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Malicious arrest

Malicious arrest is wilfully putting the law in motion to effect the arrest of another under civil process without reasonable and probable cause. It is not actionable unless it involves interference with liberty.1)

A suit to recover damages on account of injuries caused by an arrest in accordance with a decree of a competent Court can only be maintained under special circumstances. The plaintiff must show:

  1. that the original action, out of which the alleged injury arose, was decided in his favour;
  2. that the arrest was procured maliciously and without reasonable and probable cause by the defendant;
  3. that the injury or damage sustained was something other than an injury which has been, or might have been, compensated for by an award of the costs of suit, i.e., he has suffered some collateral wrong.

Where a plaintiff must show an absence of reasonable and probable cause, malice alone is not sufficient to entitle him to a verdict.2)

The foundation of an action for malicious arrest is, that the party has obtained an order or authority from a Judge to make an arrest, by imposing some false statement upon the Judge, knowingly and designedly, and for the purpose of obtaining some undue advantage, or by stating certain facts as being true within his knowledge, when he knew nothing about them, or his belief in the truth of a particular statement, when he had no reasonable or probable cause for his belief.3) If a person sets the process of a Court in motion and a wrong person is arrested, he is only responsible if he obtained such process fraudulently and improperly.4) If a party truly states facts, and the Judge thereupon does an act which is erroneous, the party is not liable; for the damage then arises from the mistake of the Judge and not the false statement of the party.5)

Where the party submits to the process, or to the commands of an officer intimating that he is in custody, there is a perfect arrest. Actual contact is not necessary to constitute an arrest.6)


In awarding damages the following facts may be taken into consideration. The plaintiff, by reason of the arrest, was prevented from attending to his business, was injured in his credit7) and was put to and incurred divers costs and expenses for his maintenance during the detention, and in obtaining his discharge.8) The costs and expenses of procuring a discharge from an arrest are limited to those which have been taxed or recognised by the Court; and extra costs, though actually incurred, are not recoverable.9)

Spence v. Jacob
Williams v. Taylor
Gibbons v. Alison
Bheema Charlu v. Donti Murti
Farley v. Danks
Grainger v. Hill
Jennings v. Florence
Churchill v. Eiggus
Sinclair v. Eldred

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