MALICIOUS action lies against any person who maliciously, and without reasonable and probable cause, prosecutes another, whereby the party prosecuted sustains an injury, involving damage either in person, property, or reputation. This definition is perhaps, strictly, not wide enough. There are other legal proceedings besides abortive criminal prosecutions which necessarily involve damage, such as the presentation of a bankruptcy petition against a trader, or of a winding-up petition against a company (Quartz Hill Mining Co. v. Hill). In the past, when the trader's property was touched by making him a bankrupt in the first instance, and he was left to get rid of the misfortune as best he could, of course he suffered a direct injury as to his property. But a trader's credit is as valuable as his property, and modern proceedings in bankruptcy, although they are dissimilar to the old proceedings, resemble them in the very im portant respect that they strike directly at a man's credit. On the other hand, the bringing of an ordinary action does not as a natural or necessary consequence involve any actionable injury to a man's property or reputation, because the law compensates with an order for payment by the unsuccessful party of the successful party's costs properly incurred in the action. Malice is of the essence of this wrong, and therefore a prosecutor who has set the law in motion with a bond fide desire to effect the punishment of an offender, need have no fear, in the event of the failure of the prosecution, of being adjudged by a court of law to pay damages to the person he has prosecuted. "From motives of public policy," said Lord Davey in Allen v. Flom!, law gives protection to persons prosecuting, even where there is no reason able and probable cause for the prosecution. But if the person abuses his privilege for the indulgence of his personal spite, he loses the protection, and is liable to an action, not for the malice but for the wrong done in subjecting another to the annoyance, expense, and possible loss of reputation of a causeless prosecution." In order that any one unsuccessfully prosecuted may obtain damages from his prosecutor he must prove three things. His position in this respect is thus summed up by Lord-Justice Bowen in Abreth v. North-Eastern Railway Co.: "The plaintiff has to prove, first, that he was innocent, and that his innocence was pronounced by the tribunal before which the accusation was made ; secondly, that there was a want of reason able and probable cause for the prosecution, or, as it might be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause ; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not hi furtherance of justice. All those three propositions the plaintiff has to make out, and if any step is necessary to make out any one of those three pro positions, the burden of making good that step rests upon the plaintiff." The proof of the first point is mainly formal. But the proof of the second point, the want of reasonable and probable cause, presents some difficulty ; at least it seems that the plaintiff is required to prove a negative. It does not, however, mean that the jury trying the case are to keep their minds in a particular attitude of distrust towards the plaintiff, until he has proved that there was not in fact any actual reasonable and probable cause in existence at all which could operate upon the defendant's mind when deterniining the advisability of the prosecution. It means that the plaintiff
must exhibit to the Court, as far as he can, all the circumstances surrounding the commission of the offence or alleged offence leading to the prosecution, and his relation to them and to the defendant. It then remains to be determined whether these circumstances were or were not properly and reasonably considered by the defendant before he initiated the prosecution. " In order to justify a defendant there must be a reasonable cause, such as ould operate on the mind of a discreet man ; there must also be a prob able cause, such as would operate on th2 niind of a reasonable man ; at all events such as would operate on the mind of the party making the charge, otherwise there is no probable cause for him." As to malice, proof of enmity or bad feeling by the defendant towards the plaintiff is sufficient ; and so, indeed, is the proof of any indirect motive, or any reason for the prosecu tion other than a desire to aid in the administration of the law. Malice, according to Sir Frederick Pollock, is "a wish to injure the pa-...ty- rather than to vindicate the law"; or, according to an American dictum," a malevo lent motive for action without reference to any hope of a remoter benefit to oneself to be accomplished by the intended liarm to another"; or it may be said to consist in "one's w ilful doing of an act or milful neglect of an obligation which he knows is liable to injure another regardless of the consequences, and a malignant spirit or a specific intention to hurt an individual is not an essential clement." See FALSE IMPRISON MENT.
name given to a document u.sed upon the exportation of goods for mhich no bond is required. It is a list of all goods shipped in the particular ship, and it should set forth the marks, numbers, and descrip tions of the packages, and the names of the consignors thereof according to the bills of lading. The master or owner of the ship, or his agent, must deliver the manifest to the proper Customs officer within six months after the final clearance of the ship; and at the same time a declaration must be made that the manifest contains a true account of all the cargo of the ship. And the owner or master of a steamship trading to a foreign port, or his agent, is required also to deliver to the same officer a certificate of the quantity of coals or fuel shipped for use on the voyage. An omission in any of these respects involves liability to a fine of .1)5. A manifest may not be required, however, where specifications are delivered—as to which see the article on IMPORTATION AND EXPORTATION. But a specification, in order to avoid the necessity for a manifest, must be accompo.nied by a declaration that it contains a true account of all the shipped goods for which no bond is required. This declaration can be made by either the owner or master of the ship or his agent. The Customs officers have power, not withstanding the delivery of a specification and declaration, to still order a full and complete manifest to be delivered. This order can only be made by a written notice addressed to the master or owner, and delivered at the last known place of abode or business of the owner or his agent, and it must be complied with within forty-eight hours. Non-compliance will incur the above penalty.