CHAPTER V

MALICIOUS PROSECUTION AND ABUSE OF PROCESS

HALBERSTADT _v._ NEW YORK LIFE INSURANCE CO. COURT OF APPEALS, NEW YORK, JANUARY 5, 1909. _Reported in 194 New York Reports, 1._

The action is brought to recover damages for an alleged malicious prosecution claimed to have been instituted by the respondent against the appellant in Mexico. It is in the complaint, amongst other things, alleged that the respondent through its agent in the Criminal Court of the city of Mexico charged the appellant with the crime of embezzlement “and thereupon and in and by virtue of said charge and the institution of said criminal proceedings a warrant was issued by said court for the arrest of the plaintiff (in this action),” and that thereafter “the said criminal proceedings for the punishment of said plaintiff were dismissed and extinguished and the said prosecution was thereby wholly determined ... in favor of the plaintiff.”

The respondent, by its second defence, which is challenged here for insufficiency, alleged, in substance, that before the warrant referred to in the complaint could be served upon the appellant and before he could be apprehended, “he left the Republic of Mexico and thereafter continuously remained absent ... and by such absence avoided being arrested under such warrant, or being tried ... but remained absent from said Republic of Mexico for a sufficient period of time to enable him to procure the dismissal of said proceedings under the law of Mexico on account solely of the lapse of time,” and, conversely, that said criminal proceedings “were not dismissed on account of a determination of the case in favor of the plaintiff on the trial thereof on the merits, nor was it dismissed for failure to prosecute said case except as above set forth, nor was it dismissed on account of any withdrawal of the complaint.”

The plaintiff demurred to this defence and also to the third defence which was not materially different from the second. The demurrer was sustained at Special Term. This judgment was reversed by the General Term, and the plaintiff now appeals.[370]

HISCOCK, J. The respondent’s first reply to the appellant’s attack upon its answer is of the _tu quoque_ nature, it insisting that the complaint is as deficient in the statement of a good cause of action as the answer is alleged to be in the statement of a good defence. This contention is based upon the fact that the complaint does not allege any act subsequent or in addition to the mere issuance of a warrant in the criminal proceeding complained of; does not allege that the warrant was ever executed in any way whatever, or that the appellant was ever actually brought into said proceedings either by force of process or voluntary appearance. Therefore, the question is presented whether the mere application for and issuance to a proper officer for execution of a warrant on a criminal charge may institute and constitute such a prosecution as may be made the basis of a subsequent civil action by the party claimed to have been injured. In considering this question we must keep in mind that the facts alleged in the complaint, and in the light of which it is to be determined, do not show, as the answer does, that the defendant in those proceedings was beyond the jurisdiction of the court.

This question does not seem to have been settled by any decision which we regard as controlling on us.

The respondent cites the following authorities deciding it in the negative: Newfield _v._ Copperman, 15 Abb. Pr., N. S., 360; Lawyer _v._ Loomis, 3 T. & C. 393; Cooper _v._ Armour, 42 Fed. 215; Heyward _v._ Cuthbert, 4 McCord, 354; O’Driscoll _v._ M’Burney, 2 Nott & McCord, 54; Bartlett _v._ Cristliff, 14 Atl. R. 518; Gregory _v._ Derby, 8 C. & P. 749; Paul _v._ Fargo, 84 App. Div. 9.

The case last cited was concerned with an alleged malicious prosecution by means of civil process and what was there said must be interpreted with reference to that fact, and thus interpreted it is not applicable here. Of the other cases, only two, Heyward _v._ Cuthbert and Cooper _v._ Armour, considered the question here involved with sufficient thoroughness to require brief comment. An examination will show that the decision in each of them rested in whole or part on a principle not, as I believe, adopted in this state. In the former it was said that “The foundation of this sort of action is the wrong done to the plaintiff by the direct detention or imprisonment of his person.” As I think we shall see hereafter, that is not a correct statement of the law in this state. In the other case it was stated, “The only injury sustained by the person accused, when he is not taken into custody, and no process has been issued against him, is to his reputation; and for such an injury the action of libel or slander is the appropriate remedy, and would seem to be the only remedy.” I think that this doctrine, which if correct would provide an adequate remedy outside of an action for malicious prosecution for an injured party in a case where no warrant had been executed, also is opposed to the weight of authority both in this state and elsewhere hereafter to be referred to.

The authorities holding to the contrary on the question above stated, and that the execution of the warrant is not necessary to lay the foundation for an action of malicious prosecution, are: Addison on Torts, vol. 2 [4th Eng. ed.], p. 478; Newell on Malicious Prosecution, sect. 30; Stephens on Malicious Prosecution, Am. ed., sect. 8; Stapp _v._ Partlow, Dudley’s Repts., (Ga.) 176; Clarke _v._ Postan, 6 C. & P. 423; Fezale _v._ Simpson, 2 Ill. 30; Britton _v._ Granger, 13 Ohio Cir. Ct. Repts. 281, 291; Holmes _v._ Johnson, Busbee’s L. R. 44; Coffey _v._ Myers, 84 Ind. 105.

And to the like effect in the absence of special statutory provisions in Swift _v._ Witchard, 103 Ga. 193.

Thus it is apparent, as before stated, that there is no controlling decision on this question and we are remitted to a search for some general considerations which may be decisive. It seems to me that these may be found and that they favor the view that a prosecution may be regarded as having been instituted even though a warrant has not been executed.

The first one of these considerations is found in the rule applied in civil actions and proceedings to an analogous situation. There it has many times been held that the mere issue of various forms of civil process for service or other execution is sufficient independent of statute to effect the commencement of a case or proceeding. Carpenter _v._ Butterfield, 3 Johns. Cases, 146; Cheetham _v._ Lewis, 3 Johns. 42; Bronson _v._ Earl, 17 Johns. 63; Ross _v._ Luther, 4 Cowen, 158; Mills _v._ Corbett, 8 How. Pr. 500; Hancock _v._ Ritchie, 11 Ind. 48, 52; Howell _v._ Shepard, 48 Mich. 472; Webster _v._ Sharpe, 116 N. C. 466, 471.

I see no reason why a similar rule should not be applied to criminal proceedings, at least for the purposes of such an action as this.

Then there is another reason resting on justice which seems to me to lead us to adopt this conclusion. In opposition to what was said in the South Carolina case already referred to, the sole foundation for an

## action of malicious prosecution is not “the wrong done to the plaintiff

by the direct detention or imprisonment of his person.” In an action for false imprisonment that would be so. But in an action of the present type, the substantial injury for which damages are recovered and which serves as a basis for the action may be that inflicted upon the feelings, reputation and character by a false accusation as well as that caused by arrest and imprisonment. This element “indeed is in many cases the gravamen of the action.” Sheldon _v._ Carpenter, 4 N. Y. 579, 580; Woods _v._ Finnell, 13 Bush Repts. 628; Townsend on Slander, sec. 420; Wheeler _v._ Hanson, 161 Mass. 370; Gundermann _v._ Buschner, 73 Ill. App. 180; Lawrence _v._ Hagerman, 56 Ill. 68; Davis _v._ Seeley, 91 Iowa, 583.

