the acts of his servants.246 An officer, in executing a warrant of arrest in a criminal proceeding, does not, however, act as the agent of the person upon whose complaint the proceeding was instituted, and such person is not liable for the acts of the officer unauthorized by the warrant or by such person, and the declarations of the officer are not admissible to bind such persons.247 The ordinary rules as to exemption from liability apply. Therefore a grand juror 248 or a justice of the peace 249 is not liable in such an action.

The plaintiff's consent may bar his right of action. Thus, an action for malicious prosecution of a judgment will not lie where the debtor submitted to the attachment and paid the debt.250

SAME-MALICE AND WANT OF PROBABLE CAUSE.

200. Want of probable cause and malice must concur to sustain an action for malicious prosecution.

Malice.

"Malice," as here used, is not necessarily synonymous with "anger," "wrath," or "vindictiveness." Any such ill feeling may constitute

246 Flora v. Russell (Ind. Sup.) 37 N. E. 593. Thus, an insurance company may be held liable for the acts of its superintendent in arresting plaintiff for larceny. Lyenberger v. Paul, 40 Ill. App. 516; Humphrey v. Prudential Ins. Co., 62 Hun, 618, 16 N. Y. Supp. 480. But the principal is not liable for the independent prosecution by his agent. Springfield Engine & Threshing Co. v. Green, 25 Ill. App. 106. And evidence that the defendant in an action for malicious prosecution employed a person to search for property he had lost, and to take all legal steps necessary for its recovery, and that such person charged plaintiff with larceny of the property, and caused his arrest, does not sustain a verdict for plaintiff. Murrey v. Kelso (Wash.) 38 Pac. 879. Agent of corporation making complaint on advise of company's attorney is not liable. Jordan v. Alabama G. S. R. Co., 81 Ala. 220, 8 South. 191. Company is not liable for its watchman's independently causing arrest. Govaski v. Downey, 100 Mich. 429, 59 N. W. 167.

247 Reisan v. Mott, 42 Minn. 49, 43 N. W. 691; Bartlett v. Hawley, 38 Minn. 308-312, 37 N. W. 580; Zebley v. Storey, 12 Atl. 569.

248 Sidener v. Russell, 34 Ill. App. 446; Thornton v. Marshall, 92 Ga. 548, 17 S. E. 926.

249 Vennum v. Huston, 38 Neb. 293, 56 N. W. 970.

250 Hibbard v. Ryan, 46 Ill. App. 313.

malice.251 But it may be no more than the opposite of bona fides. Any prosecution carried on knowingly, wantonly, or obstinately, or merely for the vexation of the person prosecuted, is malicious.252 Every improper or sinister motive constitutes malice, in this sense.253 Thus, where reputable citizens are wantonly and illegally arrested and incarcerated in a jail on false charges of grave crimes, and thereafter the prosecutor confesses that his only purpose was to procure immunity from prosecution of his brother for the same offense, the prosecution is malicious and without probable cause. The plaintiff is not required to prove "express malice," in the popular sense. 255 The test is, was the defendant actuated by any indirect motive, in preferring the charge or commencing the action against the plaintiff.25 Malice may be express, or it may be implied from

