68

prosecution been "disposed of in such a manner that it cannot be revived, and the prosecutor, if he intends to proceed further, must institute proceedings de novo?" 67 It is not necessary that the prosecution be concluded by a trial upon the merits, although this has been declared essential by an eminent judge. Accordingly “a criminal prosecution may be said to have terminated: (1) Where there is a verdict of not guilty; (2) where the grand-jury ignore the bill; (3) where a nolle prosequi is entered, and (4) where the accused has been discharged from bail and imprisonment." 69 If the prosecution be one, in which the victim has no opportunity to contest the complaint and obtain a decision, the rule requiring a termination in his favor does not apply. A voluntary abandonment of the original prosecution, with its formal dismissal on that account, is a termination thereof in the victim's favor; but if its dismissal is due to a compromise, the action cannot be said to have terminated in his favor. This is upon the ground that "the termination must be such as to furnish prima facie evidence that the action was without foundation." Where there is a compromise, the termination does not furnish evidence that the prosecution was improperly instituted, but indicates that the one prosecuted is in the position of admitting that his antagonist had probably cause for his proceeding."1

70

67 Apgar v. Woolston, 43 N. J. L. 57, 66 (1881).

es Shaw, C. J., in Parker v. Farley, 10 Cush. (64 Mass.) 279 (1852). This view has been modified by later cases in that state: cf. Graves v. Dawson, 133 Mass. 419 (1882).

69 Lowe v. Wartman, 47 N. J. L. 413, 1 At. 489 (1885); Brown v. Randall, 36 Conn. 56, 4 Am. R. 35 (1869); Hatch v. Cohen, 84 N. C. 602, 37 Am. R. 630 (1881); Douglass v. Allen, 56 Ohio St. 156, 46 N. E. 707 (1897); Driggs v. Burton, 44 Vt. 124 (1871); Rider v. Kite, 61 N. J. L. 8, 38 At. 754 (1897); Craig v. Ginn, 3 Penne. (Del.) 117; 48 At. 192, 94 Am. St. R. 77 (1901). TO Steward v. Gormett, 7 C. B. N. S. 191, 29 L. J. C. P. 170 (1859); Hyde v. Grench, 62 Md. 577 (1884);

Bump V. Betts, 19 Wend. 421 (1838). In the first two cases, the malicious proceeding was an er parte application for arrest of the plaintiff, and an order that he give sureties to keep the peace. In the last, there was a malicious attachment of property, with no opportunity to defend.

71 Wilkinson V. Howell Moo. & Mal. 495 (1830); Marks v. Gray, 42 Me. 86 (1856); Sartwell v. Parker, 141 Mass. 405, 5 N. E. 807 (1886); Rachelman v. Skinner, 46 Minn. 196, 48 N. W. 776 (1891); McCormick v. Sisson, 7 Cow. 715 (1827); Mayer v. Walter, 64 Pa. 283 (1870); Russell v. Morgan, 24 R. I. 134, 52 At. 809 (1902); Craig v. Ginn, 3 Penne. (Del.) 117, 48 At. 192, 94 Am. St. R. 77 (1901).

Malice.

72

This term in its present connection, means something more than "the intentional doing of a wrongful act to the injury of another, without justification or legal excuse therefor." "2 It means malice in fact, as distinguished from malice in law. It means that the conduct of the original prosecutor was actuated by some "improper or sinister motive;" that he instituted the prosecution not "with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact," that he did this "from an indirect and improper motive, and not in furtherance of justice."

76

77

"75

73

On the other hand, the term is not to be understood in its popular signification. The plaintiff is not bound to show that the defendant acted from motives of resentment, or ill-will or hatred towards him. He establishes malice by showing that the defendant procured the warrant to be issued by making an intentionally false affidavit; " or that, having the opportunity of discovering the facts, he failed to take advantage of it, and recklessly or with culpable negligence instituted the prosecution.78 Express evidence of malice need not be given. It may be established by circumstantial evidence, and is generally proved in this way. from a want of probable cause. tion exclusively for the jury,"

T2 Ahrens & Ott. Mfg. Co. v. Hoeher, 106 Ky. 692; 51 S. W. 194 (1899); Vanderbilt v. Mathis, 5 Duer (N. Y.) 559 (1856).

73 Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116 (1878).

Abrath v. North E. Ry., 11 Q. B. D. 440, 448-9, 52 L. J. Q. B. 620 (1883).

Ibid, p. 455.

7 Mitchell v. Jenkins, 5 B. & A. 588, 15 L. J. Q. B. 221 (1833); Pullen v. Glidden, 66 Me. 202 (1877); Wiggin v. Coffin, 3 Story 1, Fed. Cas. No. 17, 204 (1836).

"Collins v. Love, 7 Blackf. (Ind.) 416 (1845); Navarino v. Dudrap, 66 N. J. L. 620, 50 At. 353 (1901); Dennis V. Ryan, 63 Barb. 145

It may be inferred by the jury But its "existence is always a quesalthough when the plaintiff's evi

(1872); S. C. 65 N. Y. 385, 22 Am. R. 635 (1875).