But no matter how false and damaging the charge may be in a criminal proceeding upon which a warrant may be issued, damages for the injury caused thereby cannot under any ordinary circumstances be recovered in an action for libel or slander. Howard _v._ Thompson, 21 Wend. 319, 324; Woods _v._ Wiman, 47 Hun, 362, 364; Sheldon _v._ Carpenter, _supra_; Dale _v._ Harris, 109 Mass. 193; Gabriel _v._ McMullin, 127 Iowa, 427; Hamilton _v._ Eno, 81 N. Y. 116; Newell on Malicious Prosecution, sec. 10.

Therefore, it follows that a person who has most grievously injured another by falsely making a serious criminal accusation against him whereon a warrant has been actually issued, may escape all liability by procuring the warrant at that point to be withheld unless an action for malicious prosecution will lie. It seems to me that under such circumstances we should hold that such action will lie, if for no other reason than to satisfy that principle of law which demands an adequate remedy for every legal wrong.[371]...

VANN, J. I concur in the result because there was merely an attempt to prosecute with no actual prosecution. The Mexican court did not acquire jurisdiction of the person of the plaintiff, for he was not arrested, nor was process or notice of any kind served upon him. He was not brought into court and the prosecution could not end because it was never begun. He could not be a party defendant until he was notified or voluntarily appeared. He was threatened with prosecution, but neither his person nor his property was touched. There can be no prosecution unless knowledge thereof is brought home to the alleged defendant in some way. If there had been a prosecution commenced the crime could not have outlawed during the defendant’s absence, as is admitted of record. While in civil actions, in order to arrest the Statute of Limitations, “an attempt to commence an action, in a court of record, is equivalent to the commencement thereof,” still the attempt goes for naught unless followed by service, actual or constructive, within sixty days. (Code Civil Proc. § 399.) The rule was similar at common law. Although, in order to prevent injustice, an action was deemed to be commenced by the delivery of process for service, it was never treated as effectual for any purpose unless actual service was subsequently made. The authorities cited in the prevailing opinion illustrate this proposition.

In the absence of controlling authority, which it is conceded does not exist, I favor restricting rather than enlarging the scope of the

## action. This accords with the general position of the court upon the

subject.

GRAY, HAIGHT and CHASE, JJ., concur with HISCOCK, J.; CULLEN, CH. J., and WILLARD BARTLETT, J., concur with VANN, J.

_Order affirmed._[372]

CHAMBERS _v._ ROBINSON AT NISI PRIUS, CORAM RAYMOND, C. J., HILARY TERM, 1726. _Reported in 2 Strange, 691._

An action for a malicious prosecution of an indictment for perjury.

Upon the trial it appeared, the perjury was ill-assigned, so that the now plaintiff could not have been convicted; and that exception was taken to it by the judge, and he was acquitted without any examination of witnesses. But the Chief Justice held the action lay, though it was a faulty indictment, relying upon the case of Jones _v._ Gwynn, where the distinction in Salk. 13 was denied, and held by the whole court that the action would lie, though the indictment was bad; a bad indictment serving all the purposes of malice, by putting the party to expense, and exposing him, but it serves no purpose of justice in bringing the party to punishment if he be guilty.[373]

BYNE _v._ MOORE IN THE COMMON PLEAS, NOVEMBER 13, 1813. _Reported in 5 Taunton, 187._[374]

This was an action for a malicious prosecution in indicting the plaintiff for an assault and battery. The only evidence on the part of the plaintiff being, that the bill was preferred and not found, Lord Chief Baron Macdonald who tried the cause, nonsuited him.[375]

BEST, Serjt., had obtained a rule _nisi_ to set aside that nonsuit and have a new trial; against which

_Shepherd_, Serjt., showed cause.

MANSFIELD, C. J. I feel a difficulty to understand how the plaintiff could recover in the present action, wherein he could recover no damages, because he clearly has not proved that he has sustained any: I can understand the ground upon which an action shall be maintained for an indictment which contains scandal, but this contains none, nor does any danger of imprisonment result from it: this bill was a piece of mere waste paper. All the cases in Buller’s Nisi Prius, 13, are directly against this action, for the author speaks of putting the plaintiff to expense, and affecting his good fame, neither of which could be done here. If this action could be maintained, every bill which the grand jury threw out would be the ground of an action. The judge too might certify in this cause against the costs, if the damages had been under 40s.

HEATH, J., concurred.

CHAMBRE, J. It would be a very mischievous precedent if the action could be supported on this evidence.

_Rule discharged._[376]

STEWARD _v._ GROMETT IN THE COMMON PLEAS, NOVEMBER 11, 1859. _Reported in 7 Common Bench Reports, New Series, 191._

ERLE, C. J.[377] I am of opinion that our judgment in this case must be for the plaintiff. It is an action against the defendant for falsely and maliciously, and without reasonable or probable cause, making information on oath before a magistrate that the plaintiff had used threatening language to him, whereby he went in fear of bodily harm, and so procuring a warrant under which the plaintiff was incarcerated in the castle at Swaffham, for want of sureties, for a period of six months. It is admitted on the pleadings that the defendant did falsely and maliciously, and without reasonable or probable cause, procure that wrong to be done to the plaintiff; and the question is whether the declaration shows enough to entitle the plaintiff to maintain an action for that wrong. This is in some sort an action for a malicious prosecution; and it has been contended by Mr. Couch, for the defendant, that the case falls within the ordinary rule applicable to such actions, that the plaintiff must show that the proceeding terminated in his favor, and that no action lies where they are shown to have terminated against the accused. But I am of opinion that the distinction taken by Mr. Keane removes that objection, and shows that that rule does not apply to this case, because the proceeding before the magistrate being founded upon a statement which the party charged is not at liberty to controvert, is an _ex parte_ proceeding, and, although it attains the result which is sought, it is not a judgment, but is in the nature of a writ of process. It is not like the case of an application to a magistrate upon a matter on which he is to exercise his discretion: there, the injury sustained by the party is the act of the law, and therefore no action lies unless the person who sets the magistrate in motion is actuated by malice. But here the law was directly put in motion by the defendant against the plaintiff, and, it must be assumed, falsely and maliciously and without reasonable or probable cause. If a party goes before a judge, under the 1 & 2 Vict. c. 110, with an affidavit of debt for the purpose of procuring a capias to arrest his debtor, upon a suggestion that he is going abroad, and that is done falsely and maliciously, and without reasonable or probable cause, an action lies. So, if a party go to the Court of Queen’s Bench, and maliciously exhibit articles of the peace against another, supported by a false oath that such other had used threats against him, his statement being incontrovertible, it is clear to my mind that an action would lie. Can it make any difference that here the proceeding took place before a magistrate? It seems to me that the two proceedings are quite analogous: the same remedy is sought, only by a different mode. As in the one case the truth of the articles cannot be controverted, so in the other the statement made before the magistrate upon oath cannot be contradicted by the accused. There is not the least sign of authority to show that the magistrate had any discretion, so that the plaintiff might have had a decision in his favor. In Burn’s Justice, sureties of the peace are treated as being subject to precisely the same rule as articles of the peace at the sessions or in the Court of Queen’s Bench, in respect of their truth being incontrovertible. And there is strong reason for assuming that to be the true state of the law; the fact of there being no authority exactly in point as to sureties of the peace, may well be accounted for by supposing that no one has entertained doubt enough upon it to take the opinion of any court. But as far as authority goes, The King _v._ Doherty, 13 East, 171, and Venafra _v._ Johnson, 10 Bing. 301, 3 M. & Sc. 807, are in favor of the plaintiff. In the latter case, Johnson made precisely the same application to the justices as was made here, and they exercised a precisely analogous jurisdiction, the only difference being that there the magistrates held the plaintiff to bail for his appearance at the sessions, whereas here the magistrate at once committed the plaintiff to jail until he should find the required sureties: and it was there decided by implication that the proceeding before the magistrate was incontrovertible; for, the court held that the judge was wrong in not leaving it to the jury to say whether or not the defendant believed the menaces when he put the law in motion against the plaintiff. If Mr. Couch’s argument to-day is right, the counsel and the court in that case were all wrong. Upon principle, therefore, and upon authority, it seems to me that the argument for the plaintiff in this case ought to prevail.

