MALICIOUS PROSECUTION. The civil wrong or tort (q.v.) of having prosecuted a per son unsuccessfully, maliciously, and without probable cause. In a few jurisdictions it has been made a criminal offense by statute. It is the right of every one to set the law in motion for the punishment of criminal offenses or for the enforcement of his individual claims. The courts have ordered that 'public policy requires that parties may freely enter court to settle their grievances, and that they may do this without imminent exposure to a suit for damages in case of an adverse decision by judge or jury." In order to recover, the plaintiff must estab lish by proof: ( 1 ) That the prosecution of which he complains was instituted by the de fendant; (2) that it has terminated in plaintiff's favor; (3) that the defendant acted without probable cause; (4) that he acted maliciously; and (5) that plaintiff was damaged by the prose cution. If he fails to establish any of these fun damental facts, he loses his suit.
While it must be shown that the defendant was the one who set the original prosecution afoot, it is not necessary to prove that lie at tended to it personally. Ile may have set the law in motion through an agent. Hence a cor poration, a joint-stock company, or a partnership, or any principal may be liable for a malicious prosecution in which only an agent figured per sonally.
The reason for requiring a termination of the original suit in the present plaintiff's favor, be fore allowing him to sue for malicious prosecu tion, is that it would not be consistent with the principles on which law is administered for an other court, not being a court of appeal, to hold that a wrong decision was made in the original ease. To prevent unnecessary litigation, the original defendant must try the issue tendered him in that case, and must then establish the groundlessness of the prosecution. Of course, this strict rule does not apply to a proceeding which, from its nature, does not admit of such a trial—for example, the search of one's house' under a warrant for the discovery of stolen prop erty or incriminating evidence. No issue is here tendered for trial. If the search is fruitless and was instituted without probable cause and with malice, an action is maintainable. Where, however, the original defendant has an oppor tunity to establish the groundlessness of the orig inal he is hound to show a legal end ing of that proceeding in his favor. Ordinarily, it is not difficult to say when such an ending has been reached. A final decision of the trial court or magistrate upon the merits is of course a legal determination; so, as a rule, is the voluntary abandonment of the original prose cution, without the defendant's request and con sent.
Tf the original proceeding honestly terminated adversely to the defendant, the question of prob able cause is settled against him. Even though he obtains a reversal of the judgment, and on a new trial the decision is in his favor, the con clusive effect of the first decision remains. At
least such is the prevailing view. unless the origi nal decision was obtained fraudulently; although some courts treat an adverse decision which has been reversed on appeal as prima facie evidence only of probable cause. On the other hand, a termination of the original prosecution in the de fendant's favor does not prove a want of probable cause for its institution. Whether the original prosecutor set the law in motion without prob able cause is a mixed question of law and of fact. The truth of the circumstances alleged to show probable excuse is a question of fact which is to be determined by the jury; but whether, admit ting their truth, they amount to probable cause, is a question of law for the court. Frequently the person sued for malicious prosecution proves that the original proceeding was taken upon the advice of counsel. In order to shield himself behind such advice, he must show not only that he consulted reputable and capable counsel, but that the advice was based upon a full and honest disclosure of all the material facts within his knowledge and belief.
Probable cause having been proved, the plaintiff must prove malice and damage. Malice. in this connection, means something more than the inten tional doing of a wrongful act without legal ex cise. It is not a legal fiction. It involves the idea of a malevolent' or sinister purpose; not necessarily spite or hatred against an individual. but at least an improper or evil motive in setting the law in motion. Its existence is a question for the jury, and it may be inferred from a want of probable cause; but the jury is not bound to draw that inference even though the groundless ness of the prosecution is admitted.
Damage may be shown by proving that it was a criminal prosecution, or, it being a civil suit, that it was attended by an arrest of his person or seizure of his property, or scandal to his repu tation (as in bankruptcy proceedings or an in quiry into his sanity), and in these cases he need give no evidence of special loss. "Such a prose cution necessarily and manifestly imparts dam ages." But if it was a civil suit, unattended by any of the incidents above referred to, lie must show that it caused him special loss or harm in order to recover. Even though lie is able to show this, he will he defeated in England and in many of the States, upon the doctrine that "in con templation of law the defendant who is unreason ably sued in a civil action is sufficiently indemni fied by a. judgment in his favor which gives costs against his opponent." This legal fiction is los ing favor. Consult Newel, Malicious Prostvo tion, False Imprisonment, and Abuse of Process (1S92), and the authorities referred to under Tour. such as Pollock, Law of Torts (7th ed., London, 1903).