Kirkpatrick v. Kirkpatrick

<p>Malicious Prosecution. — Averments in action. — Discharge not equivalent to Acquittal of offence charged. — Proof necessary to sustain the Action</p> <p>1. Where the wife of a plaintiff in an action for malicious prosecution was arrested and bound over on the ehai-ge of conspiring to poison the prosecutor, and, a true bill being found, was tried and convicted, but the judgment was arrested and she discharged, the averment of “ discharged” was held, not to be a sufficient averment and proof of the termination of the prosecution, to sustain an action for malicious prosecution, for it did not countervail the effect of the record of the conviction. Nothing short of an acquittal will answer, where the prosecution has progressed to a trial by a petit jury.</p> <p>2. It is indispensably necessary to maintain the action, to prove want of probable cause and malice in the prosecutor. It is not enough to show the oath of one of the defendants as the foundation of the prosecution, the employment of counsel by him, and his attendance at the trial, supported by some evidence as to the innocence of the party prosecuted. It must clearly appear that the prosecution was groundless, and so known, or that it might so have been known to be by the prosecutor.</p>