_Judgment for the plaintiff._[378]

FISHER _v._ BRISTOW IN THE KING’S BENCH, JUNE 15, 1779. _Reported in 1 Douglas, 215._

## Action for a malicious presentment (for incest), in the ecclesiastical

court of the archdeaconery of Huntingdon. Demurrer to the declaration and cause assigned, that it was not stated how the prosecution was disposed of, or that it was not still depending. The court were clearly of opinion, that the objection was fatal, and said it was settled, that the plaintiff in such an action, must show the original suit, wherever instituted, to be at an end; otherwise he might recover in the action, and yet be afterwards convicted on the original prosecution.

_Judgment for the defendants._[379]

BROWN _v._ RANDALL SUPREME COURT, CONNECTICUT, MARCH TERM, 1869. _Reported in 36 Connecticut Reports, 56._

CARPENTER, J.[380] The defendants complained to a grandjuror of the town of Norwich against the plaintiff, charging him with a breach of the peace, and induced the grandjuror to enter a complaint to a magistrate in due form, whereupon a warrant was issued, and the plaintiff arrested and held to answer the complaint. After remaining in custody several hours, the magistrate informed the defendants and their counsel, who acted for the grandjuror, that he was ready to proceed with the trial. The defendants sent word to the court that they should prosecute the complaint no further, and thereupon the plaintiff was discharged. It is alleged in the declaration that this proceeding was malicious and without probable cause, and the jury have found that allegation to be true.

The important question in this case is whether, upon the facts alleged and proved, the plaintiff is entitled to recover. All the material averments seem to have been proved except the allegation of acquittal. That was not proved, and the court charged the jury that it was not necessary. The defendants complain of this, as they rely upon the non-existence of that fact as a complete defence to the action. Decisions of courts of the highest respectability, both in England and in this country, justify this claim. It does not appear that this question has ever been directly determined by this court. We are referred to the case of Monroe _v._ Maples, 1 Root, 553. But no such question arose in that case. It simply decided that a person convicted of the crime charged against him could not maintain the action. We are therefore at liberty to determine the question upon principle.

The grounds of this action are, the malice of the defendant, the want of probable cause, and an injury sustained by the plaintiff. 1 Swift’s Digest, 491. The conviction of the plaintiff is justly considered as conclusive evidence of probable cause. The authorities referred to virtually decide—without sufficient reason as it seems to us—that the termination of the prosecution by a _nolle prosequi_, or abandonment, was equally conclusive upon that question.

One reason given for this is, that no termination of the prosecution in favor of the accused short of an acquittal will discharge the crime or be a bar to a new indictment. This reasoning is not satisfactory. The possibility that the plaintiff may be again prosecuted for the same alleged offence is not inconsistent with an entire want of probable cause in the first prosecution. This reason seems to have been disregarded in Sayles _v._ Briggs, 4 Met. 421. The complainant abandoned the prosecution against the plaintiff after a trial, and the magistrate, who could only bind over or discharge the person accused, discharged him. The court held that the action could be maintained. Yet such a discharge could be no bar to a subsequent prosecution.

Another reason given is, that the common law will not favor actions in behalf of a party criminally prosecuted against one who has acted as complainant in behalf of the public, and ostensibly for the public good; it therefore requires that the plaintiff in such an action shall begin by offering the verdict of a jury who have considered the cause on its merits. This may be a very proper caution to a jury, and a matter which ought to be considered by them in weighing evidence, but we see no sufficient reason for adopting it as an absolute rule of law, the effect of which is, in some cases at least, to shut out the truth. No such rule has been adopted in this State, and we think it is contrary to the prevailing notions of the profession. Judge Swift, in his Digest, vol. 1, p. 491, states five different modes of terminating a prosecution in favor of the accused which will lay the foundation for this action, and one of them is, “when the prosecution has been abandoned and given up.”

In Parker _v._ Farley, 10 Cush. 279, Shaw, C. J., in speaking of the rule under consideration, says: “Were this a new and original question, to be decided upon principle, it might be doubted whether it would be just and wise to establish this as an inflexible rule of practice.”

On the whole we think it wise and safe, when a prosecution has been abandoned, as this was, without any arrangement with the accused, and without any request from him that it should be so abandoned, to leave the question of probable cause to the jury.

The charge of the court was in harmony with these views, and we do not advise a new trial.

In this opinion the other judges concurred.[381]

FOSHAY _v._ FERGUSON SUPREME COURT, NEW YORK, MAY, 1846. _Reported in 2 Denio, 617._

_By the Court_, BRONSON, C. J.[382] There was evidence enough in the case to warrant the jury in finding, that the defendant set the prosecution in motion from a bad motive. But all the books agree, that proof of express malice is not enough, without showing also the want of probable cause. Probable cause has been defined, a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged. Munns _v._ Nemours, 3 Wash. C. C. 37. However innocent the plaintiff may have been of the crime laid to his charge, it is enough for the defendant to show, that he had reasonable grounds for believing him guilty at the time the charge was made. In Swain _v._ Stafford, 3 Iredell, N. C. 289, and 4 id. 392, the action was brought against the defendant, who was a merchant, for charging the plaintiff with stealing a piece of ribbon from his store. At the time the complaint was made, the defendant had received such information as induced a belief of the plaintiff’s guilt; and although it afterwards turned out that the property had not been taken by any one, and was never out of the defendant’s possession, it was held that an action for malicious prosecution could not be supported. The doctrine that probable cause depends on the knowledge or information which the prosecutor had at the time the charge was made, has been carried to a great length. In Delegal _v._ Highley, 3 Bing. N. C. 950, which was an action for maliciously, and without probable cause, procuring a third person to charge the plaintiff with a criminal offence, the defendant pleaded specially, showing that the plaintiff was guilty of the offence which had been laid to his charge; and the plea was held bad in substance, because it did not show that the defendant, at the time the charge was made, had been informed, or knew the facts on which the charge rested. The question of probable cause does not turn on the actual guilt or innocence of the accused; but upon the belief of the prosecutor concerning such guilt or innocence. Seibert _v._ Price, 5 Watts & Serg. 438.

