FALSE IMPRISONMENT. * 123 (HOW THE ACTION OF MALICIOUS PROSECUTION CAN BE MAINTAINED AND OTHER INCIDENTS CONNECTED WITH IT, STATED IN BRIEF.) The foundation of the action for malicious prosecution is the malice of the defendant either express or implied; and whatever engines of the law malice may employ to compass its evil designs against innocent persons, the action on the case affords an adequate remedy to the party injured. The essential ground of the action is that a legal prosecution was carried on without a probable cause; but this must be expressly proved and cannot be implied. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances, alleged to show it probable or not probable, are true and existed, and a matter of fact; but, whether supposing them true, they amount to a probable cause, is a question of law. The question of malice, which is to be considered not in the sense of hatred or spite but of malus animus, is one which must go to the jury and may be implied from want of probable cause. The following grounds will support the action: Damage to a man's fame; danger to his life, limb, or liberty; damage to a man's property, as where he is forced to expend money in necessary charges to acquit himself of the crime of which he is accused; a civil suit, though there be no seizure of person or property. The defence of proper and competent counsel will not avail, if the defendant was unlawfully encouraged in bringing suit, or if the statement of facts was knowingly incorrect, or counsel or client acted in bad faith toward each other. The form of the action for malicious prosecution is an action of trespass on the case, which in many states, by legislation, is the action for trespass. If two or more join in a prosecution without reasonable or probable cause, they are jointly and severally liable to the party injured; and one who participates voluntarily in such prosecution, is liable in damages whether there were others concerned in it or not. It is requisite to aver in the declaration or statement, every allegation proper to support the action, viz: that the defendant falsely, maliciously, and without reasonable or probable cause did thus and so to the injury of the plaintiff, and to state the trial and acquittal; and as the action cannot be maintained till the prosecution be terminated, such fact must appear upon the face of the declaration; but the want of this averment is cured by verdict, because it will be presumed that it has been proven at the trial. Care must be taken in framing the declaration or statement, that it will be a full averment of the substance of the charge, told in the style of our simple, abridged pleadings. The usual matters of evidence are, that the defendant had no reasonable or probable grounds of suspicion against the plaintiff, and that the defendant was actuated by malice. This rule seems to be founded upon principles of policy and convenience, because the prosecutor should be protected in his legal proceedings, however malicious his private motives may have been, provided he had probable cause for preferring the charge. This protection seems to be one of necessity when it is considered how often it happens that the facts upon which the prosecution is founded are confined to the knowledge of the prosecutor. Any circumstances, which disprove the malice of the defendant in preferring the charge, should be produced, and it is requisite for the plaintiff to adduce evidence arising out of the circumstances, to show it groundless. Where the defendant gives evidence of probable cause, a witness may be examined as to whether the plaintiff was a man of bad character, which is admissible in mitigation of damages. If the action be not commenced within six years, in most of the states, the Statute of Limitations will bar. The plaintiff can prove in aggravation of damages, the length of his imprisonment, his expenses, situation and circumstances, or the peril or jeopardy to which a man's life or liberty may be subjected, or the prejudice to his fame and reputation or the expenses of conducting his defence. INDEX. [The paging refers to the [*] pages.] Acquittal prisoner's right to copy of record of, 101. Acquittal of one offence, conviction for another; how far favourable termi- Acquittal of plaintiff must be pleaded, 99. Action in rem: maliciously bringing, 21. favourable termination, 100. Agent: authority of, to prosecute