Maclean, C.J:— This is an appeal from a judgment of this Court in its Original Jurisdiction dismissing with costs an action brought by the Appellant for malicious prosecution.

The Appellant and Respondents are both importers of piece goods. The Respondents have been accustomed, for a considerable time, to import these goods bearing, in addition to their name and a device of a bangle shaped like a two headed serpent, a mark consisting of nine peg tops arranged in a circle with certain numbers inside. Three of the numbers are 2300, 2315, 24300, the first two in use for ‘dhuties,’ and the last for ‘saries.’

The Appellant, whose firm appears to have carried on business for about one hundred years, and whose respectability and position has not been successfully assailed, imported similar goods with a mark consisting of ten star-apples arranged in a circle containing the numbers 1300, 1315, and 22300.

In February 1903 the Respondents wrote to the Appellant's firm complaining that their mark of ten reversed pears in a circle with the number 1300 was an imitation of their nine tops with 2300 mark. The Appellant replied by his solicitors that the marks differed in every particular and refused to discontinue the use of the mark. This was followed by a letter from the Respondents' solicitors demanding inter alia an account of all goods sold bearing the mark complained of, and a guarantee that the Appellant would not use the plate complained of. In the event of non-compliance “legal proceedings” were threatened. The Appellant's solicitors, in reply, declined to comply with the request, and stated that their client would defend any legal proceedings. It will thus be seen that there was a bonâ fide claim of right on the part of the Appellant to use his own mark.

Early in March the Respondents complained of the use by the Appellant of the mark, in combination with the figure 22300, and on March 7th, laid an information against the Appellant under sec. 486 of the Indian Penal Code, and secs. 6 and 7 of the Merchandise Marks Act and applied for a search-warrant. A search-warrant was issued, a summons granted, a charge under secs. 6 and 7 of the Merchandise Marks Act and sec. 486 of the Penal Code was framed.

The Appellant alleged that he had used his star apple marks since 1901; that his goods were well-known by the “star apple” (Jamrool) mark and the Respondents were by the “Peg Top” (Lattoo) marks, and that no one could mistake the fruit (Jamrool) for the peg-top (Lattoo); that the Respondents' goods bore the double serpent brand in addition to the peg tops, and that, using the devices in a circle, he had only followed the usual custom in the pice goods trade. The Appellant was acquitted by the Magistrate of charges under secs. 482-486, I.P.C, and secs. 6 and 7 of the Merchandise Marks Act. He thereupon sued the Respondents for malicious prosecution, and the learned Judge found that there was a want of reasonable and probable cause for the prosecution, but held that there was no evidence of malice, and on that ground dismissed the suit.

For the Appellant it has been contended that the evidence showed that the “proceedings of which he complained were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice.” [See per Bowen, L.J, Abrath v. The North-Eastern Railway Co.]. We have to consider whether the evidence, in all the circumstances of the case, supports this contention.

We agree with the finding of the Court of first instance that there was a want of reasonable and probable cause.

The evidence on this head has been read to us, it has been minutely criticised by Counsel on either side, and after a careful consideration we think it justifies the conclusion of that Court.

It has been held in actions of this nature that the want of reasonable and probable cause is in itself some evidence of malice, because, if the prosecutor knows that there is no reasonable and probable cause for the prosecution, it may be said that he cannot entertain an honest belief in the guilt of the accused. On that principle, therefore, in the present case, the Appellant starts with this in his favour, that, on the finding of the Court of first instance as to the want of reasonable and probable cause, a view which we share, there was some evidence of malice.

But he does not rest his case on an inference to be drawn from a want of reasonable and probable cause, but relies on admissions made by the Respondents' witnesses as showing that they were actuated not by a desire to set the Magistrate in motion to punish an offence against the penal provisions of the law, but were impelled by a wish to stop the sales of a rival trader. It is not an unimportant feature in the case that the parties were rival traders: had this been an action for libel and, the question of malice were important such a fact would be some evidence of malice.