Without going into a particular examination of the evidence in this case, it is enough to say that the defendant, at the time he went before the grand jury had strong grounds for believing that the plaintiff had stolen the cattle: and, so far as appears, not a single fact had then come to his knowledge which was calculated to induce a different opinion. Although the plaintiff was in fact innocent, there would be no color for this action, if it were not for the fact that the defendant settled the matter with the plaintiff, instead of proceeding against him for the supposed offence. If the parties intended the settlement should extend so far as to cover up and prevent a criminal prosecution, the defendant was guilty of compounding a felony. And the fact that he made no complaint until the plaintiff commenced the two suits against him, goes far to show that he was obnoxious to that charge; and that he was governed more by his own interest, than by a proper regard to the cause of public justice. But however culpable the defendant may have been for neglecting his duty to the public, that cannot be made the foundation of a private action by the plaintiff. Although the defendant may have agreed not to prosecute, and the complaint may have been afterwards made from a malicious feeling towards the plaintiff, still the fact of probable cause remains; and so long as it exists, it is a complete defence. There is enough in the defendant’s conduct to induce a rigid scrutiny of the defence. But if upon such scrutiny it appear, that he had reasonable grounds for believing the plaintiff guilty, and there is nothing to show that he did not actually entertain that belief, there is no principle upon which the action can be supported.

On a careful examination of the case, I am of opinion that the verdict was clearly wrong. But as the charge of the judge is not given, we must presume that the case was properly submitted to the jury; and a new trial can therefore only be had on payment of costs.

_Ordered accordingly._[383]

CLOON _v._ GERRY SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE, 1859. _Reported in 13 Gray, 201._

SHAW, C. J.[384] In an action for a malicious prosecution against one, in the name of the Commonwealth, the averment on the part of the plaintiff, that the complaint was made without reasonable cause, lies at the foundation of the suit; and although it is in form a negative proposition, it is incumbent on the plaintiff to establish it by satisfactory proof. This kind of suit, by which the complainant in a criminal prosecution is made liable to an action for damages, at the suit of the person complained of, is not to be favored; it has a tendency to deter men who know of breaches of the law, from prosecuting offenders, thereby endangering the order and peace of the community. Absence of probable cause is essential; from want of probable cause, malice may be inferred; but from malice, even if express, want of probable cause cannot be inferred.

An ultimate acquittal of the offence charged, though necessary to be proved, is but a short step towards the maintenance of an action for malicious prosecution. Malice, and absence of any reasonable and probable cause, must also concur with an acquittal.

In the present case, the prosecution complained of was a complaint before a justice of the peace by whom the plaintiff was convicted; from this judgment he appealed, and on trial in the Court of Common Pleas was acquitted.

On the trial, it appeared from the pleadings and evidence, and was admitted, that the complaint was for an offence which the magistrate had, by law, jurisdiction to hear, decide and render a judgment in; also, that neither in the trial before the magistrate, nor in the trial in the Common Pleas, was the defendant a witness. On this case, the court ruled that such a conviction was proof of probable cause; or, to state the proposition with more precision, it negatived the plaintiff’s leading and essential averment that the complaint was made without reasonable and probable cause, and that, for this reason, the action could not be maintained, and thereupon ordered a nonsuit.

The court are of opinion that this direction was right. The question of reasonable and probable cause, when the facts are not contested, is a question of law. And when the plaintiff had been convicted by a tribunal, constituted by law, with authority to render a judgment, which, if not appealed from, would have been conclusive of his guilt, and such judgment is not impeached on the ground of fraud, conspiracy or subornation in its procurement, although afterwards reversed on another trial, it constitutes sufficient proof that the prosecution was not groundless, and to defeat an action for malicious prosecution. The case of Whitney _v._ Peckham, 15 Mass. 243, is directly in point, and we think it is well sustained by authorities.

It is said that the question of probable cause is a mixed question of law and fact, and that the facts should have been left to the jury. Here no fact material to the question was controverted, and then there was nothing to leave to a jury.

_Exceptions overruled_.[385]

RAVENGA _v._ MACKINTOSH IN THE KING’S BENCH, MAY 8, 1824. _Reported in 2 Barnewall & Cresswell, 693._

This was an action for a malicious arrest: plea not guilty. At the trial before Abbott, C. J., at the London sittings after last Hilary term, the jury was directed to find a verdict for the defendant, if they were of opinion that, at the time when the arrest was made, Mackintosh acted truly and sincerely upon the faith of the opinion given by his professional adviser, actually believing that Ravenga was personally liable, and that he might be lawfully arrested, and that he (Mackintosh) could recover in that action; but to find for the plaintiff, if they were of opinion that Mackintosh believed that he must fail in the

## action, and that he intended to use the opinion as a protection, in case

the proceedings were afterwards called in question; and that he made the arrest, not with a view of obtaining his debt, but to compel the plaintiff to sanction the debentures. The jury found a verdict for the plaintiff, with £250 damages.[386]

The _Attorney-General_ now moved for a new trial.

BAYLEY, J. I have no doubt that in this case there was a want of probable cause. I accede to the proposition, that if a party lays all the facts of his case fairly before counsel, and acts _bona fide_ upon the opinion given by that counsel (however erroneous that opinion may be), he is not liable to an action of this description.[387] A party, however, may take the opinions of six different persons, of which three are one way and three another. It is therefore a question for the jury, whether he acted _bona fide_ on the opinion, believing that he had a cause of action. The jury in this case have found, and there was abundant evidence to justify them in drawing the conclusion, that the defendant did not act _bona fide_, and that he did not believe that he had any cause of action whatever. Assuming that the defendant’s belief that he had a cause of action would amount to a probable cause, still, after the jury have found that he did not believe that he had any cause of action whatever, the judge would have been bound to say, that he had not reasonable or probable cause of action.

_Rule refused._[388]

MITCHELL _v._ JENKINS IN THE KING’S BENCH, NOVEMBER 11, 1833. _Reported in 5 Barnewall & Adolphus, 588._

This was an action on the case for a malicious arrest.

At the trial, before Taunton, J., at the last Summer Assizes for the county of Devon, it appeared, that the plaintiff was indebted to the defendant in the sum of £45, for one year’s composition of tithe; and that the sum of £16 5_s._ was due to the plaintiff from the defendant; that the defendant, under the advice of his attorney, arrested the plaintiff for the whole sum of £45, instead of for the balance, after deducting the sum of £16 5_s._ The defendant, on finding out that he was mistaken in point of law, and that he should only have arrested for the balance, discontinued the action.

There was no evidence at all of malice in fact; but the learned judge told the jury, that, as the plaintiff ought not, by law, to have been arrested for more than the balance, the law implied malice; and that the only question for their consideration was, the amount of damages; upon which a verdict was found for the plaintiff for £20.

A rule had been obtained, in a former term, calling on the plaintiff to show cause why that verdict should not be set aside, and a new trial had;[389] against which—

_Follett_ now showed cause.

_Coleridge_, Serjt., and _Bere_, contra.

DENMAN, C. J. Every arrest by a creditor for more than is due, is, in some sense, a wrongful act. By statute, if it be made without reasonable or probable cause, though with an entire absence of malice, the party arresting may be deprived of his costs, and at common law, if the party arrested has suffered damage to a greater extent than those costs, he may, if the arrest was also made maliciously, bring his action on the case. In that action, however, it is still incumbent on the plaintiff to allege and to prove malice as an independent fact; though it may in some instances be fairly inferred by the jury from the arrest itself, and the circumstances under which it is made, without any other proof. They, however, are to decide, as a matter of fact, whether there be malice or not. I have always understood the question of reasonable or probable cause on the facts found to be a question for the opinion of the court, and malice to be altogether a question for the jury.[390] Here, the question of malice having been wholly withdrawn from the consideration of the jury, there ought to be a new trial.

