given is that the allowance of taxed costs is regarded as sufficient punishment to the plaintiff for prosecuting, and recompense to the defendant for defending, such an action. In England, the taxed costs which may be awarded to a successful defendant, include not only fees of court officers and witness, but attorney's charges for preparing the case for trial, and the honorarium of the barrister who tries it, and in a number of American states a like taxation of costs prevails. But in Ohio, the successful party in an ordinary action recovers only the fees of witnesses and court officers, leaving his own personal expenses in preparing the case, in attending the trial, and his attorney's fees for preparation and for trial, to be paid without reimbursement. Taxed costs are not here regarded as affording full compensation for expenses incurred, for in cases where damages may be recovered for malicious injury, fees of counsel, as well as court costs, are included in compensatory, and not punitive damages. The reason for the rule having failed, there is much ground for saying that the rule itself fails." It is clear, that this action may be maintained for maliciously and without probable cause, suing out an attachment," and seizing the goods of the plaintiff,13 even if there was an indebtedness at the time11 due by the plaintiff.15 The reason for the rule is founded in a well-known principle of common law. In Braid vs. Hinchman,16 the Court said: "There are but few, if any, wrongs for which the law does not provide a remedy, and if a man is hurt or damaged in his property, business, credit, or reputation, by the malicious commencement or prosecution of a civil suit, without probable cause, the better doctrine is that he can maintain an action on the case for such hurt or damage." The original suit, whether criminal or civil, must have been instituted or participated in by the defendant." Liability for malicious prosecution may attach either through the personal acts of the defendant18 or the acts of his agent,19 or attorney,20 or by ratification by the defendant.21 SECTION 64. DEFENDANT'S CONNECTION WITH THE ORIGINAL ACTION. The plaintiff, in an action for malicious prosecution, must show the defendant's connection with the original action. It is sufficient if the defendant either commenced the action or continued it after the want of probable cause had been shown.22 Where an action was instituted by several persons, in the name of one, with probable cause, and afterward during the progress of the suit, the person in whose name the action was commenced, discovered that there is no probable cause of action, but did not dismiss the suit, he was held to be alone liable for malicious prosecution.23 Where one party caused the arrest of another upon a warrant for larceny and the justice of the peace, before whom the case comes, of his own motion, changed the charge 17 Wilkinson vs. Arnold, 11 Ind., 45; Cook vs. Proskey, 138 Fed. 273; 77 D. C. A., 563. 18 Hurd vs. Shaw, 20 Ill., 354; McMorris vs. Howell, 89 N. Y. App. Div., 272;85 N. Y. Suppl., 1018. One who both makes an arrest and originates the proceeding in which it is made may be liable for malicious prosecution, although protected as to the arrest. Register vs. Lee Sam., 94 Fed., 343; Vol. IV.-10. 20 36 C. C. A., 285. 19 Krulevitz vs. Eastern R. Co., 140 Mass., 573, 5 N. E., 500; Thompson vs. Bell, 11 Tex. Am. 22 Wenger vs. Phillips, 195 Pa. St., to one of disorderly conduct, imposed a fine and committed the accused to jail in default of payment thereof, the party instigating the prosecution was held not to be liable for anything done after the charge had been changed." The action of the defendant must have been the proximate and efficient cause of putting the law in operation in the original case.25 The action does not lie for merely preferring an accusation, or for making to a magistrate a full and true statement of facts which the magistrate, mistakenly believing to constitute a good ground of action, issues a warrant upon." An action for malicious prosecution does not lie where the defendant made no effort to procure the indictment, but merely went before the grand jury upon process issued by the State,28 or where the defendant believing that a crime had been committed, called in a police inspector and stated the material facts to him, expecting him to make further investigations.29 31 30 An attorney may be liable for suing out process, or procuring an arrest when he knows that there is no cause of action; he is not liable, however, when he relies, in good faith, upon the information furnished to him by his client.32 the judgment of a magistrate in 28 Breneman vs. West, 21 Tex. Civ. 179 Mass., 268, 60 N. E., 617. 30 Warfield vs. Campbell, 35 Ala., 349. "Burlap vs. Marsh, 13 Ill., 535. 32 Liquid Carbonic Acid Mfg. Co. vs. Convert, 82 111. App., 39. A person cannot be held liable for malicious prosecution merely on account of some unauthorized act of his partner.33 SECTION 65. TERMINATION OF ORIGINAL ACTION IN FAVOR OF ACCUSED. Before an action for malicious prosecution can be brought, there must be a termination of the original action in favor of the accused; the only exception being in the cases where the original action was ex parte in its nature. According to the weight of authority, an action will not lie for a malicious attachment until a termination of the attachment suit in favor of defendant therein.36 A number of cases, however, hold that if a civil suit is maliciously proseccuted, especially the swearing out of a false attachment without probable cause, it is not necessary in order to maintain an action for malicious prosecution, that the suit should have ended, or that the attachment must have been discharged or otherwise terminated in favor of the defendant in the original suit." Termination of suit by the defendant's paying the plaintiff's demands and costs will not necessarily bar an action for malicious attachment, as it may be imperative for the defendant to have his goods released." Any mode of termination in favor of the defendant is sufficient which constitutes a bona fide and 3 Rosenkrans vs. Barker, 115 m., 331; 3 N. E., 93. N. E., 377; Hurgrem vs. Union 85 Steward vs. Gromett, 7 C. B. N. 36 Rea vs. Lewis, Minor (Ala.), 382; Feavle vs. Simpson, 2 Ill., 30; Freymark vs. McKinney Bread Co., 55 Mo. App., 435. Alsop vs. Lidden, 130 Ala., 548, 30 S. R., 401; Rossiter vs. Minnesota vs. Bradner-Smith Co., 37 Minn., 296, 3 N. W., 855. Brand vs. Hinchman, 68 Mich. 590, 36 N. W., 664. final disposition on the merits," of the particular case by the proper judicial officer or body, or which amounts to such a cessation of proceedings as to render them incapable of being renewed." A verdict and judgment are not essential." It may be stated, as a general rule, that a dismissal of a proceeding by the court without a trial of the case on the merits may be such a legal termination as to permit of the maintenance of an action for malicious prosecution based thereon." The rule applies when the proceeding is dismissed by the trial court for want of prosecution.43 And a dismissal and discharge by the trial court for insufficiency of the affidavits upon which the prosecution is based is a sufficient termination to support the action." The same is true of a dismissal by reason of the failure of the prosecution to give security for costs.45 A voluntary dismissal procured by the prosecutor is a sufficient termination to support an action of malicious prosecution." But it seems that a dismissal by a committing magistrate on motion of the prosecuting officer is not a sufficient termination of the proceeding, when the magistrate has no authority to dismiss the proceeding." The rule is well settled that where a proceeding is dismissed or abandoned by procurement of the party 30 West vs. Hayes, 104 Ind., 251, 3 N. F., 932; Davis vs. Stuart, 40 26 Cyc., p. 57. Casebeer vs. "Bell vs. Matthews, 37 Kan., 686; American and English Annotated |