judge's order so filed as aforesaid to be numbered, and the names, and additions, and descriptions of the now plaintiffs, as the persons giving the said order, and also the name, addition, and description of the now defendant Samuel Bowley as the person in whose favour the said judge's order had been given, together with the date of the making of the said judge's order, and of the filing of the said copy of the said judge's order, and the sum for which judgment was, pursuant to the said judge's order, to be entered up, to be respectively entered in an alphabetical list in a book in his said office, pursuant to the statutes in such case made and provided; whereby, upon such filing of the said copy of the said judge's order, and such entry in the said book, as aforesaid, it did then appear from, in, and by the said copy of the said judge's order so filed as aforesaid, and the said entry in the said book, that the said debt and costs in the said judge's order mentioned, and therein ordered to be paid as aforesaid, were still due and unpaid by the now plaintiffs to the now defendant Samuel Bowley, and that the said judge's order was an existing unsatisfied charge against the estate and property of the now plaintiffs in favour of the now defendant Samuel Bowley, to the amount of the debt and costs in the said judge's order mentioned: by means of *which said several premises, and by reason of its *545] appearing from the said copy of the said judge's order so filed as aforesaid, and from the said entry in the said book so induced to be made as aforesaid, that the debt and costs mentioned in the said judge's order were due and unpaid by the now plaintiffs to the now defendant Samuel Bowley, and that the said judge's order was an existing unsatisfied charge against the estate and property of the now plaintiffs in favour of the now defendant Samuel Bowley, to the amount of the debt and costs in the said judge's order mentioned, the credit and trade of the now plaintiffs, as iron manufacturers as aforesaid, had been and were greatly injured; and the now plaintiffs had been put to great inconvenience, costs, charges, and expenses in and about causing it to appear to Channell, B., one of the Barons of the said court, that the said debt and costs for which the said judge's order given as a security as aforesaid had been paid and satisfied as aforesaid, and in thereupon obtaining from the said Baron an order that a memorandum of satisfaction should be written upon the said copy of the said judge's order so filed as aforesaid, and in and about procuring the said officer of the Court of Queen's Bench, in pursuance of the said Baron's order, to write a memorandum of satisfaction upon the said copy of the said judge's order so filed as aforesaid: Claim, 5007.

To this declaration the defendants demurred,-the grounds of demurrer stated in the margin, being, "that the declaration does not allege that the defendants knew that the judge's order need not be filed, nor aver any want of reasonable or probable cause for filing the order; and that, the costs having been taxed and paid under the order,

it was necessary to file the order, to prevent its being avoided by the bankruptcy of the plaintiffs." Joinder.

*Honyman, in support of the demurrer.-The declaration [*546 discloses no cause of action. The order, in substance, was, that, upon payment of the debt, and costs to be taxed, the proceedings should be stayed. The 137th section of the 12 & 13 Vict. c. 106, expressly enacts "that every judge's order, made by consent, given, after the commencement of this act, by any such trader, defendant in any personal action, and whereby the plaintiff in such action shall be authorized forthwith after the making of such order, or at any future time, to sign or enter up judgment, or to issue or take out execution in such action, and whether such order shall be made subject to any defeasance or condition or not, in case the action in which such order shall be made shall be in the Court of Queen's Bench,—or, in case the action wherein the same is made shall be in any other court, a true copy of such order,-shall, together with an affidavit of the time of such consent being given, and a description of the residence and occupation of the defendant, be filed with the officer acting as clerk of the dockets and judgments in the said Court of Queen's Bench within twenty-one days after the making of such order, in like manner as a warrant of attorney in any personal action, and a cognovit actionem given by any defendant in any personal action, or copies thereof, and affidavits of the execution thereof, respectively, may be filed with the said clerk within the space of twenty-one days after such warrant of attorney or cognovit actionem shall have been executed, otherwise such judge's order, and any judgment signed or entered up thereon, and any execution issued or taken out on such judgment, shall be null and void to all intents and purposes whatever." If the want of filing makes the order a nullity, the taxation would be without justification, and the plaintiff in the action might be called upon to refund the amount of the allocatur. [WILLIAMS, *J.-Might you not have filed the order specially, [*547 with a memorandum showing that it had been satisfied?] The 137th section goes on to provide for the mode of entering satisfaction, -in the manner pointed out in the 3 G. 4, c. 39. It is submitted that the defendants have done all that was incumbent on them towards compliance with the act. Assuming, however, that the defendants were not bound to file the order, the question is whether they have incurred any legal liability by so doing. There is no averment here that the defendants were actuated by malicious motives, or that they acted without reasonable or probable cause, which, according to the opinions of Lord Mansfield and Lord Loughborough in Johnstone v. Sutton, 1 T. R. 544, is essential. Those learned judges say: “The essential ground of this action, (a) is, that a legal prosecution was carried on without a probable cause. We say this is emphatically the