Mr. Russell, an assistant in the Respondents' firm, says he considered that the goods sold in the market would interfere with the sale of the Respondents' goods, and that the Police prosecution was started to stop that interference, and that he considered a criminal prosecution a shorter and less expensive way of stopping the sale than civil proceedings. From this it would seem that the object was not the furtherance of justice, but the motive of stopping a rival trader from selling the goods as he claimed he was entitled to sell them. Mr. Giro, the Defendants' manager, says the object of the prosecution was to stop the Appellant selling goods bearing the marks to which the Defendants objected—and he also says that his firm decided to prosecute, because the Appellant disputed by a lawyer's letter their rights and he admits that he did not enquire what other marks were on the market before prosecuting, though he says he would have made more enquiries had the alleged counterfeit marks been used by a European instead of a native firm. If they had made proper enquiries they would have ascertained that there were many, perhaps from 20 to 30 more or less similar marks on the market, though it is difficult to suppose that Messrs Ralli, from their position in the trade, could have been ignorant of this fact. It almost looks, from the evidence of Mr. Giro, as if the Defendants determined to prosecute because the Plaintiff had the temerity to reply through his solicitors, and would not admit Messrs Ralli's rights.

We think it is clear on this evidence that the prosecution was instituted with the object of stopping the sale by the Appellant of goods bearing the marks in question, in other words the prosecutors sought by means of the criminal law to obtain, as against the Appellant, that relief to which they would have been entitled had they been successful in a civil action claiming an injunction and damages.

But there is another circumstance which, taken with the admissions of the two witnesses to which we have referred, becomes very material and that is, that at the time when the prosecution was instituted, the Respondents had in their possession letters from the Appellant in which he did not deny his user of the marks in question, but openly asserted that they were no infringement of the Respondents' marks. There was no attempt at concealment on his part, nor was any excuse set up. The Plaintiff only insisted upon what he conceived to be his legal rights. These letters appear not to have been shown to the Magistrate. If they had been, and the Magistrate had come to the conclusion, on an inspection of the marks and a perusal of the correspondence, that the claim set up by the Appellant was a bonâ fide claim, and to that conclusion he would have been bound to come, he would probably have refused to issue either the summons or the search-warrant. The latter was executed during a busy part of the day, and subjected the Appellant to much humiliation.

The circumstance that this material correspondence was not disclosed to the Magistrate, even if it were not intentionally suppressed, makes it difficult for us to conclude that the prosecutor honestly believed that the accused intended to offend against the penal provisions of the law.

The Respondents may have had an honest belief in the soundness of their right to prevent the Appellant selling goods bearing the mark complained of, but the existence of that belief is not sufficient of itself to justify the institution of criminal proceedings. It might justify the institution of a suit claiming an injunction to restrain the Plaintiffs user of the trade marks, for to that, a claim of right, however bonâ fide, will be no answer, unless it is established.

In the present case the prosecution was instituted without reasonable and probable cause, and the Defendants' witnesses have disclosed the real object of prosecution, and why it was initiated. They have acted under a desire to obtain the relief which is ordinarily obtained in a civil suit by injunction and, when they applied for the summons, they were aware that the Plaintiff was asserting a claim which, if made bonâ fide, ought to have ousted the jurisdiction of the Criminal Court. Notwithstanding they obtain a summons without disclosing the existence of this claim to the Magistrate, and they obtain a warrant to search the premises of the Appellant who had never denied that he had in his possession and was selling goods bearing the disputed marks. The Judge of first instauce characterises this proceeding as harsh. We entirely agree. It was unnecessary, for the Plaintiff was concealing nothing, it placed him in a position of great indignity and is suggestive of a vindictive feeling because the Plaintiff refused to yield to the Defendants' demands. In this connetiou we cannot forget the distinction which Mr. Giro draws between a European and a native firm. These circumstances lead us to the conclusion that the prosecutors acted maliciously, and that their real object was to crush a rival trader under the pressure of the criminal law.

For these reasons we are unable to agree in the conclusion to which the learned Judge of the Court of first instance has come, and we allow the appeal.

We will hear the argument on the question of damages on the first day after the vacation.

Sale, J.— I agree.

Harington, J.— I agree.

Messrs Leslie & Hinds, Attorneys for the Appellants.

Messrs Sanderson & Co., Attorneys for the Respondents.

A.N.C