find there be no damage do there be  a great deal of difference between bring a action malicious and prosecute a  indictment malicious in a action a man either claim some title or complain of  a injury and therefore if a man only think so the law allow he all just remedy    I but then if the plaintiff demand be unjust he be to be punish by way of  amerciament pro falsely warcry his and beside no man be to prosecute a action  without find of pledge and where a action be vexatious the plaintiff be amerce  proportionable finch law king but indeed this remedy be but formal the Act of  parliament give the defendant cost however the ancient form of find pledge and  be amerce be still retain and though it be true that it be nothing but form  yet the principle of law which make the difference be still the same Bl Com  and beside the cost if it appear that a action be bring mere through malice  and vexation a good action lie upon show forth this special matter so where  one man arrest modern another for a great sum of money when but a small one be  due or where a stranger who be not concern bring a action in either of these  case a good action lie in the case of daw v swain Michaelmas term car side a  the plaintiff declare in a action on the case that the defendant have arrest  the plaintiff in Middlesex and intend to detain he in gaol falsely et wickedly  tell the sheriff that the plaintiff owe he five thousand pound and that he  ought to take bail accord and that he be keep in prison several day and  verdict for the plaintiff and the plaintiff have judgement because he have  special damage by such parlance a action on the case in nature of a conspiracy  be bring against three sand b one be find guilty and the other two not guilty  and by the court it be good against he that be find guilty this action be  bring to the intent to keep he in prison for default of manucaptors for three  hundred pound there in fact there be no cause of action gunston case e the  case of chamberlain v Prescot in Michaelmas term cite in low v beardmore ray d  be for malicious indictment on statute Elizabeth c for procure the defendant  to be arrest in another man name and hold the action lie yet it be say there  that this judgement be reverse in the exchequerchamber and this matter be  mighty controvert and it be true the judgement in that case be reverse but it  be not because the action will not lie but because he be not indict of any  offence within the statute as appear upon the fact as it be set forth in the  indictment so that if he have be convict he can have incur no damage for the  court will have arrest judgement in modern er p Carlion v mill cro car Jones  roll Rep e the case be that the defendant be apparitor under the bishop of  Exeter malicious and without colour or cause of suspicion of incontinency of  his own proper malice procure the plaintiff ex duty to be cite to the  consistorycourt c and there to be at great charge and vexation until he be  clear by sentence which be to his discredit and great expense it be move that  the action lie not for this for he do not cite he but as a informer and by  virtue of his office but per curian the action lie for it be allege that he  falsely et wickedly cause he to be cite upon pretence of fame when no such  offence be commit and aver that there be not any such fame so as he do it  malicious and of his own head in a action on the case against churchwarden  dament v Rudock roll Abr f for that they falsely c to the intent to draw the  plaintiff within the ecclesiastical censure for adultery with a S and the  declaration be that they conspire to do it and the one be find guilty and the  other not guilty yet this be but a action on the case it lie modern if a cause  b to be indict for a common barrator upon which indictment b be acquit he may  have his action against a but I must tell you that this action ought to be  handle with a great deal of caution after the grand jury have find the bill  upon their oath but indeed unless the bill be find no action will lie for that  the party be not damage neither be it a good ground of action or indictment  against a man that he bare procure he to be false indict but there must be  express malice find that it may appear that the prosecution be not for the  sake of justice but to gratify the party peevish revenge or malice a action  for a malicious prosecution will not lie if probable cause appear on the  proceed and both malice and want of probable cause be necessary to support  this kind of action Johnstone v Sutton term Rep but the want of probable cause  shall be evidence of malice and the action will lie although the bill of  indictment be defective Wilks v Tentham term Rep or the grand jury return it  ignoramus pollard v Evans show Morgan v Hugh term Rep b so that upon the whole  we all agree that the judgement must be affirm michaelmas term the ten of  William the three in the king bench sir John holt Knt chief justice sir Thomas  Rokeby Knt sir John Turton Knt justice sir Thomas Trevor Knt attorneygeneral  John hawles Esq solicitor general