§ 1099. Who Liable-In General. All the persons concerned in originating and carrying on the malicious prosecution are jointly and severally liable.' The defendant need not have been the originator of the prosecution. Two persons may be parties to an arrest and imprisonment and both be liable, -one because he was the active promoter of the prosecution, the other because he voluntarily aided and assisted therein, either by direct personal participation or advice. (He is liable if in point of fact the indictment was preferred at his instance, though he is not avowedly the prosecutor appearing of record; Jand the plaintiff may prove by evidence dehors the record who in fact acted as the prosecutor in the alleged malicious prosecution. The defendant is sufficiently a prosecutor if the prosecution to which the plaintiff was subjected was instituted at his instance and request by the attorney for Z the state. An agent or attorney who maliciously sues out the process is liable. So may one be who gives another a general authority to use his name as he sees fit in prosecuting suits. An action cannot be maintained against

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an attorney at law for bringing a civil action, unless he commenced it without the authority of the party in whose name it was sued, or unless there was a conspiracy between them to bring a groundless suit, the attorney knowing it to be groundless, and commenced without any intention or expectation of maintaining it.1 Where an attorney is sued for a malicious prosecution by his client, it must appear that he knew it was both without cause and malicious. If an attorney, from malicious. motives, procure from justices of the peace an unauthorized order of attachment operating injuriously upon the defendant's rights, he is liable, as well as his client. And an attorney who advises, begins, and conducts a criminal prosecution upon an understanding with his client that the charge against the accused is untrue, is liable. It seems to be necessary, however, that one to be liable should advise and co-operate in the prosecution in some way. One person cannot be made liable in damages because he knows that another is about to commit an unlawful act, and does not protest. Here there is consent, perhaps, but not co-operation. Thus A, B, and C are partners, and A and B, believing that D has stolen money from the firm, commence proceedings against him. C does nothing but passively assent; he neither advises nor protests against the act of A and B. C is not liable to an action of malicious prosecution by D.5 Where a voluntary association for the prosecution of thieves caused plaintiff's prosecution, only the members participating therein were held liable. Advising persons not to become sureties for one who has been arrested does not tend to show that those who give such advice have conspired with the person who caused the arrest, and are therefore liable with him for

malicious prosecution. Nor does their enmity toward the person arrested, nor their wish to drive him out of town.'

And there is a material distinction between instituting a prosecution and merely attending a hearing upon a prosecution already commenced; and therefore where the defendants' agent, without their knowledge, had taken out a summons charging the plaintiff with stealing some of their cattle, and the only part the defendants took in the matter was to attend the hearing as prosecutors before the magistrate, it was held that no action would lie. "How can it be said," said Bramwell, J., "that they acted without reasonable cause in so attending? If they had said, before they heard a word of the evidence, 'We disavow the proceeding,' that surely would have been acting unreasonably; for it would have been acting precipitately, before they knew anything about the matter."2

One who has consented to the use of his name as prochein ami in a suit by one being, or claiming to be, a minor is not liable if the suit was erroneously brought against his expectation, and without his consent, express or implied. Grand jurors are not liable to an action for information given by them to their fellow-jurors on which a presentment is founded. An infant is not liable. for the malicious prosecution of a suit during his infancy where it was brought in his name by his prochein ami, and without his knowledge or authority, even though he expressly assented to the suit after he had knowledge of it. A prosecution which in the outset is not malicious, as, for instance, if undertaken at the dictation of a judge or magistrate, or spontaneously undertaken from having been commenced under a bona fide belief in the guilt of the accused, may nevertheless become malicious in any

57.

1 Labar v. Batt, 56 Mich. 589.

2 Weston v. Beeman, 27 L. J. Ex.

Soule v. Winslow, 66 Me. 447.

Black v. Sugg, Hardin, 556.

