lawfully settle, have effected a compromise, and thereby terminated it. Or that the defendant was discharged because the offense was misnamed in the papers, or because of formal defects.' But if the proceeding is ex parte to hold to bail, and the accused party has no opportunity to disprove the case made against him, he may maintain the suit, notwithstanding he was required to give bail;' and so he may, if on a preliminary examination before a magistrate on charge of crime he is discharged. Whether the entry of a nolle prosequi by the prosecuting officer is a sufficient discharge has been made a question. In some cases it has been held that it was; but other cases hold the contrary. The reason assigned in these last cases is, that the finding of the grand jury is some evidence of probable cause, and another indictment may be found on the same complaint. But the reasonable rule seems to be, that the technical prerequisite is only that the 5 C.) L. 257. A proceeding is terminated where verdict of not guilty is rendered; where grand jury ignore a bill; where nol. pros. is entered; where the accused has been discharged from jail or imprisonment. Lowe v. Wartman, 47 N. J. L. 413. If one brings an action while an appeal from a decision in his favor is pending and it is reversed his action falls. Marks o. Townsend, 97 N. Y. 590, McCormick v. Sisson, 7 Cow.715; Hamilburgh. Shephard, 119 Mass. 30; Mayer v. Walter, 64 Penn. St. 283. So if indictment quashed for insufficiency in law. McKensie v. Mo. Pac. Ry. Co. 24 Mo. App. 392. But if one compounds under protest to procure his discharge, this does not afterwards estop him from showing the groundlessness and malice of the proceeding. Morton v. Young, 55 Me. 24. 2 Sears v. Hathaway, 12 Cal. 277. 3 Stewart v. Gromett, 7 C. B. (N. 8.) 191. Where a peace warrant is maliciously taken out, no termination need be shown. Hyde v. Greuch, 62 Md. 577. Cardival v. Smith, 109 Mass. 158; S. C. 12 Am. Rep. 582; Sayles v. Briggs, 4 Met. 421; Burkett v. Lanata, 15 La. Ann. 337; Moyle v. Drake, 141 Mass. 238; Swensgaard v. Davis, 33 Minn. 368. So as to bastardy proceedings. Coffey v. Myers, 84 Ind. 105. So if discharged on habeas corpus. Zebley v. Storey, 12 Atl. Rep. 569 (Penn.). 5 Brown v. Randall, 36 Conn. 56; S. C. 4 Am. Rep. 34; Hays v. Blizzard, 30 Ind. 457; Chapman v. Woods, 6 Blackf. 504; Stanton v. Hart, 27 Mich. 539; Woodworth v. Mills, 61 Wis. 44; Kennedy v. Holladay, 25 Mo. App. 503; Bell v. Matthews, 16 Pac. Rep. 97 (Kan.); Hatch v. Cohen, 84 N. C. 602; Clegg v. Waterbury, 88 Ind. 21. • Bacon v. Towne, 4 Cush. 217; Parker v. Farley, 10 Cush. 279; Brown ». Lakeman, 12 Cush. 482; Cardival . Smith, 109 Mass. 159; S. C. 12 Am. Rep. 582. Nol. pros. not enough without order of discharge by Court. Langford v. Boston, etc., Co., 144 Mass. 431. But see Graves t. Dawson, 133 Mass. 419, where discharge, after binding over and before indictment, on motion of district attorney, followed by nol. pros. held sufficient particular prosecution be disposed of in such a manner that this cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one.' *Joint Liability. All concerned in originating and [*187] carrying on a malicious prosecution are jointly and sever ally responsible; it is not necessary that all should have been complainants. But if one merely furnishes the prosecuting officer with the facts, and the latter, on his own judgment, commences a prosecution, making use of the former as a witness, this is not a prosecution by the witness, and unless he interferes inproperly afterwards, he cannot be held responsible as having instituted it. Malicious Civil Suits. In some cases an action may be maintained for the malicious institution of a civil suit, but the authorities are not entirely agreed what cases are embraced within the rule. The case of the malicious institution of proceedings in bankruptcy is undoubtedly one. If these are instituted maliciously, and without probable cause, and terminate without an adjudication of bankruptcy, an action will lie for the damages sustained. "The general grounds of this action are, that the commission was falsely and maliciously sued out, that the plain Clark. Cleveland, 6 Hill, 344, 347; Casebeer v. Rice, 18 Neb. 203; Apgar . Woolston, 43 N. J. L. 57. See Cardival v. Smith, 109 Mass. 159; Driggs . Burton, 44 Vt. 124. It has been held that if one institutes a criminal proceeding, and is the prosecuting witness therein, but fails to appear after several adjournments, and the accused, for that reason, is suffered to go at liberty, this is sufficient termination of the prosecution, even though there be no record of the discharge. Leever v. Hamill, 57 Ind. 423. The