Montgomery, J.[[400]] The court also ruled throughout the case that in this action the defendant was not at liberty to prove that the plaintiff was in fact guilty of the criminal offence imputed to him in the prosecution instituted by the defendant. It is well established by authority that in an action for malicious prosecution it is a complete defence to show that the plaintiff was in fact guilty of the offence charged against him by defendant, and this though the proof of guilt is furnished by evidence not known to defendant when the prosecution against the plaintiff was instituted. This testimony is not in such case offered in support of probable cause, but to show that the plaintiff has suffered no wrong by his arrest. The law considers that, if a criminal is fortunate enough to escape conviction, he should rest content with his good luck, and not belabor one who suspected his guilt and acted accordingly. As was said in Newton v. Weaver, 13 R. I. 617:—
“The action for malicious prosecution was designed for the benefit of the innocent, and not of the guilty. It matters not whether there was proper cause for the prosecution, or how malicious may have been the motives of the prosecutor, if the accused is guilty he has no legal cause for complaint.”
See, also, Threefoot v. Nuckols, 68 Miss. 123; Whitehurst v. Ward, 12 Ala. 264; Parkhurst v. Masteller, 57 Iowa, 478; Turner v. Dinnegar, 20 Hun, 465; Lancaster v. McKay, 103 Ky. 616.
The judgment is reversed, and a new trial ordered.
The other Justices concurred.[[401]]
CHAPMAN v. PICKERSGILL
In the Common Pleas, Michaelmas Term, 1762.
Reported in 2 Wilson, 145.
Action upon the case for falsely and maliciously suing out a commission of bankrupt against the plaintiff, who declared upon three counts; in the first, having stated his honesty, he alleges that the defendant did falsely and maliciously exhibit a petition to the Lord Chancellor that the plaintiff was indebted to him in £200, and had committed an act of bankruptcy, that the commission thereupon issued, and the plaintiff was declared a bankrupt, and that afterwards the commission was superseded; and the plaintiff avers that he never committed any act of bankruptcy; the second count is much the same, with the like averment; the third count is much the same, but without such averment. To this the defendant pleaded the general issue, and there was a general verdict and damages for the plaintiff taken, upon all the three counts; whereupon it was moved that the judgment might be arrested.
This case was argued twice at the bar, in two former terms by Serjeant Hewitt and Serjeant Burland for the defendant, and by Serjeant Whitaker and Serjeant Nares for the plaintiff; and in this term the Lord Chief Justice gave the opinion of the whole court, that judgment must be for the plaintiff.
Lord Chief Justice. Upon the arguing of this case, the first objection was, that this action will not lie, there being a remedy given by statute, that a proceeding on a commission of bankruptcy, was a proceeding in nature of a civil suit; and that no action of this sort was ever brought: but we are all of opinion that this action is maintainable.[[402]]
The general grounds of this action are, that the commission was falsely and maliciously sued out, that the plaintiff has been greatly damaged thereby, scandalized upon record, and put to great charges in obtaining a supersedeas to the commission; here is falsehood and malice in the defendant, and great wrong and damage done to the plaintiff thereby. Now, wherever there is an injury done to a man’s property by a false and malicious prosecution, it is most reasonable he should have an action to repair himself. See 5 Mod. 407, 8; 10 Mod. 218; 12 Mod. 210. I take these to be two leading cases, and it is dangerous to alter the law. See also 12 Mod. 273; 7 Rep. Bulwer’s case, 1. 2 Leon. —— 1 Ro. Abr. 101; 1 Ven. 86; 1 Sid. 464. But it is said this action was never brought; and so it was said in Ashby and White; I wish never to hear this objection again. This action is for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief, and this of suing out a commission of bankruptcy falsely and maliciously, is of the most injurious consequence in a trading country.