(a) For a malicious prosecution.

essential ground; because every other allegation may be implied from this; but this must be substantively and expressly proved, and cannot be implied. From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied. From the most express malice, the want of probable cause cannot be implied. A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action."(a) And in Musgrove v. Newell, 1 M. & W. 582, 587,† Lord Abinger says: "There is no doubt as to the principles of law by which such cases are governed; and they cannot be better laid down than in the case of Johnstone v. Sutton. To support *an action of this kind, there must be both malice in the *548] defendant, and a want of reasonable and probable cause.' Flight v. Leman, 4 Q. B. 883 (E. C. L. R. vol. 45), 1 Dav. & M. 67, still further illustrates this principle. In De Medina v. Groves, 10 Q. B. 152 (E. C. L. R. vol. 59), it was held that no action lies against an execution-creditor or his attorney for issuing a fi. fa. endorsed to levy the whole sum recovered by a judgment, which, to the knowledge of both, has been partly satisfied by payments, unless malice and want of probable cause be alleged in the declaration, and proved: and this was affirmed by the Exchequer Chamber, on error,-10 Q. B. 172,-where Wilde, C. J., in delivering the judgment of the court, says: "The law allows every person to employ its process for the purpose of trying his rights, without subjecting him to any liability, unless he acts maliciously and without probable cause. The question arising upon this record, is, whether the action is maintainable without the usual averments of malice and want of probable cause. Even if there be a sufficient statement of malice in this declaration, there is no sufficient statement of the want of probable cause." The absence of an averment of the want of reasonable and probable cause, was also held fatal in Roret v. Lewis, 17 Law Journ. Exch. 99. The case of Gibbs v. Pike, 9 M. & W. 351,† comes very near to the present case. There, in a suit in equity, an order was made that one G. should pay in to the name of the Accountant-General, in trust in the cause, a certain sum admitted by his answer to have been the amount of the sale of a trust-fund; and the solicitor for the plaintiff in the suit registered it under the 1 & 2 Vict. c. 110, s. 19, and G. was in consequence prevented from disposing of his lands: and it was held that the registering of the order was not of itself a wrongful act, and that no action could be maintained for it without proof of malice. Lord Abinger there says: "No doubt *549] the plaintiff in this case has suffered great prejudice; *but he has done so in common with all others who are unfortunately placed in the same predicament with himself: and I cannot see, that, in (a) See Warren v. Matthews, 6 Mod. 73.

registering this order, the defendant Pike did more than it was proper for him to do as an attorney acting for the benefit of his client in a suit. in equity. If he were guilty of a mistake in unnecessarily registering this order, I do not see how it could operate to the injury of the plaintiff; for, the register refers to the order, which would speak for itself, and which any one is at liberty to inspect: and therefore, even assuming the argument to be well founded, that this was an order not proper to be registered, no one could make a mistake, or be misled by that circumstance; since, unless supported by the order, the registry is a nullity as to any effect it might have on the property of any person, and therefore cannot work any injury. On the other hand, if it is a matter of doubt whether or not a particular order of this kind ought to effect the benefit conferred by the late act, of binding the estate of the party, this would be a proper case to register it; for, here we have a trustee who admits, by his answer in Chancery, that the trust-funds were remaining in his hands, and the attorney had good reason to think that his real estate would be subject to the order of the court: but, even supposing him to be wrong in this view, still, if there were a reasonable doubt on the subject, there was a probable cause for his registering the order." So, here, the plaintiffs might have caused satisfaction to be entered on the order, and then any person inspecting the register would see that it no longer remained a charge against him: and, if there were any reasonable doubt whether the order ought to have been filed or not, there was probable cause for filing it. Churchill v. Siggers, 3 Ellis & B. 929 (E. C. L. R. vol. 77), is also an authority to show that malice and want of probable cause were essential to the maintenance of this action.