254

251 Evidence of a statement by defendant that if plaintiff did not act peaceably, and behave himself, he would "put him behind the bars," is admissible to show malice. Holden v. Merritt (Iowa) 61 N. W. 390; Stratton v. Lockhart, 1 Ind. App. 380, 27 N. E. 715; Thurston v. Wright, 77 Mich. 96, 43 N. W. 860; Farrar v. Brackett, 86 Ga. 463, 12 S. E. 686; Byford v. Girton (Iowa) 57 N. W. 58S. Zeal in prosecution may be evidence of malice. Mark v. Hastings (Ala.) 13 South. 297. Appearance before a grand jury upon subpœna is prima facie not malicious. Smith v. McDaniel, 5 Ind. App. 581, 32 N. E. 798. Offer to arbitrate or compromise before attaching is evidence of negative malice. Lewis v. Taylor (Tex. Civ. App.) 24 S. W. 92. In an action for the malicious prosecution of a writ of attachment, evidence that defendant was informed by a clerk of plaintiff of his business and financial affairs, and of his efforts to borrow money and dispose of his property, is admissible, as tending to rebut malice and show probable cause. Le Clear v. Perkins (Mich.) 61 N. W. 357. A publication that an "enticing article" had recently been sent out by plaintiff, asking subscriptions to a business corporation organized by him, is not prejudicial to plaintiff in his profession of lawyer, as it has no relation to his character or conduct as a lawyer. Keene v. Tribune Ass'n of New York, 76 Hun, 488, 27 N. Y. Supp. 1045; Burton v. O’Niell, 6 Tex. Civ. App. 613, 25 S. W. 1013. 252 Kerr v. Workman, Add. (Pa.) 270.

253 Tindal, C. J., in Stockley v. Hornidge, 8 Car. & P. 16.

254 Pace v. Aubrey, 43 La. Ann. 1052, 10 South. 381. Et vide Chicago, B. & Q. R. Co. v. Kriski, 30 Neb. 215, 46 N. W. 520; Smith v. Burrus, 106 Mo. 94, 16 S. W. 881.

255 Pullen v. Glidden, 66 Me. 202; Lunsford v. Dietrich, 93 Ala. 565, 9 South. 308; Musgrove v. Newell, 1 Mees. & W. 582; Sutton v. Johnstone, 1 Brown, Parl. Cas. 76; Judson v. Reardon, 16 Minn. 431 (Gil. 387).

256 Hicks v. Faulkner, 8 Q. B. Div. 167; Brown v. Hawkes [1891] 2 Q. B. 718. Et vide Mitchell v. Jenkins, 5 Barn. & Adol. 588; Garrett v. Manneihmer, 24

want of probable cause,257 but it does not follow as a necessary inference.258

Probable Cause.

"Probable cause, in criminal cases, is such conduct on the part of the accused as may induce the court to infer that the prosecution was undertaken for public motives." 259 In Hicks v. Faulkner, 260 reasonable cause is divided into four parts, viz.: (1) An honest belief of the accuser in the guilt of the accused. (2) Such belief must be based on an honest conviction of the circumstances which lead the accuser to that conclusion. (3) Such secondly mentioned belief must be based upon such reasonable grounds as would lead any fairly cautious man in the defendant's situation so to believe. (4) The circumstances so believed and relied on by the accuser must be such as to amount to reasonable ground for belief in the guilt of the accused.201

Probable cause, in civil actions, is such reasons, supported by facts and circumstances, as will warrant a cautious, reasonable, and prudent man in the honest belief that his action, and the means taken in prosecution of it, are legal, just, and proper.262 Thus, for example, where the plaintiff and his companions, having been discharged by the defendant, tore paper from the walls in their room in the defendant's house, and set fire to it, leaving matches and smouldering papers on the floor, these are circumstances constituting reasonable and probable cause to justify prosecution for arson.263

Minn. 193. “Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice is malicious." Stevens v. Midland Counties Ry. Co., 10 Exch. 352; Coleman v. Allen, 79 Ga. 637.

237 Smith v. Burrus, 106 Mo. 94, 16 S. W. 881.

238 Cartwright v. Elliott, 45 Ill. App. 458.

259 If plaintiff was innocent of the crime, but defendant had reasonable ground for suspicion, supported by circumstances strong enough in themselves to warrant a cautious man in the belief that he was guilty the jury should find for the defendants. Hurlbut v. Boaz, 4 Tex. Civ. App. 371, 23 S. W. 446.

260 8 Q. B. Div. 167, 171, 172.

261 The importance of this decision was, however, greatly diminished by Abrath v. North-Eastern Ry. Co., L. R. 11 App. Cas. 247; Steph. Mal. Pros. 69, 70.

