1. SOMEWHAT analogous to the action for libel and slander, is that for malicious prosecution; which, though involving an injury to the person, as connected with false imprisonment, and also to property, on account of the necessary cost and expense of defending against unfounded demands or accusations; is primarily, more especially in case of a criminal prosecution, a wrong to character or reputation. (a) (a) It is remarked by late learned writers upon this subject: "It is, certainly, only in the case of a crime, or, at least, an indictable offence involving moral turpitude, the verbal imputation of which would be slander, that the mere preferring of an indictment, or issuing of a warrant, or other instituting of a criminal proceeding, without arrest or special damage, is actionable. Indeed it was said by Patteson, J., in Gregory v. Derby, 8 Carr. & P. 749, in the case of a charge of stealing, on which a warrant was issued, that if the party was never apprehended, no action would lie; and by the Court, in O'Driscoll v. McBurney, 2 Nott & M'Cord, 54, 55, that there can be no prosecution without an arrest. But probably these remarks should be confined to cases where the charge is not slanderous, or, at least, where arrest is specially made the gravamen in the declaration; for, if a 2. The general principle is laid down, that an action lies for maliciously causing one to be indicted, whereby he is slanderous charge be made before a magistrate and a warrant demanded, and a warrant thereupon issue, it is believed, that this form of action is the appropriate remedy; but if no warrant issue, the remedy is slander, in the form of "imposing the crime of felony." Munns v. Dupont, 1 Am. Lead. Cas. 216, 217, n. The same learned annotators cite with approval the following observations, respecting the nature of the crime for the charge of which this action may be maintained. "To sustain the action of malicious prosecution, technically so called, the indictment must charge a crime; and then the action is sustainable per se, on showing a want of probable cause. There is another class of cases, which are popularly called actions for malicious prosecution, but they are misnamed; they are actions on the case, in which both a scienter and a per quod must be laid and proved. I allude now, first, to actions for false and malicious prosecutions for a mere misdemeanor, involving no moral turpitude; secondly, to an abuse of judicial process, by procuring a man to be indicted, as for a crime, when it is a mere trespass; third, malicious search-warrants. In all these cases, it will be perceived that they cannot be governed by the ordinary rules applicable to actions for malicious prosecutions. It is said by most of our law-writers, that, in such cases, you must not only prove want of probable cause, but also express malice and actual injury or loss, as deprivation of liberty, and money paid in defence. The express malice necessary to sustain such actions, ought to be laid and proved, and this is what I understand by the scienter. As in an action for a false and malicious prosecution for a misdemeanor, it must be laid and proved, that the party knowing the defendant's innocence, still of his mere malice preferred the charge. So, in the second class of cases, it will not do to say, that you indicted me, as for a crime, for a trespass, without any probable cause, for in such a case no injury is done to the plaintiff, and no fault is established against the defendant, for which he can be punished. But when to this statement we superadd the facts, that the defendant, knowing that the trespass complained of was no crime, yet procured the plaintiff to be indicted as for a crime, malice is clearly made out; and, if the plaintiff has sustained any injury, the action will lie." Per O'Neall, J., Frierson v. Hewitt, 2 Hill, 499. Examples of the action for malicious prosecution are the following: For procuring the plaintiff to be indicted, for conspiring to lay a bastard child to the defendant; such conspiracy being punishable at common law. Pedro v. Barrett, 1 Ld. Raym. 81. So one, who falsely and maliciously charges another with perjury before damnified either in person, reputation, or property.1 (a) Or for advising and procuring a third person to institute a malicious prosecution.2 1 Savile v. Roberts, 1 Salk. 14; 1 Ld. Ray. 374. Mowry v. Miller, 3 Leigh, 561; Perdu v. Connerly, 1 Rice, 49; 1 Ld. the grand jury, on which he is arrested and held to bail, is liable to an action for malicious prosecution. Setton v. Farr, 1 Rice, 303. So an action in the nature of conspiracy lies,.after acquittal, for causing a person to be falsely and maliciously indicted for trespass. Norris v. Palmer, 2 Mod. 51. And an acquittal on an indictment for a common trespass shows the prosecution to have been malicious, because the prosecutor might have brought a civil action, in which the defendant, on being found not guilty, would have been allowed costs; and therefore an action on the case will lie, on account of the expenses to which he was put by the indictment. 