for corporation, 87, 91. Amount of damages, 118. Appeal: successful, against conviction, not favourable termination, 101. Articles of the peace: maliciously exhibiting, 25. favourable termination, 103. Assault: reasonable cause for prosecution for, 42. Bankrupt: reasonable cause for arresting for rates, 50. Bankruptcy: maliciously taking proceedings in, 22—24, Belief of prosecutor: relevant to question of reasonable cause, 43—56. application for: favourable termination, 103. Binding over to prosecute: not a defence to action, 16. where by mistake, 18. Burden of proof of absence of reasonable cause on plaintiff, 104–115. Case, action on, "in the nature of conspiracy," 3. Character of plaintiff: evidence of, 116. Civil action: maliciously bringing, 20. Company: malicious petition to wind up, 24. Conspiracy: action of, 1-4. action of, lay only against more than one, 3. writ of, 1-4. form of writ of, 1. statutory definition of, 2. Conspiracy to defraud: prosecution for, 70. Conviction for offence, acquittal of another: how far favourable termination, Conviction for offence not charged in indictment, 15. [The paging refers to the [*] pages.] Conviction reversed on appeal: not favourable termination, 101. Corporation: agent's authority to prosecute for, 87, 91. Corporation aggregate: doubtful whether action lies against, 86-98. Costs, 117-119. opinion of Lord Bramwell, 91. opinion of Lord Justice Fry, 88.⚫ Costs of action for indictment containing several charges, 14. Counsel: instructing, may amount to prosecution, 9. Counsel's opinion: relevance of, to reasonable cause, 43. Court-martial: malicious proceedings in, 29, 86. Criminal Law Amendment Act, 1885: maliciously procuring search warrant Crown: Qu. whether action lies against the officers of, 85. Damages, 117-119. amount of, 118 the ground of action for malicious prosecution, 3. Declaration or narr: requirements of, 31. Ecclesiastical Court, prosecution in, 18. Ex parte proceedings: favourable termination not necessary, 103. False imprisonment: distinction between malicious prosecution and, 120— 123. Favourable termination: what constitutes, 99–103. evidence of, 100. must be pleaded, 99. conviction for one offence, acquittal of another, 103. Favourable termination not necessary where proceedings ex parte, 103. Grand juror: no action against, for finding a bill, 85. Grand jury: preferring bill before, amounts to prosecution, 10. Hearsay may be reasonable cause, 52. Ignorance of law: may possibly amount to malice, 36. Ignorance of law not reasonable cause, 49. Independent charges: indictment containing, 13. costs, 14. Indictment: bad, amounts to prosecution, 11. Indictment for one offence conviction for another, 15. Information: when swearing before magistrate amounts to a prosecution, 6. INDEX. [The paging refers to the [*] pages.] 127 Information of prosecutor: relevant to question of reasonable cause, 43-56. Instructing counsel may amount to prosecution, 9. Judge: no action against as such, 85. Jurisdiction: prosecution before a court of insufficient, 13. Justice of the peace: no action against as such, 85. Lunacy: maliciously issuing a commission of, 26. Magistrate: when information sworn before, amounts to a prosecution, 6. meaning of, 34, 37. a question for the jury, 84. may be inferred from want of reasonable cause, 29. not actionable where there is reasonable cause, 28. Malicious ne exeat regno, 20. Malicious arrest, 19. Military service of the crown: proceedings between persons in, 29, 86. Naval service of the Crown: proceeedings between persons in, 29, 86. Nisi Prius: maliciously suing at, 20 Officers of Navy or Army: rights as to malicious prosecution, 29, 86 Oral charge: may be sufficient prosecution, 8. Outlawry: maliciously proceeding to, 26. Part of a prosecution: reasonable cause for, 49. Perjury: prosecution for, on several assignments, 13, 14. Petition to wind up a company: maliciously presenting, 24. Pleading, 31. Proof of absence of reasonable cause: onus on plaintiff, 104–115. what amounts to, 5-18. appearing as witness may amount to, 9. bad indictment amounts to, 11.. instructing counsel may amount to, 9 preferring bill before grand jury amounts to, 10 when information sworn before a magistrate amounts to, 6. before a court of insufficient jurisdiction, 13. following false imprisonment, 122. may consist in oral charge only, 8. Prosecution by order of judge: when actionable, 16. |