rity, but S. failed to deliver it up, alleging that he had lost it; and K. afterwards enlisted in the army, and died in another state, leaving no property. S., after the decease of K., produced the note, claiming that it had not been paid, demanded payment of C., and threatened trouble if the matter was not settled. Subsequently S. procured one B. to commence a suit against C. on it, in which case judgment was finally rendered against B. on the merits. C. brought an action against S. on these facts, alleging that he could not recover any of his taxable costs against B., as he was worthless, and that he had been put to "great trouble, annoyance, and expense in looking up witnesses, preparing his defense to said suit, and employment of counsel, and attending said court, and other large expenses of time, and money, and teams." Held, that C. was entitled to recover: Closson v. Staples, 42 Vt. 209; 1 Am. Rep. 316. M. and L., as partners, had sued S. for slander, the case being dismissed at M. and L.'s costs. S. therefore brought an action for malicious prosecution. Held, that the action would lie: Marbourg v. Smith, 11 Kan. 554. A and B were citizens of Kentucky. B, for the purpose of annoying A, and subjecting him to unnecessary expense and trouble, falsely pretended to change his residence to the state of Indiana, and went to that state, not for the purpose of residing there in good faith, but to enable him to institute a suit in the United States circuit court for the district of Kentucky, for an assault alleged to have been committed by A on B. Claiming his residence in Indiana, he falsely and maliciously, and without reasonable cause, instituted a suit against A for the said assault. A trial was had, and judgment rendered against B, and A was thereby put to great expense defending the suit, for which he claimed damages. Held, that the action would lie: Woods v. Finnell, 13 Bush, 629.

§ 1091.

§ 1092.

§ 1093.

§ 1094.

§ 1095.

§ 1096.

§ 1097.

Malice also essential.

§ 1098.

Personal knowledge of prosecutor unnecessary.
Subsequently discovered facts irrelevent.

The judicial proceedings - When evidence of probable cause.

The judicial proceedings — When evidence of want of probable cause.
Evidence of character and reputation of plaintiff.

Advice of counsel as a defense.

Evidence to show malice.

§ 1083.

What Plaintiff must Show to Sustain Action. It is said by the supreme court of the United States in Wheeler v. Nesbitt,' that when the general issue is pleaded to in an action of malicious prosecution, the plaintiff must prove: 1. The fact of the prosecution; 2. That the defendant was the prosecutor or instigator; 3. That it terminated in the plaintiff's favor; 4. That the charge was unfounded, and made without reasonable or probable cause; 5. That the defendant in making it was actuated by malice.

The plaintiff

§ 1084. Commencement of Prosecution. must prove that a prosecution was commenced against him. The action is commenced where the warrant was sued out, although not placed in an officer's hands or further proceeded with.3 So it is not essential that an indictment shall have been preferred on the charge. The

1 24 How. 544.

2 Wheeler v. Nesbitt, 24 How. 544. 3 Holmes v. Johnson, Busb. 44.

Shock v. McChesney, 4 Yeates, 507; 2 Am. Dec. 415.

filing of the affidavit in a bastardy action is a beginning of a prosecution, though the proceedings are dismissed. without any arrest.' But an information before a magistrate does not constitute a commencement of a prosecution. A copy of the record of proceedings before the magistrate or other officer is the proper mode of proving the essential fact of the institution of the prosecution.3

ILLUSTRATIONS. Defendant had the warrant read to him, was told by the constable that he was under arrest, went alone to a magistrate's office for trial, submitted himself to the magistrate, procured an adjournment, and gave the required bond. Held, in an action for malicious prosecution, that there was a sufficient arrest: Malone v. Huston, 17 Neb. 107.