2 Mod. 306. And, in general, a charge, falsely and maliciously preferred, that will authorize a justice to issue his warrant, and have the accused brought before him for examination, touching a matter that will subject him to a criminal prosecution, is sufficient to sustain an action on the case for a malicious prosecution, without regard to the grade of the offence, or the technical form in which the charge is preferred. Long v. Rogers, 17 Ala. 540. So an action on the case lies, for maliciously obtaining or cxecuting a warrant to search a house, for smuggled goods, where none such are found. Cooper v. Boot, 1 T. R. 535. But it has been held, that an action on the case will not lie, for a malicious prosecution before a naval court-martial, for an offence cognizable therein. Johnstone v. Sutton, 1 T. R. 493; 1 Brown, P. C. 76. Nor for delaying to bring an officer under arrest to a naval court-martial; it being a military offence, and the defendant not having been tried for it. Ibid. 548. An averment, that the defendant maliciously and without probable cause preferred an indictment, setting it forth, is proved, if only a part of the charges were malicious and without probable cause. Reed v. Taylor, 4 Taunt. 616. A declaration, for maliciously indicting and procuring the plaintiff to be indicted, is sustained, although the defendant preferred the indictment unwillingly, and solely because he was bound over to do so, if he was himself the cause of his being so bound over, by originally making a malicious Dubois v. Keats, 3 Per. & Dav. 306. charge before the magistrate. (a) "Whenever there is an injury done to a man's property by a false 3. But a distinction is to be noticed between this action and that already considered, (ch. 6,) for false imprisonment. Thus a count which avers, "that the defendant falsely, maliciously, and without probable cause, charged the said plaintiff with the crime of felony, and, upon said charge, falsely, maliciously, and without probable cause, caused the said plaintiff to be arrested by his body, and to be imprisoned and kept and detained in prison for a long time, namely, for the space of one day then next following, at the expiration of which said time he, the said defendant, caused the said plaintiff to be released and set at liberty, and wholly abandoned his said prosecution;" is not a good count in and malicious prosecution, it is most reasonable that he should have an action to repair himself." Per Pratt, C. J., Chapman v. Pickersgill, 2 Wils. 145. So, if it puts him to expense, though it neither scandalizes him nor affects his personal security. 1 Ld. Ray. 374. Or causes any special damage. Ibid. Hence, in an action for malicious prosecution, it was held not to be error, to refuse to strike from the declaration an averment, that the prosecution injuriously affected the interests and credit of the plaintiff; such injuries forming a legitimate ground for recovering damages. Goldsmith v. Picard, 27 Ala. 142. And the plaintiff may recover, not only for the unlawful arrest and imprisonment, and the expenses of his defence, but also for the injury to his fame and reputation. Sheldon v. Carpenter, 4 Comst. 578. Such recovery is therefore a bar to a subsequent action of slander, for the accusation uttered for the purpose of procuring the arrest at the time when it was made. Ibid. The elements of the action are said to be, "Damage to a man's fame, as if the matter whereof he is accused be scandalous; 2, where a man is put in danger to lose his life, or limb, or liberty; 3, damage to a man's property, as where he is forced to expend money in necessary charges to acquit himself of the crime of which he is accused." Per Holt, C. J., Savile v. Roberts, 1 Ld. Ray. 374. But, in an action for maliciously suing out an attachment against a partnership, the jury, in estimating the damages, can consider only the injury to the partnership trade or business, and not to the private feelings of the partners, nor can special damage, by loss of reputation, credit, business, or customers, be proved, unless specifically alleged. Donnell v. Jones, 13 Ala. 490. case for malicious prosecution, but is a good count in trespass for false imprisonment. And, with regard to the precise nature of this action, as distinguished from others somewhat analogous, it is said: "There is no similitude or analogy 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." 2 (a) So, also, it is said, "There is a wide distinction between an action against the prosecutor for a malicious prosecution, and an action against a magistrate for a malicious conviction. In the former case, proof that there was in reality no ground for imputing the crime to the plaintiff, shows that the prosecution was instituted without probable cause, and malice may be inferred from thence. What passed at the trial is, in this case, immaterial. The prosecutor may have sworn to the truth of the charge, but that will not show that he had a probable cause for it. In an action against the magistrate for a malicious conviction, the question is, not whether there was any actual ground for imputing the crime to the plaintiff, but whether, upon the hearing, there appeared to be none. The plaintiff must prove a want of probable cause for the conviction, which he can only do, by proving .what passed at the hearing before the magistrate, when the conviction took place. The magistrate has nothing to do with the guilt or innocence of the offender, except as they appear from the evidence laid before him. The conviction must be founded upon that evidence alone, and it is impossible to show, that there was no probable cause for the conviction, without showing what that evidence was." 3 (b) 1 Ragsdale v. Bowles, 16 Ala. 62. Per Gibbs, C. J., Burley v. Bethune, 5 Taun. 583. (a) An arrest is not necessary to be proved, to support an action for a malicious prosecution. Stapp v. Partlow, Dudley, (Geo.) 176. (b) See Judge, Justice, Officer. |