dismissal of a complaint with intent, afterwards executed, of laying another in a higher court, is not a sufficient termination. Schippel. Norton, 16 Pac. Rep. 804 (Kan.). Stansbury . Fogle, 37 Md. 369; Clements. Ohrly, 2 C. & K. 686; Johnson v. Miller, 69 Ia. 562. An attorney's knowledge of his client's malice will not alone make him liable; otherwise if in addition he knows there is no probable cause. But he may act on such information as his client gives him. Peck v. Chouteau, 91 Mo. 138; Staley v. Turner, 21 Mo. App. 244. If an agent of a corporation at instigation and upon advice of company's attorney makes a complaint, he is not personally liable as prosecutor. Jordan v. Ala., etc., R. R. Co., 81 Ala. 220. The treatment of the person by county officers is not an element of damage against the prosecutor. Zebley v. Storey, 12 Atl. Rep. 569 (Penn.). 3 Wasserman v. Louisville, etc., R R. Co., 28 Fed. Rep. 802. See Murphy v. Walters, 34 Mich. 180, a case of false imprisonment. tiff has been greatly damaged thereby, scandalized upon record, and put to great charges in obtaining a supersedeas to the commission here is falsehood and malice in the defendant, and great wrong done to the plaintiff thereby. Now, wherever there is an injury done to a man's property by a false and malicious prosecution, it is most reasonable he should have an action to repair himself."1 The case of a civil suit begun maliciously, and without prob able cause, by the arrest of the party, is another.' So is the case of a suit commenced by an attachment of property; the reasons which support the action in that case being much the same with those which have been found sufficient where commission in bankruptcy is sued out. And in Ohio it has been held [*188] that the *suit will lie, even though there may have been a valid cause of action, if in fact there was no probable cause for the attachment, and it was taken out maliciously; also, 1 See in Chapman . Pickersgill, 2 Wils. 145, and Farley v. Danks, 4 El. & Bl. 493; Whitworth v. Hall, 2 B. & Ad. 695. So for causing a petition to be filed to wind up a trading company. Quartz-Hill Co. v. Eyre, L. R. 11. Q. B. D., 674, 2 Collins v. Hayte, 50 Ill. 337, 353; Burhans v. Sanford, 19 Wend. 417; Watkins v. Baird, 6 Mass. 506; Austin v. Debnam, 3 B. & C. 139; Sinclairv. Eldred, 4 Taunt. 7. The voluntary discontinuance of such a suit is prima facie evidence of want of probable cause, but to suffer a judgment of non pros., or as in case of nonsuit, is not. Burhans v. Sanford, 19 Wend. 417. Preston . Cooper, 1 Dill. 589; Williams. Hunter, 3 Hawks, 545; Wood v. Weir, 5 B. Mon. 544; McCullough v. Grishobber, 4 W. & S. 201; Walser v. Thies, 56 Mo. 89; Holliday v. Sterling, 62 Mo. 321; Fullenwider v. McWilliams, 7 Bush, 389; Speng ler v. 82 Ill. 545. If one believes upon reasonable grounds that the debt existed, there is probable cause. Kaufman v. Wicks, 62 Tex. 234. That another creditor has sued out an attachment is not. Carothers v. M'Ilhenny Co., 63 Tex. 138. Probable cause is to be determined by the same rules as in case of crimes. Burton v. St. Paul &c. Co., 33 Minn. 189. Not a bar to such action that the suit was settled. Brand v. Hinchman, 36 N. W. Rep. 664 (Mich.) which see for what is sufficient to make an attachment. Such action will not lie while the original action is pending on appeal. Reynolds v. DeGeer, 13 Ill. App. 113. If the defendant was not served with process in the attachment suit, it is not necessary for him to show that it terminated in his favor. Bump. Betts, 19 Wend. 421. The fact that the plaintiff, in bringing suit, was compelled to give an indem nity bond, will not protect him against an action for the malicious suit. Lawrence v. Hagerman, 56 Ill. 68; S. C. 8 Am. Rep. 674. See Burnap v. Wight, 14 Ill. 301. that it is not essential in such a case that the suit in attachment should be first terminated.' If, however, the validity of the attachment was allowed to be tested, and its justification inquired into, in some distinct proceeding while the suit itself was pending, we should say that a suit for maliciously suing out the writ could not be brought until the writ itself was dissolved or quashed. Still another case in which an action will lie for the malicious institution of unfounded proceedings not criminal in their nature, is where they are taken to have the party declared insane, and put under guardianship. Such proceedings are almost necessarily damaging beyond what a civil suit can well be; and, if unfounded and malicious, deserve more than a mere punishment in costs. In some cases it has been held that an action may be maintained for the malicious institution, without probable