§ 1085. Termination of Prosecution. The plaintiff must show that the prosecution or suit in which he was prosecuted, or of which he complains, has terminated; for it would be absurd to allow one to recover who in the end might be convicted of the offense charged. The right of action accrues "whenever the particular prosecution be disposed of in such a manner that it cannot be revived; and the prosecutor, if he proceeds further, will be put to a new one"; and he must show that it terminated in his favor. If it was a civil suit, he must show that a judgment was rendered for him; if a criminal prosecution, he must ordinarily show a final acquittal. Where there

1 Coffey v. Myers, 84 Ind. 105.

2 Heyward v. Cuthbert, 4 McCord, 354.

3 Olmstead v. Partridge, 16 Gray, 381; Cooper v. Utterbach, 37 Md. 282. Wheeler v. Nesbitt, 24 How. 544; Hamilburgh v. Shepard, 119 Mass. 30; Gillespie v. Hudson, 11 Kan. 163; Gowell v. Snow, 31 Ind. 215; Hall v. Fisher, 20 Barb. 441; Smith v. Shackleford, 1 Nev. & M. 36; Lawler v. Levy, 33 La. Ann. 220. And the complaint should allege this: Johnson v. Finch, 93 N. C. 205; Rotchschild v. Meyer, 18 Ill. App. 284. An action is prematurely brought while the prosecution is still pending before the grand jury: Lowe v. Wartman, 47 N. J. L. 413.

5 Casebeer v. Drahoble, 13 Neb. 465.

6 O'Brien v. Barry, 106 Mass. 300; 8 Am. Rep. 329. The termination of the former action need not be averred and proved in an action for maliciously and without probable cause procuring and employing an attachment as auxiliary to a civil action: Fortman v. Rottier, 8 Ohio St. 548; 72 Am. Dec. 606.

Bacon v. Towne, 4 Cush. 217; Boyd v. Cross, 35 Md. 194; Kirkpatrick v. Kirkpatrick, 39 Pa. St. 288; Williams v. Woodhouse, 3 Dev. 257; Mooney v. Kennett, 19 Mo. 551; 61 Am. Dec. 576; Gowell v. Snow, 31 Ind. 215; Winn v. Peckham, 42 Wis. 493

3

was a conviction, the action will not lie,' unless the judgment is shown to have been obtained by fraud. It is sufficient to show a discharge by the magistrate on the · preliminary examination; or by the grand jury finding no bill; or that the indictment has been quashed, and the accused discharged by the judgment of the court; or that the prosecution was abandoned; or the release of the party on giving surety to keep the peace; or that the accused, having been held to bail to the next term of court, was discharged by the public prosecutor without action by the grand jury; or that the prosecution was dismissed before trial; or that the indictment was quashed, and the defendant discharged by the court; 10 or that the defendant was discharged before trial on habeas corpus." Where the suit is a civil action wholly under the control of the plaintiff, a discharge of it by him without any verdict or judgment is a sufficient ter

9

1 Miller v. Deere, 2 Abb. Pr. 1; Griffis r. Sellars, 2 Dev. & B. 492; 31 Am. Dec. 422; Cloon v. Gerry, 13 Gray, 201; Munroe v. Maples, I Root, 554; Hibbing v. Hyde, 50 Cal. 206; Turner v. Dinnegar, 20 Hun, 465; Severance . Judkins, 73 Me. 376.

Burt v. Place, 4 Wend. 591; Witham v. Gowen, 14 Me. 362; Payson v. Caswell, 22 Me. 226. Contra, Severance . Judkins, 73 Me. 376. Conviction of the party by a jury, though the verdict was obtained by false testimony and afterwards set aside for newly discovered evidence, and a verdict of not guilty returned, is conclusive evidence of probable cause in a subsequent action for malicious prosecution: Parker v. Huntington, 7 Gray, 36; 66 Am. Dec. 455.

3 Cardival v. Smith, 109 Mass. 158; 12 Am. Rep. 682; Swemgard v. Davis, 33 Minn. 368; Sayles v. Briggs, 4 Met. 421; Leon v. Babcock, 2 Jolins. 203; Driggs v. Burton, 44 Vt. 124. Even if the magistrate has only power to bind over or discharge: Moyle v. Drake, 141 Mass. 238. And although afterwards an indictment is found for the same matter: Costello v. Knight, 4 Mackey, 65. The docket of the jus

Hays v. Blizzard, 30 Ind. 457.

Brown v. Randall, 36 Conn. 56; 4 Am. Rep. 35; Kelley v. Sage, 12 Kan. 109; Leever v. Hamill, 57 Ind. 423; Clegg v. Waterbury, 88 Ind. 21.

7

Hyde v. Greuch, 62 Md. 577.

