§ 298. Elements of the wrong.-It is every man's legal right to be free from any unjust legal proceedings, and, strictly speaking, every suit or legal proceeding that fails is an infringement of that right. But it is not every unsuccessful suit that will give the person sued a right to recover damages therefor. The due enforcement of the law requires that honest litigants shall not be deterred by the fear of liability for malicious prosecution from asserting their claims civilly, nor from the praiseworthy work of bringing offenders to justice. Therefore the wrong from unfounded legal proceedings is through motives of public policy limited to such proceedings as are instituted maliciously and without probable cause therefor. Furthermore, the law does not favor the maintenance of a second action during the pendency of another in which precisely the same questions are involved. The proceeding complained of as a malicious prosecution may always result in a judgment against the party charged, and when such result follows, the judgment is generally a conclusive adjudication that there was sufficient cause for the proceeding. The law does not, therefore, permit an action for malicious prosecution until after the termination of the proceeding complained of, and this

termination must be other than by a valid judgment against the party charged, otherwise it might happen that a prosecuting witness would be held liable in damages for instituting a proceeding without probable cause, and afterward in the proceeding complained of the criminal might be convicted upon evidence beyond a reasonable doubt. Therefore, in order that a plaintiff may maintain an action for malicious prosecution, he must establish the concurrence of three things, 1st, the malicious motive; 2d, the absence of probable cause; 3d, the proceeding must have terminated. If he fails to establish any one of these three elements his action can not prevail.

§ 299. The malicious motive. This does not necessarily mean hatred, ill-will or revenge. By malice here is meant any direct or indirect motive of wrong. It may be any motive other than that of simply bringing the supposed offender to justice. So, if the object of instituting criminal proceedings be shown to be to compel a person to pay a debt or to surrender property, there is malice in the legal sense. Malice may be inferred from the recklessness or gross negligence of failing to make proper investigation before beginning the proceeding. And it may be inferred from the entire absence of probable cause, without other evidence; for it is inconceivable that one can act with good faith in such a case, unless he has some probable cause. The question of the existence or non-existence of malice is one of fact for the jury, although it is the province of the court to decide whether there is any or sufficient evidence of malice.

§ 300. Want of probable cause.-Probable cause is the apparent existence of such facts and circumstances as would excite the belief in a reasonable mind that the person charged is guilty. It is essential that the prosecutor shall have entertained an honest belief in the guilt. Although there might otherwise be probable cause from suspicious circumstances, yet if the prosecutor knew or believed the accused to be innocent he would not have probable cause for making the charge. It matters not that facts actually existed which would amount to probable cause, such facts must be known to the prosecutor at the time of the prosecution in order to avail him. The mental attitude of the prosecutor is in such case one of the facts and circumstances to be considered, in determining whether he had probable cause. It is not enough, however, that the prosecutor entertained an honest belief in the guilt of the accused. Such belief must have been upon reasonable grounds, and mere floating rumors are not generally considered a sufficient foundation. It makes no difference that the accused was in fact innocent; the question is not as to the innocence of the accused, but whether there was probable cause for believing him to be guilty. Absence of probable cause can not generally be inferred from the mere fact that the proceeding was actuated by ill-will. There must be other evidence. For, a belief upon probable grounds, that the accused was guilty of offense, would almost inevitably excite an ill-will toward him, and hence the existence of ill-will is equally consistent with the presence as with the absence of probable cause. But where the malice consists in the

wrongful use of the legal proceedings for a collateral improper purpose, it is competent evidence of the absence of probable cause; for such evidence would go to the question whether the prosecutor honestly believed the accused guilty. The fact that the prosecutor laid the facts and circumstances before counsel learned in the law, and acted upon the opinion given, is competent evidence, both of the absence of malice. and the existence of probable cause, but is not conclusive. In order to afford protection, there must have been a full disclosure made to an attorney in regular practice. Of course, it must have been in good faith, for an attorney and client will not be permitted to use such a defense as a cloak for their collusive wrong.

A judgment of conviction in the proceeding complained of is generally conclusive evidence of the existence of probable cause, even though an appeal be taken, resulting in a new trial and subsequent acquittal. But if the conviction was secured by fraud or perjury, it will not be conclusive evidence.

An acquittal in the proceeding complained of is competent, but not conclusive evidence of the absence of probable cause. In defense to the action for malicious prosecution, it may be shown that the charge is true, notwithstanding the acquittal. For, an acquittal may have resulted from failure to establish the charge by evidence beyond a reasonable doubt, and yet the evidence may be sufficient to establish the charge by a preponderance.

§ 301. Proceeding must have terminated.-Generally such termination must have been otherwise. than by a judgment against the person charged, but

it need not have been by a judgment in favor of the person charged. It is a sufficient termination if the grand jury ignores a bill, where a person has been bound over; or if a nolle prosequi be entered; or if an indictment be quashed; or if the accused be discharged from bail or imprisonment. All that is necessary is that the proceeding shall have been so disposed of that it can not be revived, and that the prosecutor, if he intend to proceed further, must begin anew.

§ 302. Malicious prosecution of civil actions.— The action is usually brought for the malicious prosecution of some criminal proceeding. But it is sometimes also allowed on account of civil suits upon the same principles.

At common law the action was permitted for any proceeding, civil as well as criminal, upon termination in favor of the defendant, but when by statute costs were given to the prevailing party, the right to maintain an action for malicious prosecution of civil suits was limited to such as involved the arrest of the person, the seizure of his property, or other such special injury. And this is the rule that prevails in many states, among which are New Jersey, Pennsylvania, Maryland, Iowa and Georgia. Other states have followed the common law as it existed prior to the statutes giving costs; among these are New York, Indiana, Vermont, Connecticut, Kentucky, Kansas, Illinois and Missouri.

§ 303. Malicious abuse of process. It is not only for proceedings maliciously begun that the law affords redress, but also for any process, either civil or crim