The British Press; or, Morning Literary Advertiser.
London, England, 1825-11-24 00:00:00

5
r ~.., be pushed to this extent (which, indeed, had been
laslay), that, whatever might be the conduct of the party,
owsver malicious the arrest, still no such action as the pceient
=MU maintained. His Lordship was not of that opinion ; if
that were the fact, it would leave open a door to the mos: cruel and
arbitrary acts that he trusted the laws of this country 'would never
let go without punishment. It had been said that bard Kenyon
was of opinion that no action could be maintained for a malicious
arrest, where the action had been put an end to by an award. If
mom could not b:ing their actions, many petits would he
railer by those who, having the power, felt desirous to exert it
is oppressing others ; and it would be impossible for them to ob-
tain reparation. If this were so, the consequence would be, that
-wiles would be deterred from referring questions to arbitration.
His Lordship was therefore of opinion, that where parties had
agreed to put an end to a cause in which there had been an arrest
by an award ; yet, if it could be proved that there was no cause
for such an arrest, the putting an end to it by an award could
not prevent the party from coming into Court for redress for
Injury he had sustained. It hatl been said that this was an
action not to be favoured. Bin Lordship was at a loss as to
what was meant by favouring an action. If a malicious prosecu-
tion was brought upon insufficient evidence, tile Court would cer-
tainly_ show no favour to the plaintiff, but would directly dismiss
It. He thought, however, that when the facts necessary to sup-
port such an action were fully made out (no case was entitled to
more than justice), yet, if the eapreacion of favour could be np-
plied to any case. it mighi be *Oiled to such a case as this. There
could not be a doubt that a criminal judgment could not be re-
ceived in evidence In a civil case t this had been the law from the
time of Lord Chief Baron filbert down to the present, and upon
this principle—that the judgment had been obtained upon the tes-
timony of the prosecutor, and could not be given in evidence in an
action where lie was a party. But there weto other principles
equally as salutary ; and in Mr. J. Buller's Nisl Prins it
was stated that a case occurred in 6 Moden. where the tea-
(illicitly of woman, in support of a prosecution, might be read
in defence of an action brought against her husband far such
• prosecution ; and the reason was, because it was necessary,
and that without such evidence the party might remain
wholly undefended. So in an action against the hundred the
party robbed was admitted as w witness. The law of this coun-
try, following, as it did, the principles of common sense and jus-
tice in all cases, had admitted that necessity to exist. It had been
said that this rule 'night have been obtained upon other evidence.
He for one would not lay it down that a rule of this sort could not
be received In evidence, because it was partly obtained by the oath
or the psrty in the cause. The consequence would be • re.
ceipt for oppression. Because such were the facilities :tainted
in this country, that a party might be left in prison, and
die under the oppression of this rule. It would be encou-
raging the most tyrannical proceedings. This poor woman, it
seemed, was in a most alarming state of licalth, and.the defend-
ant said she might lie and rot before he consented to her discharge ;
and should they be required to give up all that tide to redress, in
obtaining their liberty, to whiali all British subjects were entitled ?
It would be most unjust. If the party were to do this, could they
ever obtain such a rule as the present ? Was it not constantly said,
when applications were made to the Court—" Wby does not the
party make an affidavit ?" It would, in fact, be laying down A rule
which must shut out the party from being able by any possibility
to obtain redress. The rule.of Court, however, could only be used
in the present action to show that the cause was at an end. The
want of probable cause must be proved by other means, and so
must the malice. There was abundant proof both of a want of pro.
bible cause and also of malice, and this rule ought therefore, in
his opinion, to be discharged.
Mr. Justice Pasta, Mr. Justice BUR1101:411, and Mr. Justice
GASILEZ, were of the same opinion.
Rule discharged with costs.
The rule against the defendant requiring to answer the matters
contained in the affidavits was not argued, the party not being pre-
pared.

,a the
answer'

, not
con-

•