PARKE, J. I am also of opinion that there ought to be a new trial, on the ground that the learned judge withdrew altogether from the consideration of the jury the question of malice. I have always understood, since the case of Johnstone _v._ Sutton, 1 T. R. 510, which was decided long before I was in the profession, that no point of law was more clearly settled than that in every action for a malicious prosecution or arrest, the plaintiff must prove what is averred in the declaration, viz. that the prosecution or arrest was malicious and without reasonable or probable cause: if there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable; but when there is no reasonable or probable cause, it is for the jury to infer malice from the facts proved. That is a question in all cases for their consideration, and it having in this instance been withdrawn from them, it is impossible to say whether they might or might not have come to the conclusion that the arrest was malicious. It was for them to decide it, and not for the judge. I can conceive a case where there are mutual accounts between parties, and where an arrest for the whole sum claimed by the plaintiff would not be malicious; for example, the plaintiff might know that the set-off was open to dispute, and that there was reasonable ground for disputing it. In that case, though it might afterwards appear that the set-off did exist, the arrest would not be malicious. The term “malice” in this form of action is not to be considered in the sense of spite or hatred against an individual, but of _malus animus_, and as denoting that the party is actuated by improper and indirect motives.[391] That would not be the case where, there being an unsettled account, with items on both sides, one of the

## parties, believing _bona fide_ that a certain sum was due to him,

arrested his debtor for that sum, though it afterwards appeared that a less sum was due; nor where a party made such an arrest, acting _bona fide_ under a wrong notion of the law and pursuant to legal advice. The question of malice having in this case been wholly withdrawn from the jury, I think the rule for a new trial must be made absolute.

_Rule absolute._[392]

HADDRICK _v._ HESLOP IN THE QUEEN’S BENCH, TRINITY TERM, 1848. _Reported in 12 Queen’s Bench Reports, 267._

Case for maliciously and without reasonable and probable cause indicting the plaintiff for perjury. Averment that the plaintiff was tried and acquitted, and judgment given that he should depart without day, as by record appeared, &c.

Plea, by Heslop: Not guilty. Issue thereon.

On the trial, before Wightman, J., at the Durham Summer Assizes, 1847, it was shown, on the part of the plaintiff, that the now defendant Heslop received the account of Haddrick’s evidence from another party, and then stated that he would indict Haddrick for perjury; and that his informant thereupon expressed an opinion that there was no ground for such indictment; on which Heslop said that, even if there were not sufficient grounds for the indictment, it would tie up the mouths of Hinde and Haddrick for a time, and that he would move for a new trial. No witnesses were called for the defence. The learned judge asked the jury whether Heslop believed that there was reasonable ground for indicting, and whether he had indicted from malice. The jury answered that Heslop did not so believe; and, as to the malice, they said that they thought that the word “malice” was strong, but that they thought the defendant had indicted from an improper motive. The learned judge then decided that the indictment was without reasonable or probable cause, and told the jury that they might infer malice from the improper motive. Verdict for the plaintiff.

In Michaelmas term (November 5th), 1847,

_Bliss_ moved for a new trial, on the grounds of misdirection.[393]

First: the question of the defendant’s belief ought not to have been left to the jury. It is for the judge to decide whether there was reasonable and probable cause. It is true that he may, in order to decide this, obtain the opinion of the jury upon facts which, when found, he himself is to act upon in deciding as to the reasonableness and probability. But belief is not such a fact: it is material as to the malice, but there may well exist reasonable and probable cause constituted by facts from which the defendant has wrongly drawn an inference of want of cause. It is otherwise where the belief becomes material as an ingredient in the question of _mala fides_: that was the case in Ravenga _v._ Mackintosh, where the defendant rested his defence upon the ground that he had acted _bona fide_ on a legal opinion, and the jury found that he had not so acted. Nothing should be left to the jury but “the truth of the facts proved, and the justice of the inferences to be drawn from such facts;” and it is only as affecting those questions that the belief of the party is material.

Next: the jury were misdirected as to malice. The mere fact that the defendant had an indirect motive, however improper, in instituting the prosecution does not show malice. The malice required in this action is express malice in fact, not mere malice in law. In the judgment of Lords Mansfield and Loughborough, in Johnstone _v._ Sutton,[394] it is said:[395] “From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied.” The jury ought therefore to have been told that the indirect motive was quite consistent with absence of malice, unless the defendant knew (not simply believed) that there was no probable cause, or unless there was some evidence of express malice towards the plaintiff.

LORD DENMAN, C. J. It would be quite outrageous if, where a party is proved to believe that a charge is unfounded, it were to be held that he could have reasonable and probable cause. Reference has been made to Turner _v._ Ambler, 10 Q. B. 252, where there was an allusion to a decision of my Brother Maule, upheld afterwards in the Common Pleas,[396] to the effect that reasonable and probable cause cannot exist without belief. There may possibly be some difficulty in distinguishing the case last mentioned from some others: but I think that belief is essential to the existence of reasonable and probable cause: I do not mean abstract belief, but a belief upon which a party acts. Where there is no such belief, to hold that the party had reasonable and probable cause would be destructive of common sense.[397] Proof of the absence of belief is almost always involved in the proof of malice. In Turner _v._ Ambler there was no point directly made at the trial as to want of belief: the only question was whether the facts of themselves bore out the probability and reasonableness. But, where a plaintiff takes upon himself to prove that, assuming the facts to be as the defendant contends, still the defendant did not believe them, we ought not to entertain any doubt that it is proper to leave the question of belief as a fact to the jury. It is not absolutely necessary that this belief should be the motive on which he acted: he may act from malice, and yet, if there was reasonable and probable cause in which he believed, the case against him must fail.

_Rule refused as to misdirection._

VANDERBILT _v._ MATHIS SUPREME COURT, CITY OF NEW YORK, FEBRUARY, 1856. _Reported in 5 Duer, 304._

_By the Court_, BOSWORTH, J.[398]—To maintain an action for malicious prosecution, three facts, if controverted, must be established:

1. That the prosecution is at an end, and was determined in favor of the plaintiff.

2. The want of probable cause.

3. Malice.

In such an action, it is necessary to give some evidence of the want of probable cause. It is insufficient to prove a mere acquittal; that, alone, is not _prima facie_ evidence of the want of probable cause. Gorton _v._ De Angelis, 6 Wend. 418.

It is equally essential, that the former prosecution should appear to have been maliciously instituted. Malice may be inferred from the want of probable cause, but such an inference is one which a jury is not required to make, at all events, merely because they may find the absence of probable cause.

Unless the evidence, in relation to the circumstances under which the prosecution was ended, and that given to establish the want of probable cause, justify the inference of malice, other evidence, in support of it, must be given.

Evidence as to the conduct of the defendant, in the course of the transaction, his declarations on the subject, and any forwardness and

## activity in exposing the plaintiff by a publication, are properly

admitted to prove malice. Such evidence must be given as will justify a jury in finding the existence of malice.

The rule is uniformly stated, that, to maintain an action, for a former prosecution, it must be shown to have been without probable cause, and malicious. Vanduzer _v._ Linderman, 10 J. R. 110; Murray _v._ Long, 1 Wend. 140; 2d Stark. Ev. 494; Willans _v._ Taylor, 6 Bing. 183.