282 Benton v. St. Paul, M. & M. Ry. Co., 33 Minn. 189, 22 N. W. 300.

263 Nachtman v. Hammer, 155 Pa. St. 200, 26 Atl. 311. Unexplained re

Where the defendant had the plaintiff arrested for maliciously injur ing water pipes, though he knew that what plaintiff did was done. under order of the park commissioner, this was held sufficient to submit to the jury the question, and to justify the finding of want of probable cause.264 But where the plaintiff was employed to collect the accounts of a corporation which had agreed to pay certain of his debts, and, the company failing to pay such debts, the plaintiff notified it that he had collected certain money for it, which he would turn over as soon as it paid said debts, which amounted to as much as the sum collected, it was held that these facts showed no probable cause for charging the plaintiff with embezzlement.265 The absence of a probable cause may also be inferred from the institution of a criminal suit for the sole purpose of collecting a debt.266

cent possession of stolen property may justify arrest for larceny. Thompson v. Richardson, 96 Ala. 488, 11 South. 728; Ferguson v. Arnow, 142 N. Y. 580, 37 N. E. 626; Mahaffey v. Byers, 151 Pa. St. 92, 25 Atl. 93. Jones v. Jones, 71 Cal. 89, 11 Pac. 817; Brown v. Master (Ala.) 16 South. 443. In embezzlement, see Rankin v. Crane (Mich.) 61 N. W. 1007; Tucker v. Cannon, 32 Neb. 444, 49 N. W. 435. In perjury, see Dawson v. Schloss, 93 Cal. 194, 29 Pac. 31. And, generally, see Molloy v. Long Island Ry. Co., 59 Hun, 424, 13 N. Y. Supp. 382; Mell v. Barner, 135 Pa. 151, 19 Atl. 940; Allen v. Codman, 139 Mass. 136, 29 N. E. 537; Sheahan v. National S. S. Co. (Sup.) 20 N. Y. Supp. 740; Withan v. Thomas, 66 Hun, 632, 21 N. Y. Supp. 176; Wrench v. Samenfeld (Sup.) 19 N. Y. Supp. 948; Willard v. Holmes, Booth & Haydens (Com. Pl. N. Y.) 21 N. Y. Supp. 998, reversed in 142 N. Y. 492, 37 N. E. 480; Sprague v. Gibson, 63 Hun, 626, 17 N. Y. Supp. 685; Central Ry. Co. v. Brewer, 78 Md. 394, 28 Atl. 615; Richard v. Boland, 5 Misc. Rep. 552, 26 N. Y. Supp. 57; Thomas v. Smith, 51 Mo. App. 605.

264 Wass v. Stephens (Sup.) 6 N. Y. Supp. 131; Id., 128 N. Y. 123, 28 N. E. 21. Et vide Hooper v. Vernon, 74 Md. 136, 21 Atl. 556.

265 Brooks v. Bradford (Colo. App.) 36 Pac. 303. Et vide Mahaffey v. Byers, 151 Pa. St. 92, 25 Atl. 93; Hazzard v. Flury, 120 N. Y. 223, 24 N. E. 194; Willard v. Holmes, Booth & Haydens, 142 N. Y. 492, 37 N. E. 480, overruling (Com. Pl. N. Y.) 21 N. Y. Supp. 998; Bandell v. May (Sup.) 15 N. Y. Supp. 273; Horn v. Sims, 92 Ga. 421, 17 S. E. 670. The mere fact that plaintiff had in his possession a ring, which defendant believed to be one stolen from him, is not sufficient to constitute a probable cause for plaintiff's arrest. Jonasen v. Kennedy, 39 Neb. 313, 58 N. W. 122. Further, see Brooks v. Bradford, 4 Colo. App. 410, 36 Pac. 303; Darnell v. Sallee, 7 Ind. App. 581, 34 N. E. 1020; Flora v. Russell (Ind. Sup.) 37 N. E. 593.