*Winston, contrà.(a)-The order in question clearly ought [*550 not to have been registered after the debt and costs had been paid. The preamble of the 3 G. 4, c. 39,-which statute is to be taken in pari materia with the 137th section of the 12 & 13 Vict. c. 106,-shows that the sole object of the legislature in requiring these orders to be filed, was, to prevent a bankrupt's property from being swept away by means of a secret execution. It is said that it was necessary to file this order, because the statute declares that the order unless filed shall be "null and void to all intents and purposes whatever;" and, inasmuch as the order was the only authority for the taxation of the costs, if that were void, the party might have been

(a) The points marked for argument on the part of the plaintiffs, were,— "That it sufficiently appears from the declaration that the defendants must have known that the judge's order need not be filed, and that they had no reasonable or probable cause for filing it: "And that it was unnecessary to file the order after the payment of the debt and costs, because, in case of the bankruptcy of the plaintiffs, the validity of either payment would not depend on the order or be avoided by the avoidance of the order, but would be good irrespective of any judge's order at all; and because the statute 12 & 13 Vict. c. 106, s. 137, which was intended to prevent the mischief of secret judges' orders for signing judgment or issuing execution, does not render it necessary to file any such order which has been already satisfied."

N. S., VOL. II.-24

called upon to refund the money. There clearly is no foundation for that; for, the transaction would be protected by the 133d section. The words " null and void to all intents and purposes whatever" are to receive a reasonable construction. In Bryan v. Child, 5 Exch. 368,† they were held to mean that the order shall be null and void, not as against the trader himself, but only as against his assignees: and there is nothing in the 137th section to take away the protection given by the 133d. In Farrow v. Mayes, 18 Q. B. 516, an order which had *551] *not been duly filed pursuant to the 12 & 13 Vict. c. 106, s. 137, was held void as against the assignees of the party giving it, and they recovered back the amount paid under the execution, as money had and received to their use. The rules of Hilary Term, 1853, were made after the decision of that case; and the 28th of those rules provides that "the costs of filing a judge's order for judgment against a trader defendant, under the bankrupt act, shall not be allowed unless specially ordered by the judge,"—showing that the filing is by no means a matter of course. [COCKBURN, C. J.-Why is a party to run the risk of the order being avoided for want of filing? Or, why should he be held liable to an action for being perhaps over cautious?] The gist of this action is malice: Reynolds v. Kennedy, 1 Wils. 232; Heath v. Heape, 26 Law J., M. C. 49. Here, the declaration sufficiently shows malice; and it was not necessary also to aver want of probable cause. In Saxon v. Castle, 6 Ad. & E. 653 (E. C. L. R. vol. 33), 1 N. & P. 661 (E. C. L. R. vol. 36),—which was an action for a malicious arrest,-the judgment was arrested, not because the declaration omitted to aver the absence of probable cause, but because it alleged only that the defendant had "wrongfully and injuriously" delivered the writ to the sheriff, not adding "maliciously." [WILLES, J.-If you choose to deviate from the customary form of pleading, and to set out the facts of the case, you must take care that they necessarily show want of reasonable and probable cause.] If the court are not of opinion that the judge's order ought to have been filed, the plaintiff would pray leave to amend. [CRESSWELL, J.-It is enough to say that it is not clear that the order should not have been filed.]

Honyman, in reply, was stopped by the court. COCKBURN, C. J.-I am of opinion that the judgment of the court upon this demurrer should be for the *defendants. The 137th *552] section of the 12 & 13 Vict. c. 106, provides that every judge's order made by consent given by a trader defendant, authorizing the plaintiff to sign or enter up judgment, or to issue or take out execution, shall be filed with the clerk of the dockets and judgments in the Court of Queen's Bench, within twenty-one days, otherwise such judge's order, and any judgment signed or entered up thereon, and any execution issued or taken out on such judgment, shall be null and void to all intents and purposes whatever. It seems to me to be unnecessary