The judge, at the trial, charged, that the fact, that the plaintiff was discharged before the magistrate showed, _prima facie_, that there was no probable cause for the arrest, and shifted the burden of proof from the plaintiff to the defendant, who was bound to show, affirmatively, that there was probable cause.

He was requested to charge, “that the discharge of Vanderbilt was not _prima facie_ evidence of the want of probable cause.” This he refused to do. To this refusal to charge, and to the charge as made, the defendant excepted.

He also charged, “that, if probable cause is made out, the question of malice becomes immaterial, except as bearing on the question of damages.”

“This question of malice, in fact, supposing that probable cause did not exist, is material only as affecting the question of damages.”

He was requested to charge, “that the jury could not find a verdict for the plaintiff, unless he has proved that there was no probable cause for the complaint, and not even then, unless they believed, from the evidence, that, in making the complaint, the defendant acted from malicious motives.” This the judge declined to do, and to his refusal to so charge the defendant excepted.

Although the evidence which establishes the want of probable cause may be, and generally is, such as to justify the inference of malice, yet we understand the rule to be, that when it is a just and proper inference from all the facts and circumstances of the case, upon all the evidence given in the cause, “that the defendant was not actuated by any improper motives, but only from an honest desire to being a supposed offender to justice, the action will not lie, because such facts and circumstances disprove that which is of the essence of the action, viz., the malice of the defendant in pressing the charge.”

In Bulkley _v._ Smith, 2 Duer, 271, the court stated the rule to be, “that, in order to maintain a suit for a malicious prosecution, the plaintiff is bound to prove the entire want of a probable cause for the accusation, and the actual malice of the defendant in making it. Malice is a question of fact, which, when the case turns upon it, must be decided by the jury.”

Story, J., in Wiggin _v._ Coffin, instructed the jury that two things must concur, to entitle a plaintiff to recover in such an action: “The first is, the want of probable cause for the prosecution; the second is, malice in the defendant in carrying on the prosecution. If either ground fail, there is an end of the suit.”

In Vanduzer _v._ Linderman, 10 J. R. 110, the court said: “No action lies, merely for bringing a suit against a person without sufficient ground. To maintain a suit for a former prosecution, it must appear to have been without cause, and malicious.”

If the charge must be understood to mean, that if the want of probable cause was established, the plaintiff was entitled to recover, although the jury should believe, from the whole evidence, that, in making the complaint, the defendant did not act from malicious motives, then we deem it to be erroneous. This construction is the only one, of which the language of the instruction appears to be susceptible; for the judge, in charging the jury stated that the “question of malice in fact, supposing that probable cause did not exist, is material only as affecting the question of damages.”

Malice in fact, is that kind of malice which is to be proved. When malice may be, and is inferred, from the want of probable cause, it is actual malice which is thus proved.

There is no theoretical malice which can satisfy this rule, and which can coexist with the established fact, that the prosecution was instituted in an honest belief of the plaintiff’s guilt, and with no other motives than to bring a supposed offender to justice.

The question of malice may be a turning-point of the controversy, in an

## action of this nature.

The want of probable cause may be shown, and yet upon the whole evidence, in any given case, it may be a fair question for the determination of a jury, whether the defendant was actuated by malice. If the whole evidence is such, that a jury cannot properly doubt the honesty and purity of the motive which induced the former prosecution, and if they fully believe that it was instituted from good motives, and in the sincere conviction that the plaintiff was guilty of the offence charged, and without malice, the defendant would be entitled to a verdict.

The charge made, and which was excepted to, must be deemed to have been made, to give the jury a rule of action, in disposing of the case upon the whole evidence. We think it was not only calculated to mislead, but was erroneous.

A new trial must be granted, with costs to abide the event.[399]

MACK _v._ SHARP SUPREME COURT, MICHIGAN, DECEMBER 14, 1904. _Reported in 138 Michigan Reports, 448._

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.

It is further said the stat. 5 Geo. 2, has given a remedy, and therefore this action will not lie; but we are all of opinion, that in this case the plaintiff would have been entitled to this remedy by action at common law, if this Act had never been made, and that the statute being in the affirmative, hath not taken away the remedy at law. 2 Raym. 163. And this is a universal rule, that an affirmative statute is hardly ever repealed by a subsequent affirmative statute, for if it is possible to reconcile two statutes they shall both stand together; if they cannot be reconciled, the last shall be a repeal of the first; but the most decisive answer is, that this statute-remedy is a most inadequate and uncertain remedy; for though there be the most outrageous malice and perjury, and the party injured suffer to the amount of ten or twenty thousand pounds, yet the Chancellor has no power to give him more than the penalty of £200; besides, the method of applying to the Chancellor, is more tedious, expensive, and inconvenient than this common law remedy, and this case in its nature is more properly the province of a jury, than of any judge whatever.

It is further objected, that in the third count there is no averment that the plaintiff was not indebted to the defendant, or ever committed an act of bankruptcy; but no case was cited to show such averment to be necessary; the ground and substance of the declaration is falsehood and malice; there are no instances of such averments in conspiracy, that the party was innocent, or did not do the fact on which he was indicted, but the precedents are the other way. In an action for words, as for saying a man is a thief, the plaintiff has no occasion to aver he is not a thief, and this case is analogous; for after the plaintiff has alleged that the commission was false and malicious, it would be tautology, to make such averment that he was not indebted, &c., and this declaration would have been good on a demurrer; more clearly it is so, after a verdict.

_Judgment for the plaintiff._

TOMLINSON _v._ WARNER SUPREME COURT, OHIO, DECEMBER, 1839. _Reported in 9 Ohio Reports, 104._

Malicious prosecution. From Licking. The plaintiffs declared that they were residents of the town of Newark, and possessed of a large amount of personal property, deposited in a warehouse to be forwarded to New York, for a market; and that the defendant well knowing the premises, and that the plaintiffs had not absconded, but contriving and maliciously intending wrongfully to injure them, made oath before a justice of the peace, that they had absconded to the injury of their creditors, as he verily believed, and thereupon sued out of the Court of Common Pleas, a writ of attachment, and caused the said property to be seized by the sheriff, and held for a long time, whereby the same was injured, the plaintiffs deprived of the opportunity of forwarding their goods to a market, and greatly injured. Plea, not guilty.

Upon trial to the jury, the counsel for the plaintiffs admitted that the plaintiffs were indebted to the defendant at the time of his affidavit, as sworn to in it; whereupon the court directed a nonsuit, with leave to move to open it, and for a new trial, which is now made.[403]

By the Court, WOOD, J. The only question presented in this motion, is, do the facts set forth in the declaration constitute a legal cause of

## action, provided the plaintiffs were indebted to the defendant, when

he sued out the writ of attachment?

