MALICIOUS PROSECUTION. 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.
2. Where the defendant commenced a crimi nal prosecution wantonly, and in other re spects against law, he will be responsible. Addis. Penn. 270 ;1.2 Conn. 219. The prose cution of a civil suit, when malicious, is a good cause of action, even when there has been no arrest. 1 Pet. C. C. 210 ; 11 Conn. 582 ; 1 Wend. N. Y. 345. See 1 Penn. 235.
3. The action lies against the prosecutor, and even against a mere informer, when the proceedings are malicious. 9 Ala. 367. But grand jurors are not liable to an action for a malicious prosecution for information given by them to their fellow-jurors, on which a prosecution is founded. Hard. Ky. 556. Such action lies against a plaintiff in a civil action who maliciously sues out the writ and prose cutes it, 16 Pick. Mass. 453 ; but an action does not lie against an attorney at law for bringing the action, when regularly employed. 16 Pick. Mass. 478. See 6 Pick. Mass. 193.
4. There must be malice and want of pro bable cause. 1 Wend. N. Y. 140, 345 ; 7 , Cow. N. Y. 281 ; 2 P. A. Browne, Penn.
Appx. xlii. ; Cooke, Tenn. 90 ; 4 Litt. Ky. 334 ; 3 Gill & J. Md. 377 ; 1 Nott & M'C. So.
C. 36 ; 2 id. 54,143 ; 12 Conn. 219 ; 3 Call. Va. 446 ; 3 Mas. C. C. 112. See MALICE.
The proceedings under which the original prosecution or action was held must have been regular, in the ordinary course of jus tice, and before a tribunal having power to ascertain the truth or falsity of the charge and to punish the supposed offender, the now plaintiff. 3 Pick. Mass. 379,383. When the proceedings are irregular, the prosecutor is a trespasser. 3 Blackf. Ind. 21ff.
5. The maliciou s prosecution or action mu st be ended, and the plaintiff must show it was groundless, either by his acquittal or by ob taining a final judgment in his favor in a civil action. 1 Root, Conn. 553 ; 1 Nott & M'C. So. C. 36 ; 2 id. 54,143 ; 7 Cow. N. Y. 715; 2 Dev. & B. No. C. 492.
The remedy for a malicious prosecution is an action on the case to recover damages for the injury sustained. 5 Stew. & P. Ala. 367 ; 2 Conn. 700 ; 11 Mass. 500 ; 6 Me. 421 ; 3 Gill & J. Md. 377. See CASE.
See, generally, Buller, Nisi P.11 ; 1 Saund.
; 12 Mod. 208 ; 1 Tenn. 493-551 ; Bacon, Abr. Actions on the Case (H. ) ; Bouvier, Inst. Index.