266 Kimball v. Bates, 50 Me. 308; Paddock v. Watts, 116 Ind. 146, 18 N. E. 518; Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101. Et vide Toomey v. Delaware, L. & W. R. Co. (Super. N. Y.) 21 N. Y. Supp. 448; Neufeld v. Rode

Inference from Conviction, Acquittal, or Dismissal.

Conviction of the crime charged is, in general, evidence of probable cause. But the authorities are not agreed as to whether such evidence is final. On the one hand, it is contended that, in the absence of fraud procuring conviction, 27 a conviction by a trial court is conclusive against the plaintiff,268 although followed by acquittal on appeal.269 On the other hand, it is insisted that proof of conviction is only such evidence as is sufficient to establish probable cause if not overcome.270 Conviction does not, however, negative malice. 271

minski, 144 Ill. 83, 32 N. E. 913. But the fact that the defendants in an action for malicious prosecution offered to refrain from prosecuting the plaintiff if he would repay the money he had misappropriated is not sufficient to show a want of probable cause for the prosecution. Rankin v. Crane (Mich.)

61 N. W. 1007.

267 Payson v. Casewell, 22 Me. 212. Compare Lawrence v. Cleary, 88 Wis. 473, 60 N. W. 793; Morton v. Young, 55 Me. 24.

268 Crescent City Live-Stock Landing & Slaughterhouse Co. v. Butchers' Union Slaughterhouse & Live-Stock Landing Co., 121 U. S. 140, 7 Sup. Ct. 472; Oppenheimer v. Manhattan Ry. Co., 63 Hun, 633, 18 N. Y. Supp. 411; Parker v. Huntington, 7 Gray, 36; Cloon v. Gerry, 13 Gray, 201; Boogher v. Hough, 99 Mo. 184, 12 S. W. 524; Parker v. Farley, 10 Cush. (Mass.) 279; Adams v. Bicknell, 126 Ind. 211, 25 N. E. 804, and cases therein cited; Whitney v. Peckham, 15 Mass. 243; Phillips v. Village of Kalamazoo, 53 Mich. 33, 18 N. W. 547; Smith v. Macdonald, 3 Esp. 7; 14 Am. & Eng. Enc. Law, 66; 2 Greenl. Ev. § 457.

269 Adams v. Bicknell, 126 Ind. 210, 25 N. E. 804; Reynolds v. Kennedy, 1 Wils. 232. Compare Mellor v. Baddeley, 2 Cromp. & M. 675; Basebe v. Matthews, L. R. 2 C. P. 684. But see Boaler v. Holder, 51 J. P. 277; Marks v. Townsend, 97 N. Y. 590. As to the inference of probable cause from conviction, or even indictment, when a new trial may be subsequently granted, see Whitney v. Peckham, 15 Mass. 243. See Bacon v. Towne, 4 Cush. 217; Cloon v. Gerry, 13 Gray (Mass.) 201; Hil. Torts, 457; Cooley, Torts (2d Ed.) 214; ante, p. 611, note 239. As to inference from dismissal of complaint, Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382. The voluntary discontinuance of a civil suit is not prima facie evidence that it was maliciously instituted. Smith v. Burrus, 106 Mo. 94, 16 S. W. 881. Cf. Ross v. Hixon, 46 Kan. 550, 26 Pac. 955; Bigelow v. Sickles, 80 Wis. 98, 49 N. W. 106; Funk v. Amor, 7 Ohio Cir. Ct. R. 419.

270 Moffatt v. Fisher, 47 Iowa, 473; Arnold v. Moses, 48 Iowa, 694. See, also, Olson v. Neal, 63 Iowa, 214, 18 N. W. 863; Bowman v. Brown, 52 Iowa, 437, 3 N. W. 609; Barber v. Scott (Iowa) 60 N. W. 497; Knight v. International

271 Lewton v. Hower (Fla.) 16 South. 616.