In Connecticut, there is a statute which provides, that where a plaintiff shall “willingly and wittingly” wrong any defendant by prosecuting any action against him with intent wrongfully to trouble and vex him, such plaintiff shall pay treble damages for the first offence, be liable to a fine for the second, and for the third, may be proceeded against as a common barrator. Judge Swift thinks the act founded in the clearest principles of justice. Swift Dig. 493. At common law, it seems well settled, that no action will lie for a malicious prosecution of a civil suit, without cause, where there is no arrest. I Salk. R. 14. The costs allowed in all other cases are supposed to be a sufficient compensation for the injury, however malicious. The rule itself may perhaps be admitted, but the reason on which it is said to be founded cannot be so readily admitted, for at common law no costs were allowed. If the plaintiff failed, he was amerced for his false clamor, and if he succeeded, the defendant was at the mercy of the King. But at common law, whenever there was an arrest, holding to bail, or imprisonment, where no debt was due, or for a greater sum than was due, with a malicious intention to injure, the action lay for a malicious arrest. 1 Saund. R. 228. The action for a malicious prosecution, which technically only applies to cases of malicious prosecution of criminal complaints, lies as well where there is not, as where there is an arrest; and the grounds of the action are the malice of the defendant, want of probable cause, and injury to the plaintiff’s person by imprisonment, his reputation by scandal, or to his property by expense. 1 Swift Dig. 491. Having no direct adjudication on the question before us, we may look to the analogies of the law. The counsel for the defendant insist that because the plaintiffs’ indebtedness to the defendant in the former suit is admitted, there was probable cause for suing out the writ of attachment. This does not seem to us to follow. To constitute probable cause for suing out a writ of attachment, the law requires an affidavit of indebtedness, and also that the debtor has absconded, or is non-resident. The absence of either is absence of probable cause for the writ, and the false affirmation of either fact, knowingly, as a means of procuring the writ, shows express malice, whilst the taking of property without cause is a sufficient injury to sustain the

## action.

In the Supreme Court of New York, it has been decided, that case would lie against both plaintiff and defendant, for fraudulently setting up the judgment as unsatisfied, when in fact paid, and causing an execution and sale of land once held by it as a lien, but which had been afterwards conveyed by the defendant to a third person. The court in that case say, “If it appear that the unlawful acts of the defendant occasioned trouble, inconvenience, or expense to the plaintiff, this action lies.” The general rule is, that for every injury the law gives redress; and it would be a reproach to the administration of justice, if one, by perjury, could take from another the control of his property, under form of law, and the law afford no remedy. Nice technicalities are sometimes applied to get rid of a hard case; but when, under form of law, opportunity is sought to gratify malice, to the injury of another, courts will not be astute to avoid, but rather seek ground to sustain an action. We have no facts in this case, before us, but the statement in the declaration, and the admission of indebtedness; but these show a sufficient prima facie cause of action, and cause for opening up the nonsuit.

_New trial granted._[404]

WETMORE _v._ MELLINGER SUPREME COURT, IOWA, APRIL 9, 1884. _Reported in 64 Iowa Reports, 741._

BECK, J.[405] The petition alleges that defendants brought an action against plaintiff and his wife, charging in the petition that they two conspired and confederated together to defraud defendants, by representing to defendants, under the assumed name of Baker, that they were the owners of certain lands in Poweshiek County, which defendants were induced to purchase of plaintiff and his wife, who, in such assumed name, executed to defendants a warranty deed therefor; that, in an

## action by one Woodward, a deed, purporting to be executed by him to the

Bakers, under which they claimed title to the lands, was declared to be void, for the reason that it was forged and fraudulent, and that plaintiff herein and his wife well knew the condition of their title, and representing that they were the owners thereof, for the purpose of cheating defendants, and of obtaining money by false and fraudulent pretences, and did, in that manner, obtain the sum of $3,000 from defendants. It is further alleged that defendants herein served out a writ of attachment in the suit brought by them, which was levied upon real estate owned by plaintiff’s wife, and that defendants for a time prosecuted their action, but finally dismissed it at their own costs. Plaintiff, in his petition in this case, alleges that he was not indebted to defendants in any sum at the time their action was brought against him; that he was not guilty of the frauds therein charged, and that the action was commenced and prosecuted by defendants maliciously and without probable cause. The defendants, in their answer, admit the commencement of the suit, the issuing of the attachment, and that it was levied upon real estate owned by plaintiff’s wife. There was no evidence showing, or tending to show, that the writ of attachment was levied upon any property owned by plaintiff. The wife of plaintiff does not join in this action.

We think the doctrine is well established by the great preponderance of authority that no action will lie for the institution and prosecution of a civil action with malice and without probable cause, where there has been no arrest of the person or seizure of the property of defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action.

See 1 Am. Leading Cases, p. 218, note to Munn _v._ Dupont _et al._, and cases there cited; Mayer _v._ Walter, 64 Pa. St. 289; Kramer _v._ Stock, 10 Watts, 115; Bitz _v._ Meyer, 11 Vroom, 252, S. C. 29 Am. Rep. 233; Eberly _v._ Rupp, 90 Pa. St. 259; Gorton _v._ Brown, 27 Ill. 489; Woodmansie _v._ Logan, 2 N. J. L. 93 (1 Pen.); Parker’s Adm’rs _v._ Frambes, Id. 156; Potts _v._ Imlay, 4 N. J. L. 330 (1 South.)

This doctrine is supported by the following considerations: The courts are open and free to all who have grievances and seek remedies therefor, and there should be no restraint upon a suitor, through fear of liability resulting from failure in his action, which would keep him from the courts. He ought not, in ordinary cases, to be subject to a suit for bringing an action, and be required to defend against the charge of malice and the want of probable cause. If an action may be maintained against a plaintiff for the malicious prosecution of a suit without probable cause, why should not a right of action accrue against a defendant who defends without probable cause and with malice? The doctrine surely tends to discourage vexatious litigation, rather than to promote it.

It will be observed that the statement of the doctrine we have made extends it no farther than to cases prosecuted in the usual manner, where defendants suffer no special damages or grievance other than is endured by all defendants in suits brought upon like causes of action. If the bringing of the action operates to disturb the peace, to impose care and expense, or even to cast discredit and suspicion upon the defendant, the same results follow all actions of like character, whether they be meritorious, or prosecuted maliciously and without probable cause. They are incidents of litigation. But if an action is so prosecuted as to entail unusual hardship upon the defendant, and subject him to special loss of property or of reputation, he ought to be compensated. So, if his property be seized, or if he be subjected to arrest by an action maliciously prosecuted, the law secures to him a remedy. In the case at bar, the pleadings and evidence show no such special damages. No action could be prosecuted to recover money fraudulently obtained, in which the defendant would not suffer the very things for which plaintiff in this case seeks compensation in damages.

Counsel for plaintiff, in support of their position that the action may be maintained, though no arrest of defendant or seizure of property be had in the proceeding alleged to have been maliciously prosecuted, cite Green _v._ Cochran, 43 Iowa, 544, and Moffatt _et al._ _v._ Fisher, 47 Id. 473. In the first case, the action alleged to be malicious was a proceeding for bastardy, which, under the statute, operated as a lien upon defendant’s lands from the commencement. In the other case, the

## action which was the foundation of plaintiff’s claim was forcible entry

and detainer, and, before final disposition thereof, the defendant was ousted of possession of the land, whereon was a coal mine. In both instances the property of the respective defendants was reached by the proceedings. The facts of these cases are not within the rule we have stated, and do not support counsel’s position.

