British evidence necessary to prove favourable termination of proceedings, said: "I peremptorily decline to follow the invitation of the learned counsel to delve into the technicalities surrounding the drawing up and proof of records which troubled the judges of a generation ago in Ontario" (a). Ontario. Alberta and REASONABLE AND PROBABLE CAUSE: JUDGE AND Where there is conflicting evidence (c) the jury must be allowed to find the facts (d) and the judge make the inferences (e). The jury find the facts on which the question of reasonable Saskatche- and probable cause depends, but the judge determines whether those facts do constitute reasonable and probable cause (f). wan. British New If the judge does not think there is evidence to go before the jury, but he nevertheless leaves it to the jury, he must give his judgment on their findings (g). Where the evidence is conflicting (h), or where inferences are Brunswick. to be drawn from the facts proved, the case must be left to the jury, and the question of "probable cause" should not be determined by the judge alone (i). But, while the jury may be asked to find on the facts from which reasonable and probable cause may be inferred, the inference from the facts found must be drawn by the judge (k). Nova Scotia. A judge is in error if he submits the question of reasonable and probable cause to the jury; that is a question he must decide for himself (). The burden of proof of want of reasonable and probable cause is on the plaintiff (m). The mere dismissal of a charge is no evidence of want of reasonable and probable cause (n). L. R. 242, per Prendergast, J. (g) Baker v. Kilpatrick, 7 B. C. R. 150. (h) Vincent v. West, 1 Han. 290. (i) Alward v. Sharp, 1 Han. 286; cf. Abell v. Light, 1 Han. 240. (k) Peck v. Peck, 35 N. B. R. 484. (1) Meaney v. Reid, 1 East L. R. 109 (1906), per Townshend, J. (m) Raymond v. Biden, 24 N. S. R. 363, per Graham, E.J. (n) Ibid., per Ritchie, J. EVIDENCE NOT LEGALLY ADMISSIBLE (a). The defendant may state hearsay evidence relied on by him as Ontario. facts (b) on which to base his prosecution. MISTAKES OF LAW (c). In considering the question of reasonable and probable cause Manitoba. a defendant may be protected although he was mistaken upon a matter of fact (if his mistake was honest and bonâ fide), but not upon a matter of law (d). ACTING UNDER LEGAL ADVICE (e). Where a prosecutor has bona fide taken and acted upon the Ontario. opinion of counsel in the proceedings taken by him, laying all the facts of the case fully and fairly before such counsel, this is itself evidence to prove reasonable and probable cause (ƒ). But he must take reasonable care to ascertain all the facts and lay them all before the counsel (g). Where the defendant did not take the advice of counsel in Alberta and laying the information, but afterwards acts on the advice of the Saskatchecriminal prosecutor, he cannot screen himself behind the advice wan. of counsel (h). The defendant must have used reasonable care to ascertain Manitoba the facts, have stated them all fairly to the counsel, and acted bonâ fide on the opinion before he can claim to be protected by counsel's opinion (i). It is not sufficient to allege that all the information received has been laid before the magistrate and legal adviser without showing what facts have been laid before them (k). In one case the plaintiff joined as a defendant the solicitor on Nova whose advice the prosecution was started, but the judge withdrew Scotia. the case as against him on the ground that there was no evidence against him (1). (a) P. 652, supra. (b) See Bernard v. Coutellier, 45 U. C. R. 453. (c) P. 654, supra. (d) Rex v. Stewart, 6 M. L. R. 257. (e) P. 654, supra. (f) Martin v. Hutchinson, 21 O. R. 388; Fellowes v. Hutchinson, 12 U. C. R. 633. (g) St. Denis v. Shoultz, 25 A. R. 131; Scougall v. Stapleton, 12 O. R. 206; McGill v. Walton, 15 O. R. 389. (h) Colwill v. Johnson, 1 West L. R. 218, per Wetmore, J. (i) Wilson v. City of Winnipeg, 4 M. L. R. 193; Rex v. Stewart, 6 M. L. R. 257. (k) Rogers v. Clark, 13 M. L. R. 189. (1) Leary v. Saxton, 27 N. S. R. 278: nice distinction drawn between taking legal advice and taking counsel's opinion in England. Nova Scotia. BELIEF (a). Although the defendant believes the charge, he may still be acting maliciously (b). MALICE (c). Ontario. Nova Scotia. Ontario. Manitoba. New The absence of reasonable and probable cause does not necessarily establish that malice which is requisite to maintain the action (d). Malice will not be presumed; there must be a finding as a fact by the jury of actual or real malice (e). INDIRECT MOTIVES (f). Evidence of the motive which induced the defendant to lay a charge is material, and should not be rejected (g). Indirect motives are evidenced by instituting a criminal prosecution to save the expense of a civil suit (h), or by proceedings not with a view to punishing an abductor, but to regain possession of the child (i). MALICIOUS DETENTION (k). An action will not lie for maliciously and without probable Brunswick cause detaining the plaintiff in prison after payment of the debt for which he was arrested, unless a legal determination of the suit is shown, or the plaintiff had been ordered to be discharged by the Court (1). defined. A FRANCHISE is " a royal privilege or branch of the king's pre- Franchise rogative subsisting in the hands of a subject. . . . It is . . . a franchise for a number of persons to be incorporated and subsist as a body politic. . . . Other franchises are . . . to have waifs, wrecks, estrays, treasure trove (a), royal fish, forfeitures, and deodands; ... ... to have a fair or market, with the right of taking toll either there or at any other public places, as at bridges, wharfs, and the like. . . or, lastly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty" (b). 66 of franchise. Disturbance of franchises happens when a man has a franchise Disturbance of holding a court-leet, of keeping a fair. or market, of free warren, of taking toll, of seizing waifs or estrays . . . and he is disturbed or incommoded in the lawful exercise thereof. As if another by distress, menaces, or persuasions, prevails upon the suitors not to appear at my court; or obstructs the passage to my fair or market; or hunts in my free warren; or refuses to pay me the accustomed toll; or hinders me from seizing the waif or estray, whereby it escapes and is carried out of my liberty; in every case of this kind . . . there is an injury done to the legal owner; his property is damnified, and the profits arising from such his franchise are diminished. To remedy which, as the law has given no other writ, he is, therefore, entitled to sue for damages by a special action on the case" (c). Many of the franchises mentioned in the above passages are V. Trustees (b) Bl. Com., Vol. 1, pp. 37–8. (a) Attorney-General British Museum, (1903) 2 Ch. 598. Markets and fairs. Right of lord of market. Setting up rival market. practically obsolete. In respect of others the methods of infringement are obvious, and do not require special consideration. It is only necessary to deal here with the franchises of markets, fairs, and ferries. A franchise of a market consists in the exclusive right to invite a concourse of buyers and sellers, either of goods generally or of particular kinds of goods, at certain appointed times, either to a certain spot marked out by metes and bounds or to some spot to be appointed within the limits of a town or parish. A fair does not appear to differ in its legal incidents from a market (a), though the latter is less than the former (b). It is in fact simply a special kind of market held yearly or half-yearly. Ancient fairs and markets exist by charter and prescription. In modern times, however, they are usually created by Act of Parliament. By 38 & 39 Vict. c. 55, ss. 166-7, urban authorities have power to establish markets, subject to the provisions of the Markets Clauses Act (c). With regard to markets by grant from the Crown, the right of the lord of the market is to restrain buying and selling which interferes with his monopoly. In certain cases the mere interference is of itself actionable; in others the buying and selling must be, as it is termed, in fraud of the market. But if once the disturbance of an existing market is proved, the absence of fraudulent intention on the part of the defendant is no bar to action (d). It is a clear disturbance of a market to set up a rival emporium, and to invite a concourse of buyers and sellers for the purpose of trafficking in articles of the same kind as those for which the market is held (e). An auctioneer who conducts public sales of tollable goods may be guilty of a disturbance, and so may the owner of the premises on which the auction takes place, provided he let them for the purpose (f). It has been laid down (g) that a rival market held on any day within seven miles of the old (a) 2 Inst. 406. (b) Gunning on Tolls, p. 44. (c) 10 & 11 Vict. c. 14. (d) Wilcox v. Steel, (1904) 73 L. J. Ch. 217, C. A. (e) Great Eastern R. Co. v. Goldsmid, (1884) 9 App. Cas. 927. (f) Mayor of Dorchester v. Ensor, (1869) L. R. 4 Ex. 335. (g) Yard v. Ford, (1670) 2 Wm. Saund. 172. |