¶1There is a distinction recognized and established hy the authorities between an action for a malicious abuse of legal process, and a malicious use of legal process.
¶2Where the action is for abuse of process it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause. Granger v. Hill, 4 Bing. (N. C.) 212.
¶3But where there is just claim in suit, and civil process is maliciously used to arrest the defendant when no probable cause for such arrest exists, it is necessary in order to recover for such malicious use of legal process to prove that it was malicious and without probable cause, and also that the suit or proceeding was finally determined before action brought for the injury. Mayer v. Walter, 64 Pa. St. 283.
¶4This case, while it is called by appellee’s counsel an action for abuse of legal process, is in the frame of the declaration, and in the theory on which it was tried in the court below, an action for malicious use of civil process. Appellee alleged in her declaration and sought to prove on the trial, that the capias was sued out maliciously and without probable cause, and that the prosecution was terminated before she commenced this action.
¶5To establish that the prosecution was so legally terminated as to permit the maintenance of this action, it was not necessary for appellee to show that the merits had been determined in her favor; it was sufficient to show the voluntary dismissal or abandonment of the prosecution by plaintiff in the action or proceeding. But wheie the proceeding is dismissed or abandoned by the procurement of the pavty prosecuted by settlement or compromise with the prosecutor or plaintiff in the action, it is not, it seems, such a termination of the proceeding as that a suit for malicious prosecution can be maintained.
¶6The termination must be such as does not admit a reasonable cause for prosecution. If the prosecution should end with a judgment adverse to the party prosecuted criminally, or arrested in a civil suit, it would establish not only that there was probable cause but that there was actual cause for the proceeding, and where the termination of the case is brought about by a compromise or settling between the parties, understanding^ entered into, it is such an admission that there was probable cause that the plaintiff can not afterward retract it and try the question, which by settling he waived.
¶7“ If he settled the demand understanding!;/ and voluntarily, he is estopped from denying that the defendant had probable cause for bringing the suit. If he would contest the claim, he should have protested against his liability. If a party is silent when self-interest commands him to speak, he will not be permitted to speak when public policy commands him to keep silent.” Morton v. Young, 55 Me. 27.
¶8So in McCormick v. Sisson, 7 Cow. 715, where the plaintiff had been arrested on a charge of theft but during the examination before the Justice the matter was settled and the proceeding was dropped, the court held that the proceeding having ended in consequence of a settlement and not by an acquittal, was fatal to the action for malicious prosecution. And in Clark v. Everett, 2 Grant's Cases, 416, where one was arrested on a debt not due but compromised the matter and paid the money, and was discharged from the debt and the action, it was held that he was precluded from maintaining an action for maliciously bringing the suit before the debt was due. Judge Cooley in his work on Torts, 186, in discussing what is an end of the proceeding, says: “It is not enough that the parties in a case which they might lawfully settle, have effected a compromise and thereby terminated it.”
¶9This is substantially the view taken in every case we have been able to find where the question has been presented Hamilburg v. Shepard, 119 Mass. 30; Marks v. Gray, 42 Me. 86; Rounds v. Humes, 7 R. I. 535; Brown v. Randall, 36 Conn. 56; Sartwell v. Parker, 141 Mass. 405.
¶10There was in this case a conflict of evidence on the question as to whether there was a settlement between plaintiff and defendants. Plaintiff’s contention was that her goods were extorted from her by threats and duress, and that she did not settle, and defendants introduced evidence to show that there was a settlement and that the goods were turned over by plaintiff to them in payment of the debt, and thereupon plaintiff was discharged from arrest and the suit against her dismissed. In this condition of the evidence the court gave to the jury at the instance of plaintiff the following instruction:
¶11“ Third. If the jury believe from the evidence that the defendant maliciously and without probable cause procured the plaintiff to be arrested and treated as charged in the declaration, and that the suit in which said plaintiff was arrested was dismissed, and the prosecution against the plaintiff ended before this suit was brought, then the jury are instructed that they should find the defendant guilty, and assess the plaintiff’s damages, and in such case the jury may give exemplary damages, and such as under all the circumstances appearing in evidence, the jury shall deem just.”
¶12This instruction attempts to enumerate all the elements necessary to sustain plaintiff’s cause of action. It purports to cover the whole case, yet it ignores and excludes. from the consideration of the jury the evidence tending to show that the prosecution was dismissed because of the settlement between the parties. It was for the jury to determine whether the dismissal of the proceeding was brought about by a compromise or settlement between the parties, and it was error to instruct them that if they found the suit against plaintiff was dismissed and the prosecution ended before this suit was brought, they might find defendants guilty. The instruction would be correct if there was no evidence to show that the suit was settled, but there being evidence before the jury tending to prove a fact having an important bearing on the law of the case, the instruction was partial and incomplete without a hypothesis negativing the conclusion which such evidence tended to establish. Chicago Packing & Provision Co. v. Tilton, 87 Ill. 547.
¶13The court modified one of defendants’ instructions so that as given to the jury it read as follows, the modification by the court being in italics:
¶14“The court instructs the jury, that the plaintiff having dismissed her count in the declaration for conspiracy, the only issue remaining is that in relation to malicious prosecution, and the jury are instructed that in an action of malicious prosecution it is incumbent on the plaintiff to prove by the preponderance of evidence that the suing out of the writ complained of was procured by the defendant maliciously and without probable cause. Both of those elements must co-exist, otherwise the action can not be sustained. So if you believe from the evidence that the defendant had probable cause and instituted the proceedings against the plaintiff and caused said writ to be issued in good faith and without malice, then you must find defendant not guilty.”
¶15The first part of the instruction states the law correctly, the latter part erroneously. One part is in conflict with the other. It is impossible to determine which part of the instruction the jury followed. The lack of harmony between the rules stated in the instruction tended to mislead, and in such case, unless we can clearly see that the error couid not have operated injuriously, we must reverse. C., B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; Quinn v. Donovan, 85 Ill. 194.
¶16For the errors indicated, the judgment of the Superior Court will be reversed and the case remanded.
¶17Reversed and remanded..