MALICIOUS PROSECUTION. A wanton prosecution made by a prosecutor in a crim inal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular procesp and proceeding, which the facts did not war rant, as appears by the result. 'Actions for malicious prosecution are not favored by the law ; they are to be carefully guarded and their true principles strictly adhered to ; 1 Ld. Raym. 314; Cloon v. Gerry, 13 Gray (Mass.) 201; Hurd v. Shaw, 20 Ill. 354 ; Newell, Mal. Pros. 21.
Where the defendant commences a criminal prosecution wantonly, and in other respects against law, he will be responsible ; Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611. Any motive other than that of simply instituting a prosecution for the purpose of bringing the person to justice is a malicious motive ; 10 Exch. 356.
The prosecution of a civil suit, when mali cious, is a good cause of action, even when there has been no seizure of property; Wade v. Bank, 114 Fed. 377 ; Lipscomb v. Shofner, 96 Tenn. 112, 33 S. W. 818; or no arrest; Whipple v. Fuller, 11 Conn. 582, 29 Am. Dec. 330; Pangburn v. Bull, 1 Wend. (N. Y.) 345. See O'Brien v. Barry, 106 Mass. 3op, 8 Am. Rep. 329 ; Big. Torts 71; Brounstein v. Sah lein, 65 Hun 365, 20 N. Y. Supp. 213; O'Neill v. Johnson, 53 Minn. 439, 55 N. W. 601, 39 Am. St. Rep. 615; Newell, Mal. Pros. 43. But see 1 Am. Lead. Cas. 261; 21 Am. L. Reg. N. S. 287 (by John D. Lawson) ; Wetmore v. Mellinger, 64 Ia. 741, 18 N. W. 870, 52 Am. Rep. 465 ; Mayer v. Walter, 64 Pa. 289 ; Gor ton v. Brown, 27 Ill. 489, 81 Am. Dec. 245. In such cases the want of probable cause must be very palpable; very slight grounds will not- justify an action ; Big. Torts 71. See L. R. 4 Q. B. 730. On the whole the weight of authority seems to be against the maintenance of an action for the malicious prosecution of a civil suit in which no pro cess other than the summons was issued ; Eastin v. Bank, 66 Cal. 123, 4 Pac. 1106, 56 Am. Rep. 77; Newell, Mal. Pros. 37 ; Smith v. Buggy Co., 66 III. App. 516. The bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support an ac tion for malicious prosecution ; 11 Q. B. D. 690; contra, Closson v. Staples, 42 Vt. 209, 1 Am. Rep. 316 ; otherwise of bankruptcy pro ceedings maliciously instituted, without prob able cause; 11 Q. B. D. 674; brought after the adjudication in bankruptcy has been set aside ; 10 App. Cas. 210; and of civil proceedings begun by attachment, or by ar rest ; Poll. Torts 303 ; Tamblyn v. Johnston,
126 Fed. 267, 62 C. C. A. 601; although the goods are at once returned ; Vincent v. Mc Namara, 70 Conn. 332, 39 Atl. 444 ; also, prob ably, of bringing and prosecuting an action maliciously and without probable cause in the name of a third person ; id.; a malicious prosecution of extradition proceedings may be the basis of an action ; Castro v. De Uriarte, 16 Fed. 93. The assertion of patent rights may be so conducted as to constitute malicious prosecution; Virtue v. Mfg. Co., 227 U. S. 8, 33 Sup. Ct. 202, 57 L. Ed. 393 ; but not interference proceedings in the patent office, though maliciously instituted ; B. F. Avery & Son v. Plow Works, 163 Fed. 842.
An action will lie for damages for wrong fully procuring the appointment of a receiver for a solvent corporation ; it need not appear that it was done maliciously and without probable cause; Thornton-Thomas Mercantile Co. v. Bretherton, 32 Mont. 80, 80 Pac. 10; see also Joslin v. Williams, 76 Neb. 594, 107 N. W. 837, 112 N. W. 343 ; Cutter v. Pollock, 7 N. Dak. 631, 76 N. W. 235.
There is a distinction between a malicious use and a malicious abuse of legal process. Abuse is where it is used "for some unlawful object, not the purpose which it is intended by the law to effect—a perversion of it" ; Whelan v. Miller, 49 Pa. Super. Ct. 91; Mayer v. Walter, 64 Pa. 283.
The action lies against the prosecutor, and even against a mere informer, when the proceedings are malicious ; Randall v. Henry, 5 Stew. & P. (Ala.) 367. But grand jurors are not liable for information given by them to their fellow-jurors, on which a prosecution is founded ; Black v. Sugg, Hard. (Ky.) 556. Such action lies against a plaintiff in a civil action who maliciously sues out the writ and prosecutes it ; Savage v. Brewer, 16 Pick. (Mass.) 453, 28 Am. Dec. 255; but an action does not lie against an attorney at law for bringing the action, when regularly retained ; Bicknell v. Dorion, 16 Pick. (Mass.) 478. See Pierce v. Thompson, 6 Pick. (Mass.) 193. The attorney, however, must act in good faith. If an attorney knows that there is no cause of action, and dishonestly and with some sinister view, for some purpose of his own, or for some other ill purpose which the law calls malicious, causes the plaintiff to be arrested and im prisoned, he is liable ; 34 Eng. C. L. R. 276 ; Newell, Mal. Pros. 23.