Malicious prosecution

To support an action for a malicious criminal prosecution the plaintiff must prove, in the first place, the fact of prosecution, and that the defendant was himself the prosecutor, or that he instigated its commencement, and that it finally terminated in his acquittal. He must also prove that the charge preferred against him was unfounded, and that it was made without reasonable or probable cause, and that the defendant in making or instigating it was actuated by malice

A judicial proceeding instituted without probable cause (97 U. S. 642; 59 Ind. 500), and with malicious intent (7 111. App. 181; 30 N. Y. 625). While malice may be inferred by the jury from absence of probable cause, the presence of malice in fact is essential. 44 Gal. 144. At common law, the malicious prosecution of a civil action was actionable (Co. Litt. 161), but in most of the states only the malicious institution of a criminal proceeding is the subject of an action. (4 N. J. Law, 330). MALITIA (Lat.) Malice. 4 Bl. Comm. 199. MALITIA EST ACIDA; EST MALI ANIml affectus. Malice is sour; it is the quality of a bad mind. 2 Bulst. 49,

A wanton prosecution made by a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular process and proceeding, which the facts did not warrant, as appears by the result. Actions for malicious prosecution are not favored by the law; they are to be carefully guarded and their true principles strictly adhered to; 1 Ld. Raym. 374; Cloon v. Gerry, 13 Gray (Mass.) 201; Hurd v. Shaw, 20 lU. 354; Newell, Mai. Pros. 21. Where the defendant commences a criminal prosecution wantonly, and in other respects against law, he will be responsible; Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. Oil. Any motive other than that of simply instituting a prosecution for the purixtse of bringing the person to justice is a malicious motive; 10 Exch. 350. ' The prosecution of a civil suit, when malicious, is a good cause of action, even when there has been no seizure of property; Wade V. Bank, 114 Fed. 377; Lipscomb v. Shofner, 90 Tenn. 112, 33 S. W. 818; or no arrest; Whipple V. Fuller, 11 Conn. 582, 29 Am. Dec. 330; Pangburu v. Bull, 1 Wciul. (N. Y.) 345. See O’Brien v. Barry, 100 Mass. 300, 8 Am. Rep. 329; Big. Torts 71: Brounstein v. Sahiein, 65 Hun 365, 20 N. Y. Supp. 213; O’Neill V. Johnson, 53 Minn. 439, 55 N. W. 601, 39 Am. St. Rep. 615; Newell, Mai. Pros. 43. But see 1 Am. Lead. Cas. 261; 21 Am. L. Reg. N. S. 287 (by John D. Lawson); Wetmore v. Melliugcr, 64 la. 741, 18 N. W. 870, 52 Am. Rep. 405; Mayer v. Walter, 04 Pa. 289; Gorton V. Brown, 27 111. 489, 81 Am. Dec. 245. In such cases the want of probable cause must be very palpable; very slight grounds will not justify an action; Big. Torts 71. See L. R. 4 Q. B. 730. On the whole the W'elght of authority seems to be against the maintenance of an action for the malicious prosecution of a Civil suit in which no process other than the summons was issued; Eastin v. Bank, 00 Cal. 123, 4 Pac. 1106, 50 Am. Rep. 77; Newell, Mai. Pros. 37; Smith V. Buggy Co., 66 ill. App. 510. The bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support an action for malicious prosecution; 11 Q. B. D. 690; contra, Closson v. Staples, 42 Vt. 209, 1 Am. Rep. 316; otherwise of bankruptcy proceedings maliciously instituted, without probable cause; 11 Q. B. D. 074; brought after the adjudication in bankruptcy has been set aside; 10 App. Cas. 210; and of civil proceedings begun by attachment, or by arrest; Poll. Torts 303; Tamblyn v. Johnston, 126 Fed. 267, 62 C. C. A. 601; although the goods are at once returned; Vincent v. Mcmaliciously and without probable cause in the I name of a third person; id.; a malicious prosecution of extradition proceedings may be. the basis of an action; Castro v. De Uriarte, 16 Fed. 93. The assertion of patent rights may be so conducted as to constitute malicious prosecution; Virtue v. Mfg. Co., 227 tJ. S. 8, 33 Sup. Ct. 2Q2, 57 L. Ed. 393; but not Interference proceedings in the patent office, though maliciously Instituted; B. F. Avery & Son v. Plow Works, 1G3 Fed. 842. An action will lie for damages for wrongfully procuring the appointment of a receiver for a solvent corporation; it need not appear that it was done maliciously and without probable cause; Thomton-Thomas Mercantile Co. V. Bretherton, 32 Mont. 80, 80 Pac. 10; see also Joslin v. Williams, 76 Neb. 594, 107 N. W. 837, 112 N. W. 343; Cutter v. Pollock, 7 N. Dak. 631, 76 N. W. 235. There is a distinction between a malicious use and a malicious abuse of legal process. Abuse is where it is used “for some unlawful object, not the purpose which it is intended by the law to effect — a perversion of it”; Whelan v. Miller, 49 Pa. Super. Gt 91; Mayer v. Walter, 64 Pa. 283. The action lies against the prosecutor, and even against a mere informer, when the proceedings are malicious; Randall v. Henry, 5 Stew. & P. (Ala.) 367. But grand Jurors are not liable for information given by them to their fellow-jurors, on which a prosecution is founded; Black v. Sugg, Hard. (Ky.) 556. Such action lies against a plaintiff in a civil action who maliciously sues out the writ and prosecutes it; Savage V. Brewer, 16 Pick. (Mass.) 453, 28 Am. Dec. 255; but an action does not lie against an attorney at law for bringing the action, when regularly retained; Bicknell v. Dorion, 16 Pick; (Mass.) 478. See Pierce v. Thompson, 6 Pick. (Mass.) 193. The attorney, however, must act in good faith. If an attorney knows that there is no cause of action, and dishonestly and with some sinister view, for some purpose of his own, or for some other ill purpose which the law calls malicious, causes the plaintiff to be arrested and imprisoned, he is liable; 34 Eng. 0. L. B. 276; Newell, Mai. Pros. 23., The action lies against a corporation aggregate if the prosecution be commenced and carried on by its agents in its interest and for its benefit, and they acted within the scope of their authority; 6 Q. B. D. 287; Qoodspeed v. Bank, 22 Conn. 630, 58 Am. Dec. 439; Reed v. Bank, 130 Mass. 443, 39 Am. Rep. 46§; American Exp. Co. v. Patterson, 73 Ind. 430; Poll. Torts 301; [1900] 1 Q. B. 22; contra, 11 App. Cas. 250 (a dictum, see id. 244, 256). See also Cooley, Torts 121; 7

A judicial proceeding instituted against a person out of the prosecutor's malice and ill will, with the intention of injuring him, without probable cause to sustain it, the process and proceedings being regular and formal, but not justified by the facts. For this injury an action on the case lies, calied the "action of malicious prosecution." Hicks v. Brantley, 102 Ga. 264, 29 S. E.,459; Eggett v. Allen, 119 Wis. 625, 96 N. W. 803; Harpham v. Whitney, 77 111. 38; Lauzon v. Charroux, 18 R. I. 467, 28 Atl. 975; Frisbie v. Morris, 75 Conn. 637, 55 Atl. 9.

Defined under Malicious in Black's Law Dictionary.

One brought without probable cause, and with intent to injure the defendant. The action for malicious prosecution is an action on the case for damages, brought after the fruitless termination of the suit complained of.