jury. Now here, admitting that the defendant bad such an 1824. indirect motive for arresting the plaintiff as might be con

RAVENGA strued into malice, still there was another ingredient wanting to the maintenance of the action, namely, the absence of MACKINTOSH. probable cause. Conceding that the defendant's object in arresting the plaintiff was to induce him to sanction the debentures which had been issued by Mendez, still, as the defendant had acted upon the advice and opinion of his special pleader, he had, in point of law, a reasonable and probable cause for that proceeding. Now that question was not decided by the Judge, as it ought to have been, but was left to the jury, and on that ground the defendant is entitled to a new trial. [Abbott, C. J. It is quite clear that the defendant was misadvised in point of law. The plaintiff was never legally liable to him, because he was not in any manner a party to the original contract. But the question is, by what motive the defendant was actuated when he obtained legal advice and under what circumstances he acted upon it.] If he has been misadvised in point of law, no responsibility attaches upon him; he is no lawyer; he obtains the advice of one who is a lawyer; he acts upon that advice; and he ought not to be made answerable for the consequences. [Bayley, J. But did he act bonâ fide upon the advice he received ? That was a question of fact, and properly left to the jury as such; they were of opinion that he did not, and how can we say that he did !

Abbott, C.J. I have very great doubts whether the defendant really believed that the advice he received was good in point of law. I left that question to the jury, and I left it to them to say, whether the defendant bad acted bonâ fide upon the opinion of his professional adviser. I told them, that if they thought he had acted upon that opinion, believing it to be law, and believing that he had a fair legal claim on the plaintiff, then they ought to find their verdict for the defendant; but that if they were satisfied that he knew he had no real cause of action, and had arrested the plaintiff for the purpose and as a means of inducing him to do some other act, then they were bound to find their





verdict for the plaintiff. The jury, thus directed, found for the plaintiff, and I cannot say that they did wrong. I am quite satisfied, that under the circumstances of the case, the question of probable cause, was matter of fact for them, and not of law for me, to decide; and it seems to me, that in so leaving the case to the jury, I pursued the most favourable course possible for the defendant.] There was no evidence at the trial tending to shew that the defendant did not believe the advice he received to be sound and honest advice, or that he doubted his right of action, or in any respect acted malâ fide; upon that point, therefore, there was nothing to leave to the jury, and they should have been directed to find for the defendant.

; ABBOTT, C. J.-I confess I think there was evidence to that effect, and it is plain that the jury thought so too. An attempt was made to induce the plaintiff to pay the money through the influence of a threat, because he was told in a letter, written by the defendant's attorney, that he was liable to be arrested. No attorney should have used such language upon such an occasion. It was evidently a contrivance between the defendant and his attorney to frighten the plaintiff into signing the debentures. I think the case went to the jury in a shape most favourable for the defendant, and I, for one, am perfectly satisfied with the mode in which they have disposed of it. If it is said that want of probable cause is a question of law, and that I was bound to give my opinion upon it, I must have given it against the defendant; for I am of opinion, that there was no probable cause, inasmuch as the defendant had no right of action whatever against the plaintiff. Malice and want of probable cause is a compound proposition. I directed the attention of the jury to the conduct of the defendant after the plaintiff was arrested. The plaintiff, after being in prison nearly two months, was allowed to be discharged on bail just on the eve of the time when the defendant ought to have declared against him. The defendant did not declare



until after he had been ruled so to do peremptorily, and then, in four or five days afterwards, he took out a rule to dispontinue; and I left the jury to say, whether this was not evidence to satisfy them that the defendant was convinced in bis own mind, that if he had gone on with his action he must have failed. I thought at the trial, that I left the case to the jury in the most favourable way to the defendant, and I confess I think so still.


BAYLEY, J.-I entertain no doubt whatever that there was a want of probable cause for this arrest. I accede to this proposition, that if a party lays his facts fairly before counsel, and he acts bonâ fide upon the opinion he receives, however erroneous the opinion may be, he is not liable for the consequences. But the sincerity of his conduct is a question for the jury, and that question was left for the consideration of the jury who tried this cause. In my opinion, there was abundant evidence for the jury to draw the conclusion that the defendant did not act bonâ fide. It may happen that a party takes half-a-dozen opinions upon his case, three of which are on one side, and three on the other. He may be perfectly safe in acting upon three, but not upon the others. Still, however, it is a question for the jury to draw the conclusion, whether he has or has not acted bonâ fide. I think this case was properly left to the jury, and that they have disposed of it rightly.