79 Hamilton v. Smith, 39 Mich. 222 (1878); Stubbs v. Mullholland, 168 Mo. 47, 67 S. W. 650 (1902).

TO Stewart v. Sonneborn, 98 U. S. 187 (1878); Wheeler v. Nesbit, 24 How. (U. S.) 545 (1860); Johnson v. Eberts, 11 Fed. 129 (1880); Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 Am. St. R. 79 (1890); Boyeman v. Shaw, 37 Ark. 160 (1881); Harkrader v. Moore, 44 Cal. 144 (1872); Porter v. White, 5 Mackey (16 Dis. Col.) 180 (1886); Harpham v. Whitney, 77 Ill. 32 (1875); Newell v. Downs, 8 Blackf. (Ind.) 523 (1847); Parker v. Parker, 102 Ia. 500, 71 N. W. 421 (1897); Atchi

dence fails to make a prima facie case of malice, the court should non-suit him.80

81

Probable Cause. This term has been defined as "such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice upon the facts within his knowledge, to believe that the person accused is guilty," or, if the prosecution is a civil suit, to believe that he had a cause of action " 82 against the one whom he prosecutes. Some courts have declared that the facts and circumstances should be such as would convince a "cautious" man that there was good ground for the prosecution; 83 but the weight of authority is in favor of the statement contained in the definition quoted above. While the law tends to discourage unreasonable invasions of personal rights, it has regard also for the public welfare and for the interests of those who have been wronged. If the test of probable cause is made too strict and severe, persons will be discouraged from setting the wheels of justice in motion.85

84

The question of probable cause is one for the court and not for the jury. Only by reserving it for the court, can anything like cer

son

36

Co. v. Watson, 37 Ks. 773, (1887); Medcalfe v. Brooklyn Co. 45 Md. 198 (1876); Greenwade v. Mills, 31 Miss. 464 (1856); Johnson v. Chambers, 10 Iredell (32 N. C.) 287 (1849); Gee v. Culver, 12 Or. 228, 11 Pac. 302 (1885); Cooper v. Hart, 147 Pa. 595, 23 At. 833 (1892); Caldwell v. Burnett, 22 S. C. 1 (1884); Evans v. Thompson, 12 Heisk. (Tenn.) 534 (1884); Barron v. Mason, 31 Vt. 189 (1858); Forbes V. Hagman, 75 Va. 168 (1881).

So Lauterbach v. Netzo, 111 Wis. 326, 87 N. W. 230 (1901).

81 Heyne v. Blair, 62 N. Y. 19, 22 (1875); Bacon v. Towne, 4 Cush. (58 Mass.) 217 (1849); Kansas, etc., Co. v. Galloway, 74 S.

W. 521 (1903).

C. 693 (1824).

Ark.

Ravenga v. Mackintosh, 2 B. &

83 Munns v. Dupont, 3 Wash. C. C. 31, Fed. Cas. No. 9,926 (1811): Richey v. McBean, 16 Ill. 63 (1855); Cole v. Curtis, 16 Minn. 181 (1870); Ash v. Marlow, 20 O. 119 (1853).

Flam v. Lee, 116 Ia. 289, 90 N. W. 70 (1902); Bank of Miller v. Richmon, 64 Neb. 111, 89 N. W. 627 (1902); McClafferty v. Philp, 151 Pa. 86, 24 At. 1042 (1892); Eggett v. Allen, 106 Wis. 633, 82 N. W. 556, (1900).

85 Allen v. Flood (1898), A. C. 1, 125, 172, 67 L. J. Q. B. 119, 185, 209; Munns v. Dupont, 3 Wash. C. C. 31. Fed. Cas. No. 9,926 (1811).

se Ahrens, etc., Co. v. Hoeher, 106 Ky. 692, 51 S. W. 194 (1899); Bank of Miller v. Richmon, 64 Neb. 111, 89 N. W. 627 (1902); Jones v. Wilmington, etc., Ry., 125 N. C. 227, 34 S. E. 398 (1899).

tainty as to what constitute probable cause be obtained. Of course, if the evidence is conflicting, or, if different inferences may be drawn by reasonable men from uncontradicted evidence, the jury are to determine the facts, or to state their inferences.87

Success or Failure of Original Prosecution. If the termination of the original prosecution was in favor of the prosecutor, and the decision has not been reversed, it furnishes conclusive proof of probable cause for the prosecution.88 When it has been reversed for legal error, but it is not shown to have been procured by fraud. or other unlawful means, the weight of authority is in favor of treating it as still conclusive on the question of probable cause.89 Indeed, a few courts refuse to inquire, in the suit for malicious prosecution, how the termination of the original proceeding was secured, if it was adverse to the present plaintiff." On the other hand, it has been declared that the true principle to be applied is this: "A conviction is always prima facie evidence of the existence of probable cause; but this is a rule of evidence, founded upon the fact that, ordinarily, if a court has proceeded to conviction, it must have had before it such evidence as in the mind of a prudent and reasonable man would convince him of the guilt of the accused; and, therefore, a subsequent reversal, while it may show that the accused was in fact innocent, does not show that there was no probable cause for believing him guilty. Where, however, the conviction is under such circumstances as to deprive it of such naturally evidentiary effect, this presumption ceases."