cause, of any civil suit which has terminated in favor of the defendant; but the English authorities do not justify this statement, and Fortman v. Rottier, 8 Ohio, (N. S.) 548, citing and relying upon Tomlinson v. Warner, 9 Ohio, 104. In a late case, where use of property had been enjoined, it is said an action lies whenever, by virtue of any order or writ in a cause, the defendant in that cause "has been deprived of his personal liberty, or the possession, use, or enjoyment of property of value." Newark Coal Co. v. Upson, 40 Ohio St. 17. Lockenour. Sides, 57 Ind. 360. In Colorado it has been held that an action will lie for falsely "suing out and prosecuting before the Commissioner of the General Land Office of the United States, an officer having jurisdiction, &c., a caveat impeaching the plaintiff's entry [of public lands] on the ground and allegation of fraud." Hoyt v. Macon, 2 Col. 113. So for suing out an injunction. Butchers &c. Co. v. Crescent City &c. Co., 37 La. Ann. 874; Newark Coal Co. v. Upson, 40 Ohio St. 17, but not for procuring a writ of estrepement, a preventive remedy. Eberly v. Rupp, 90 Penn. St. 259. Nor for bringing ejectment, Muldoon. Rickey, 103 Penn. St. 110, McNamee v. Minke, 49 Md. 122. See Allen v. Codman, 139 Mass. 636. It will for bringing suc cessive groundless actions at a distance from defendant's home. Payne v. Donegan, 9 Ill. App. 566. See Magmer v. Renk, 65 Wis. 364. If one has a set off allowed in a suit he cannot sue for malice in its prosecution. Dolan v. Thompson, 129 Mass. 205. So if two cross suits are settled. Sartwell v. Parker, 141 Mass. 405. See Closson v. Staples, 42 Vt. 209; S. C. 1 Am. Rep. 316, where the subject was fully and carefully examined. Also, Whipple v. Fuller, 11 Conn. 581; Marbourg v. Smith, 11 Kans. 554; Burnap v. Albert, Taney, 244; Cox . Taylor's Admr. 10 B. Mon. 17; Woods v. Finnell, 13 Bush, 628; Eastin v. Bank, 66 Cal. 123. there is much good reason in what has been said in a [*189] *Pennsylvania case, that "if the person be not arrested, or his property seized, it is unimportant how futile and unfounded the action might be; as the plaintiff, in consideration of law, is punished by the payment of costs." If every suit may be retried on an allegation of malice, the evils would be intolerable, and the malice in each subsequent suit would be likely to be greater than in the first. Malicious Abuse of Process. If process, either civil or criminal, is willfully made use of for a purpose not justified by the law, this is abuse for which an action will lie. The following are illustrations: Entering up a judgment and suing out execution after the demand is satisfied; suing out an attachment for an amount greatly in excess of the debt; causing an arrest for more than is due; levying an execution for an excessive amount; causing an arrest when the party cannot pro 1 SHARSWOOD, J., in Mayer v. Walter, 64 Penn. St. 283, citing Ray v. Law, 1 Pet. C. C. 207; Kramer v. Stock, 10 Watts, 115; Cross v. Elliott, 69 Me. 387; Smith v. Hintrager, 67 Ia. 109. See Gonzales v. Cobliner, 68 Cal. 151; Brown v. Cape Girardeau, 90 Mo. 377. This subject has been treated at length in an article, discussing many cases by Mr. Lawson. 30 Am. Law Reg. 281, 353. 2 Barnett v. Reed, 51 Penn. St 190. Savage v. Brewer, 16 Pick. 453; Moody v. Deutsch, 85 Mo. 237. 4 Jenings v. Florence, 2 C. B. (N. 8.) 467; Austin v. Debnam, 3 B. & C. 139. 5 Sommer v. Wilt, 4 S. & R. 19; Churchill v. Siggers, 3 El. & Bl. 929. In this case, Lord CAMPBELL, Ch. J., says, p. 937: "To put into force the process of the law maliciously, and without any reasonable or 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 on the case. Process of execution on a judgment seeking to obtain satisfaction for the sum recovered is prima facie lawful; and the creditor cannot be rendered liable to an action, the debtor merely alleg ing and proving that the judgment had been partly satisfied, and that execution was sued out for a larger sum than remained due upon the judgment. Without malice and the want of probable cause, the only remedy for the judgment-debtor is to apply to the court or judge that he may be discharged, and that satisfaction may be entered up on the payment of the balance justly due. But it would not be creditable to our jurisprudence if the debtor had no remedy by an action where his person is, or his goods have been taken in execution for a larger sum than remained due on the judgment, this having been done by the creditor maliciously and without reasonable or probable cause: i. e., the creditor well knowing that the sum for which the execution is sued out is excessive, and his motive being to oppress and injure |
