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TITLE XII.

MALICIOUS PROSECUTION.

TITLE XII.

MALICIOUS PROSECUTION.

CHAPTER LIII.

WHEN ACTION LIES.

§ 1080. Malicious prosecution - Criminal prosecution.

§ 1081. Civil suit and arrest or attachment.

§ 1082. Civil action without arrest or attachment.

$1080.

Malicious Prosecution-Criminal Prosecution. -An action for malicious prosecution lies where one with malice and without reasonable and probable cause puts the criminal law in force against another.1 "To put into force the process of the law maliciously, and without any reasonable and probable cause, is wrongful; and if thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action."2 "There is no similitude or analogy, said Lord Mansfield in Johnstone v. Sutton, "between an action of trespass or false imprisonment and this kind of action. An action of trespass is for the defendant's having done that which upon the stating of it is manifestly illegal. This kind of action is for a prosecution which upon the stating of it is manifestly legal. The essential ground of this action is, that a legal prosecution was carried on without a probable cause. We say this is

'Churchill v. Siggers, 3 El. & B. 937; Dennis v. Ryan, 5 Lans. 350; 65 N. Y. 385; 22 Am. Rep. 635; Shaul v. Brown, 28 Iowa, 37; 4 Am. Rep. 151; Morris v. Scott, 21 Wend. 281; 34

3

Am. Dec. 236; Mowry v. Miller, 3
Leigh, 561; 24 Am. Dec. 680.

Campbell, C. J., in Churchill v. Sig-
gers, 3 El. & B. 936.
31 Term Rep. 554.

emphatically the essential ground, because every other allegation may be implied from this, but this must be substantially and expressly proved, and cannot be implied." The action will lie for maliciously and without probable cause instituting and carrying forward proceedings under a search-warrant. The right of action for

malicious prosecution is several, and not joint. action, it is said, is not favored by the courts.3

The

"It

§ 1081. Civil Suit and Arrest or Attachment. - A malicious prosecution without probable cause will also lie where, though the proceedings are civil, and not criminal, they involve the arrest of the party complaining, or the attachment, sequestration, or other interference with his property, or injure him in some special manner. may be," as said in a late case in New York, "that the rule stated as governing these actions is harsh. It may be that it would have been better to have held a man to a strict accountability who, upon a claim made, deprived his debtor of his liberty, if he failed to prove his demand good; but

1 Whitson v. May, 71 Ind. 269. 2 McLeod v. McLeod, 73 Ala. 42. Savile v. Roberts, 1 Ld. Raym. 374; Reynolds v. Kennedy, 1 Wils. 233.

1 Hilliard on Torts, 443; Mayer v. Walter, 64 Pa. St. 283; McNamee v. Minke, 49 Md. 122; Sledge v. McLaven, 29 Ga. 64; O'Grady v. Julian, 34 Ala. 88; Bump v. Betts, 19 Wend. 421; Whipple v. Fuller, 11 Conn. 582; 29 Am. Dec. 330; Watkins v. Baird, 6 Mass. 506; 4 Am. Dec. 170; Lawrence V. Hagerman, 56 Ill. 68; 8 Am. Rep. 674; Collins v. Hayte, 50 Ill. 353; Stewart v. Cole, 46 Ala. 646; McKellar v. Couch, 34 Ala. 336; Donnell v. Jones, 13 Ala. 490; 17 Ala. 689; Tancred v. Leyland, 16 Q. B. 669; Herman v. Brookerhoff, 8 Watts, 240; Henderson v. Jackson, 9 Abb. Pr., N. S., 393; 3 Sutherland on Damages, 699; Cox v. Taylor, 10 B. Mon. 17; Robinson v. Kellum, 6 Cal. 399; Preston v. Cooper, 1 Dill. 489; De Medina v. Grove, 10 Q. B. 168; Savage v. Brewer, 16

Pick. 453; 28 Am. Dec. 255; Burkhart v. Jennings, 2 W. Va. 242; Fortman v. Rottier, 8 Ohio St. 548; 72 Am. Dec. 606; Tomlinson v. Warner, 9 Ohio, 103; Nelson v. Danielson, 82 Ill. 545; Spaids v. Barrett, 57 Ill. 289; 11 Am. Rep. 10; Farley v. Danks, 4 El. & B. 493; Sinclair v. Eldred, 4 Taunt. 7; Austin v. Debnam, 3 Barn. & C. 139; Churchill v. Siggers, 3 El. & B. 937; Besson v. Southard, 10 N. Y. 236; Barhaus v. Sanford, 19 Wend. 417; Pierce v. Thompson, 6 Pick. 193; Weaver v. Page, 6 Cal. 681; Lindsay v. Larned, 17 Mass. 190; Hayden v. Shed, 11 Mass. 500; Welser v. Thies, 56 Mo. 89; Holliday v. Sterling, 62 Mo. 321; Williams v. Hunter, 3 Hawks, 545; 14 Am. Dec. 597, and note; McCullough v. Grishobber, 4 Watts & S. 201; Spengler v. Davy, 15 Gratt. 381; Wood v. Weir, 5 B. Mon. 544; Fullenwider v. McWilliams, 9 Bush, 389; Closson v. Staples, 42 Vt. 209; Am. Rep. 316; Hoyt v. Macon, 2 Col. 113.

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