8 Schoonover v. Myers, 28 Ill. 308. 9 Kelley v. Sage, 12 Kan. 109; Fay v.O'Neill, 36 N. Y. 11; Leever v. Hamill, 57 Ind. 423; McWilliams v. Hoban, 42 Md. 56; Gilbert v. Emmons, 42 Ill. 143; 89 Am. Dec. 412.

10 Hays v. Blizzard, 30 Ind. 457. 11 Walker v. Martin, 43 Ill. 508; Swartwout v. Dickelman, 12 Hun, 358; Zebley v. Storey, 117 Pa. St. 478. Contra, Merriman v. Morgan, 7 Or. 68

mination of the suit.' If the proceeding is ex parte to hold to bail, and the accused party has no opportunity to disprove the case made against him, he may maintain the suit, notwithstanding he was required to give bail.2 If the defendant was not served with process in the attachment suit, it is not necessary for him to show that it terminated in his favor; and it is not essential to the maintenance of an action for the abuse of legal process by maliciously suing out an attachment that the attachment has been vacated, even though this might have been done on motion.1

3

5

But it is not enough to show a discharge on account of a settlement between the parties; nor an entry of a nolle prosequi in a criminal case; nor the striking the case from

1 Cardival v. Smith, 109 Mass. 158; 12 Am. Rep. 682; citing Nicholson v. Coghill, 4 Barn. & C. 21; Watkins v. Lee, 5 Mees. & W. 270; Ross v. Norman, 5 Ex. 359; Bicknell v. Dorion, 16 Pick. 478; Savage v. Brewer, 16 Pick. 453; 28 Am. Dec. 255.

2 Stewart v. Gromett, 7 Com. B., N. S., 191.

3 Bump v. Betts, 19 Wend. 421. Rossiter v. Minnesota etc. Paper Co., 37 Minn. 296.

Mayer v. Walter, 64 Pa. St. 283; Hamilburgh v. Shepard, 119 Mass. 30; Emery v. Ginnan, 24 Ill. App. 65. In McCormick v. Sisson, 7 Cow. 715, S. obtained a warrant from a justice against M. on a charge of theft, and he was brought before the justice for examination, but before it was finished the parties stated that they had settled all matters of difficulty between them, and on that account he proceeded no further. It was held that no action would lie. "I think," said Woodworth, J., "the objection taken that there was no acquittal is fatal. The justice did not decide whether there were grounds for the complaint or not. It is essential that the plaintiff prove he has been acquitted. The discharge must be in consequence of the acquittal. The action cannot be sustained unless the proceedings are at an end by reason of an

acquittal. In this case the proceedings ended in consequence of a settlement. The justice heard a part of the testimony only, and formed no opinion on the subject."

Cardival v. Smith, 109 Mass. 158; 12 Am. Rep. 682; Brown v. Lakeman, 12 Cush. 482; Bacon v. Towne, 4 Cush. 217; Parker v. Farley, 10 Cush. 279; Heyward v. Cuthbert, 4 McCord, 355; Graves v. Dawson, 130 Mass. 78; 39 Am. Rep. 429; Langford v. R. R. Co., 144 Mass. 431. Contra, Brown v. Randall, 36 Conn. 56; 4 Am. Rep. 34; Hays v. Blizzard, 30 Ind. 457; Chapman v. Woods, 6 Blackf. 504; Stanton v. Hart, 27 Mich. 539; Woodworth v. Mills, 61 Wis. 44; 50 Am. Rep. 135; Hatch v. Cohen, 84 N. C. 602; 37 Am. Rep. 630; Yocum v. Polly, 1 B. Mon. 358; 36 Am. Dec. 583; Moulton v. Beecher, 8 Hun, 100; Apgar v. Woolston, 43 N. J. L. 57; Graves v. Dawson, 133 Mass. 419; Kennedy v. Holladay, 25 Mo. App. 503. In Indiana it has been held that if one institutes a criminal proceeding, and is the prosecuting witness therein, but fails to appear after several adjourn ments, and the accused, for that reason, is suffered to go at liberty, this is sufficient termination of the prosecution, even though there be no record of the discharge: Leever v. Hamill, 57 Ind. 423.