ST Wiggin v. Coffin, 3 Story, 1, Fed. Cas. No. 17,264 1836); Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703 (1888); Johnson v. Miller, 63 Ia. 529, 50 Am. R. 758 (1884).

Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 666 (1898); Forster v. Orr, 17 Or. 447. 21 Pac. 440 (1889); Swepon v. Davis, 109 Tenn. 99, 70 S. W. 65, 59 L. R. A. 501 (1902).

Crescent City Co. v. Butcher's Union, 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614 (1886); Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703 (1898); Adams v. Bicknell, 126 Ind. 210, 25 N. E. 804, 22 Am. S. R. 576

(1890);

Morrow v. Wheeler, etc., Co., 165 Mass. 349, 43 N. E. 105 (1896); Cloon v. Gerry, 13 Gray (79 Mass.), 201 (1859); Griffin v. Sellers, 2 Dev. & B. L. (19 N. C.) 492, 31 Am. Dec. 422 (1837).

90 Clements v. Odorless & Co., 67 Md. 461, 10 At. 442, 1 Am. S. R. 409 (1887); Parker v. Huntington, 7 Gray (73 Mass.), 36, 66 Am. Dec. 455 (1856); Griffin v. Sellers, 4 Dev. & B. L. (20 N. C.) 177 (1838); Herman v. Brookerhoff, 8 Watts (Pa.),, 240 (1839). In Griffin v. Sellers it is said, that were the rule otherwise, "the result would be intermi

92

The failure of the original prosecution is not conclusive evidence of a want of probable cause. Whether the prosecutor had such cause does not turn upon the actual guilt of the accused, or the state of the case, but upon the honest and reasonable belief of the prosecutor. In most jurisdictions, the failure of the prosecution, while a fact which the plaintiff must establish in order to make out his case, is not evidence tending to show the want of probable cause.93 In other jurisdictions, it is deemed evidence of a want of probable cause, but does not shift the burden of proof to the defendant.9* In still others, it is held to make out a prima facie case, and casts upon the defendant the burden of showing that he had probable cause.95

The holding of an accused person by a committing magistrate, as well as the finding of an indictment by a grand-jury, is generally accounted evidence of probable cause; 90 and his discharge upon a preliminary examination, is treated by some courts as evidence of a want of probable cause."7

66

Advice of Counsel as Evidence of Probable Cause. Nothing is better settled," an eminent court has declared, "than that when the prosecutor submits the facts to his attorney, who advises they are sufficient, and he acts thereon in good faith, such advice is a defense to an action for malicious prosecution." 98 Not

nable litigation between the parties, alternately changing sides."

91 Nehr v. Dobbs, 47 Neb. 863, 869, 66 N. W. 864 (1891).

92 Foshay v. Ferguson, 2 Den. (N. Y.) 617 (1846).

93 Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116 (1878); Thompson v. Rubber Co., 56 Conn. 493, 16 At. 554 (1888); Anderson v. Friend, 85 III. 135 (1877); Philpot v. Lucas, 101 la. 478, 70 N.. W. 625 (1897); Stone V. Crocker, 24 Pick. (41 Mass.) 81 (1832); Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223, 10 Am. S. R. 322 (1888); Apgar v. Woolston, 43 N. J. L. 57 (1881); Willard v. Holmes, 142 N. Y. 492, 37 N. E. 480 (1894); Eastman v. Monastes, 32 Or. 291, 51 Pac. 1095, 67 Am. St. R. 531 (1898); Bekke

Tex.

72 S.

land v. Lyons,
W. 56 (1903); Cullen v. Hanisch,
114 Wis. 24, 89 N. W. 900 (1902).

94 Rankin v. Crane, 104 Mich. 6, 61 N. W. 1007 (1895); Noblett v. Bartsch, 31 Wash. 24, 71 Pac. 551 (1903); Venal v. Core, 18 W. Va. 1 (1881).

5 Barhight v. Tammany, 158 Pa. 545, 28 At. 135, 38 Am. S. R. 853 (1893).

Ross v. Hixon, 46 Ks. 550, 26 Pac. 955, 26 Am. S. R. 123 (1891), with valuable note; Perkins V. Spaulding, 182 Mass. 218, 65 N. E. 72 (1903).

97 Stemper v. Raymond, 38 Or. 16, 62 Pac. 20 (1900).

98 McClaferty v. Philp, 151 Pa. 86, 24 At. 1042 (1892), accord.; Stewart v. Sonneborn, 98 U. S. 187, 25