_Affirmed._[406]

FLIGHT _v._ LEMAN IN THE QUEEN’S BENCH, JUNE 9, 1843. _Reported in 4 Queen’s Bench Reports, 883._

Case. The second count of the declaration alleged that the defendant heretofore, to wit 1st January, 1838, and on divers &c. between that day and 22d November, 1838, contriving and maliciously intending to injure, harass and damnify plaintiff, and to put him to great vexation, unlawfully and maliciously did advise, procure, instigate and stir up John Thomas to commence and prosecute an action of trespass on the case in the court &c. (Queen’s Bench) against the now plaintiff; that by and through such advice, procurement, instigation and stirring-up, John Thomas did in fact afterwards, to wit 4th January, 1838, commence and prosecute the last-mentioned action. The present declaration then set out three counts of a declaration in case at the suit of John Thomas against the defendant, averment of a trial at nisi prius at Dorchester, on 18th July, 1838, and that the defendant was then and there acquitted of the premises mentioned to be charged against him by John Thomas. And thereupon afterwards, to wit 22d November, 1838, it was considered, in and by the said court &c., amongst other things, that the said John Thomas be in mercy for his false claim against the now plaintiff defendant in the said last-mentioned action as aforesaid. Whereby the now plaintiff was not only put to great trouble and vexation, but was also obliged to pay, and did in fact pay, a large &c., to wit £800, in and about the defence of the said action.

The defendant pleaded, in effect, that the advice given by him was given in the character of an attorney.

Replication _de injuria_.

Special demurrer. Joinder.[407]

LORD DENMAN, C. J. The case of Pechell _v._ Watson, 8 M. & W. 691, proceeded on the principle that to maintain an action already commenced was unlawful. That is not here charged; and therefore the count ought to show the ingredients which make the instigation to a suit actionable. The plaintiff has not done this; for, beyond all doubt, the absence of reasonable or probable cause is one such ingredient, in the absence of which it does not appear that the plaintiff has been unlawfully disturbed.

PATTESON, J. I think this declaration is bad, for the reason already given. The case is analogous to that of a complaint of malicious prosecution or arrest; and here, as there, the want of reasonable or probable cause ought to be alleged.

WILLIAMS, J. The averments in this declaration might be sustained by proof that the defendant, not being an attorney, had held a conversation with Thomas, and had said, “If your story is correct, you might sue Flight.” No action could be maintained on that, unless it further appeared that the now defendant knew that there was no right to sue the now plaintiff.

COLERIDGE, J. It is not asserted here that the suit maintained was without reasonable or probable cause: there are only general words, imputing an instigation and a stirring-up. There should be added to these, in strict analogy with actions for malicious prosecution or arrest, as my Brother Patteson has pointed out, an averment of want of reasonable or probable cause: and without such averment this declaration shows no right of action.

_Judgment for defendant._[408]

GRAINGER _v._ HILL IN THE COMMON PLEAS, JANUARY 20, 1838. _Reported in 4 Bingham, New Cases, 212._

TINDAL, C. J.[409] This is a special action on the case, in which the plaintiff declares that he was the master and owner of a vessel which, in September, 1836, he mortgaged to the defendant for the sum of £80, with a covenant for repayment in September, 1837, and under a stipulation that, in the mean time, the plaintiff should retain the command of the vessel, and prosecute voyages therein for his own profit; that the defendants, in order to compel the plaintiff through duress to give up the register of the vessel, without which he could not go to sea before the money lent on mortgage became due, threatened to arrest him for the same unless he immediately paid the amount; that, upon the plaintiff refusing to pay it, the defendants, knowing he could not provide bail, arrested him under a _capias_, indorsed to levy £95, 17s. 6d., and kept him imprisoned, until, by duress, he was compelled to give up the register, which the defendants then unlawfully detained; by means whereof the plaintiff lost four voyages from London to Caen. There is also a count in trover for the register. The defendants pleaded the general issue; and, after a verdict for the plaintiff, the case comes before us on a double ground, under an application for a nonsuit, and in arrest of judgment.

The second ground urged for a nonsuit is, that there was no proof of the suit commenced by the defendants having been terminated. But the answer to this, and to the objection urged in arrest of judgment, namely, the omission to allege want of reasonable and probable cause for the defendants’ proceeding, is the same,—that this is an action for abusing the process of the law, by applying it to extort property from the plaintiff, and not an action for a malicious arrest or malicious prosecution, in order to support which action the termination of the previous proceeding must be proved, and the absence of reasonable and probable cause be alleged as well as proved. In the case of a malicious arrest, the sheriff at least is instructed to pursue the exigency of the writ; here the directions given, to compel the plaintiff to yield up the register, were no part of the duty enjoined by the writ. If the course pursued by the defendants is such that there is no precedent of a similar transaction, the plaintiff’s remedy is by an action on the case, applicable to such new and special circumstances; and his complaint being that the process of the law has been abused, to effect an object not within the scope of the process, it is immaterial whether the suit which that process commenced has been determined or not, or whether or not it was founded on reasonable and probable cause.[410]

BOND _v._ CHAPIN SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER, 1844. _Reported in 8 Metcalf, 31._

HUBBARD, J.[411] In the present suit, which is an action on the case against the defendant for prosecuting a suit in the name of Thomas Bond against the plaintiff, the plaintiff avers, in his declaration, (which accompanies the exceptions) that the defendant, without authority from said Thomas, and having no reasonable ground for believing that anything was due from the plaintiff to him, attached the plaintiff’s property, and prosecuted said suit against him, from November term, 1840, to November term, 1841, when he became nonsuit; and evidence was offered tending to prove these allegations. The instructions to the jury were, that “the plaintiff must prove the former action to have been commenced and prosecuted maliciously, that is to say, with some improper motive, or without due care to ascertain his rights, as well as without authority, and without probable cause.” The error complained of may have arisen from not distinguishing, during the trial, between an action on the case for malicious prosecution, and an action on the case for prosecuting a suit in the name of a third person, without authority, by reason of which the defendant sustains injury.

In a suit for malicious prosecution, the gist of the action is malice; but there must also exist the want of probable cause. And without the proof of both facts, the action cannot be maintained, though the existence of malice may often be inferred from the want of probable cause. But in an action on the case for damages for prosecuting a suit against the plaintiff without authority, in the name of a third person, the gist of the action is not a want of probable cause,—for there may be a good cause of action,—but for the improper liberty of using the name of another person in prosecuting a suit, by which the defendant in the action is injured. Nor is the proof of malice essential to the maintenance of such action. If the party supposes he has authority to commence a suit, when in fact he has none, and the nominal plaintiff does not adopt it, the action fails for want of such authority. In such case, though the party supposed he had authority, and acted upon that supposition, without malice, still if the defendant suffers injury by reason of the prosecution of the unauthorized suit against him, he may maintain an action for the actual damages sustained by him, in the loss of time, and for money paid to procure the discontinuance of the suit, but nothing more. Where, however, in addition to a want of authority, the suit commenced was altogether groundless, and was prosecuted with malicious motives—which may be inferred from there existing no right of action, as well as proved in other ways—then, in addition to the actual loss of time and money, the party may recover damages for the injury inflicted on his feelings and reputation.

In this case, the learned judge having instructed the jury that a want of probable cause and malice must concur with the want of authority to commence the suit in the name of a third person, to enable the plaintiff to maintain the action, we think there was error in the instruction, and that though the damages might be enhanced by showing malice and a want of probable cause, yet that the proof of them is not essential to the maintenance of the action.

_New trial granted._[412]

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