5 Burnham v. Seaverns, 101 Mass. 360; 100 Am. Dec. 123.

See post, § 1100, Liability for Judicial Error.

of the stages through which it has to pass if the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres in the prosecution with the intention of maliciously procuring his conviction.1 (“Take, for instance," said Cockburn, C. J., in an interesting case on this subject," "the case of a prosecutor who, after the commitment of a prisoner, and before going before the grand jury, chanced to discover the clearest proof of the prisoner's innocence, and yet went on with the indictment and prosecution, suppressing the newly ascertained facts, and supporting the case against the prisoner by evidence either absolutely false or rendered so by the suppression of facts which would have shown the innocence of the accused. Can it be said that to prefer an indictment under such circumstances, to be followed up by such a course of proceeding as I have referred to, would not be a malicious prosecution for which the man whose life or liberty had been put in peril by it should have a remedy by civil action?" Bramwell, J., in the same case, offered a similar illustration: "Suppose," said he, "a man's servants, on good ground, charge a person with stealing; suppose the charge is bona fide made, and the master bound over to prosecute; suppose another servant afterwards discovers the property under circumstances showing it was never stolen, and gives it to the master, who, for a grudge, nevertheless prefers an indictment and suppresses the evidence of innocence, would no action lie? I cannot doubt it would; and yet the prosecutor would have given no evidence, and all his witnesses would have been truthful." But an allegation that a suit was maliciously commenced will not be supported by evidence which shows that the defendant brought his action. believing that he had good cause therefor, but detained property attached, after learning that his suit was

Fitzjohn v. Mackinder, 9 Com. B., N. S., 508; Cole v. Curtis, 16 Minn. 182.

2 Fitzjohn v. Mackinder, 9 Com. B., N. S., 508.

groundless. The action will likewise lie for advising and procuring a third person to institute a malicious. prosecution without probable cause, and against a judge for maliciously conspiring with others to institute in his court a malicious prosecution against the plaintiff.3 Proof that one maliciously made the affidavit in attachment, without showing further intervention on his part, will render him liable for the resulting injury.1

ILLUSTRATIONS. A party went before a justice of the peace on Sunday, and made an affidavit upon which the justice issued an attachment, and appointed another party to execute it, who took the writ, and under it seized and carried away the goods of the defendant in the attachment. The defendant appeared before the justice, and procured a change of venue to another justice, but did not defend the attachment suit any further, but brought an action of trespass against the plaintiff in the attachment suit, the justice who issued it, and the appointed constable who served it. Held, that they were all liable, and that the right to bring the action of trespass was not waived by appearing and taking the change of venue in the attachment suit: Thomas v. Hinsdale, 78 Ill. 259.

1 Stone v. Swift, 4 Pick. 389; 16 Am. Dec. 349.

"It is said that in every case for malicious prosecution the defendant is charged with active agency, and that an action for merely advising another to institute a prosecution is not sustainable. For my part, I can conceive nothing more direct than the charge here. It is substantially a charge that the defendant maliciously, and without probable cause, consulted with, advised, and procured one Z., falsely and maliciously, and without probable cause, to prosecute the plaintiff for felony. This procurement is surely actionable. The language of the declaration corresponds with the form of declaring in an action on the case in the nature of an action for a conspiracy; and it was admitted in the argument that the facts set forth would be sufficient if proved, in an action against two or more to sustain such an action. If so, a charge of such advice and procurement by one can

not less entitle the plaintiff to this action": Tucker P., in Mowry v. Miller, 3 Leigh, 561; 24 Am. Dec. 680; Perdu v. Connerly, 1 Rice, 49.

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Stewart v. Cooley, 23 Minn. 347; 23 Am. Rep. 690.

Walser v. Thies, 56 Mo. 89, the court saying: "We are not willing to concede that it is necessary to the maintenance of the action that the de

fendant should in person deliver the writ to the officer, or be present and point out the property and tell him what to do. It is the duty of the court to deliver the process to its executive officer, and it is the duty of that officer to levy the attachments on whatever property may be necessary to satisfy the same. The plaintiff in the suit sets the whole proceeding in motion by making out the affidavit, and if he does the same maliciously, vexatiously, and without probable cause, and injury results from his unlawful and wrongful act, he is liable, and must respond in damages."