HOLROYD, J.-I am also of opinion, that this case was most correctly left to the jury. The question might certainly have been very different if, notwithstanding there was a malicious motive, the defendant had acted upon a belief that the opinion which he had received from his adviser was correct in point of law. Had that been the case here, it might have presented a very different question from that which is now before the Court. The question left for the jury was, whether the defendant acted bona fide in a conscientious belief that he was entitled to recover; and I


1824. think there was quite enough for the jury to draw the con

clusion, that the defendant did not believe that he had any RAVENGA

remedy against the plaintiff, but that he resorted to the exMackintosh. pedient of arresting him, in the expectation that he would

come to some terms of compromise. I am of opinion, that the case was correctly left to the jury, and that there is nothing to impeach the verdict.

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LITTLEDALE, J. concurred.

Rule refused.


THWAITES, Gent. one, &c. v. Piper. May 7. Where an at- ARCHBOLD moved for a rule to shew cause why, upon torney arrested the defend- filing common bail, the bail-bond given by the defendant in ant, and held this case, should not be given up to be cancelled. The plainhim to bail, for his bill of tiff, an attorney, had arrested and held the defendant to bail costs, amount, for his bill of costs, amounting to 15l., at the expiration of ing to 15l., and the costs were a month. After he was arrested and gave a bail-bond, the afterwards reduced by tax

defendent caused the bill to be taxed, and it was reduced to ation to a sum a sum less than that amount; and now this application was less than 151., the Court re

made on the 51 Geo. 3. c. 124. [Abbott, C. J.--Suppose fused to order

a man is arrested for 201. and the jury find him indebted for the bail-bond to be delivered a sum for which he would not be liable to be arrested; is up to be can- there any instance in which the Court has said, under such .

circumstances, that the bail are discharged?] There is not; but this case is distinguishable from that, because here the plaintiff is an attorney, and he knows very well what items in his bill will or will not be allowed on taxation. He knows beforehand that if he makes an overcharge the officer of the Court will deduct it on taxation, and therefore if he arrests a party upon a bill which is compounded of items, which upon taxation will reduce his demand below 151., he must be assumed to act under motives which the court will not sanction. This is not like the case of goods sold and de


livered, where a jury of tradesmen may reduce a plaintiff's demand to what they may consider just and reasonable, although in the first instance the defendant was liable to be arrested for a much larger amount. This plaintiff must be taken to know that he had no right to arrest the defendant for 15l., and therefore the present application is justifiable.



HOLROYD, J.-By the 30 Geo. 2. c. 19. s. 75. an attorney's bill must be delivered one month before he can proceed to recover it by action. If the defendant within that time gets it taxed, then it may be presumed that the charges are objected to; but if he thinks proper to lie by for the whole month, and wait until the action is commenced, and induces the plaintiff to suppose that there is no objection to the amount of the bill, then the case would stand precisely on the same principle as if the amount was ascertained by the verdict of a jury. The circumstance of the bill being afterwards taxed can make no difference as to the liability of the bail. It appears to me that this application cannot be supported.

The other Judges concurred.

Rule refused.

Bolton v. Crowther.

Friday, Case for a nuisance to plaintiff's land, by lowering the Where trus

May 7. high road in one part, and raising it in another, whereby tees under the three of plaintiff's gates leading from the highway to his pike Act, by

general Turnland were rendered impassable and useless, the land was improving the deteriorated in value, and plaintiff was obstructed in the en- public road, joyment of it. Plea, not guilty, and issue thereon. At the had effected a

consequential trial before Park, J., at the last Staffordshire Assizes, the injury to a pri

vate individual whose estate abutted on the road : Held, that they were not liable to an action, it appearing that they had not exceeded the authority given them by the statute.

course of a

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