malice may be, and most commonly is, implied.

The knowledge of

the defendant is also implied. From the most express malice the want of probable cause cannot be implied."

Malice is, however, an essential element of malicious prosecution, and must be alleged in the declaration or complaint.301 The want of probable cause, without malice, is not sufficient.302 The inference of malice from want of probable cause is one of fact, to be determined in view of all the circumstances,303 and may be drawn although there is no direct testimony as to prior trouble, ill will, or grudge, 304 The jury may, but are not bound to, infer malice from want of probable cause.305 Indeed, such inference of malice from want of probable cause may be so removed by facts that there is nothing for a jury to pass on.306 Malice may, of course, be proved by showing ill feeling on the defendant's part.307 On the

301 Saxon v. Castle, 6 Adol. & El. 652; Page v. Wiple, 3 East, 314; Vanduzor v. Linderman, 10 Johns. 106.

302 Emerson v. Cochran, 111 Pa. St. 619, 4 Atl. 498. Malice is a distinct issue. Smith v. Maben, 42 Minn. 516, 44 N. W. 792. The offer to compromise a civil suit is, however, evidence of neither want of probable cause nor malice. Id. Et vide Cooper v. Hart, 147 Pa. St. 594, 23 Atl. 833.

303 Fugate v. Millar, 109 Mo. 281, 19 S. W. 71.

304 Blunk v. Atchison, T. & S. F. Ry. Co., 38 Fed. 311.

305 Jordan v. Alabama G. S. R. Co., 81 Ala. 220, 8 South. 191. Even where the plaintiff was twice arrested on the same state of facts, and the case was twice dismissed, it is for the jury to determine whether or not he acted maliciously. Hinson v. Powell, 109 N. C. 534, 14 S. E. 301.

306 Thus, in an action against a railway company for malicious prosecution, it appeared that a series of robberies of defendant's freight cars had been committed for over a year; that an investigation was begun by the police, and prosecuted by defendant under their direction; that a person was arrested, confessed he participated in the crime, and implicated plaintiff, an employé of defendant at place of robberies; that the arrest was not made until after consultation with defendant's attorney and the district attorney; and that, after the hearing, plaintiff was discharged. It was held that, although an arrest and discharge raised a presumption of want of probable cause, from which the jury might have inferred malice, yet the other facts clearly showed absence of malice, and a verdict for the defendant should have been directed. Madison v. Pennsylvania R. Co., 147 Pa. 509, 23 Atl. 764. Accordingly, all relevant circumstances should be proved and considered. Palmer v. Broder, 78 Wis. 483, 47 N. W. 744; Bigelow v. Sickles, SO Wis. 98, 49 N. W. 106.

307 Ante, p. 615, note 251.

other hand, no matter how much malice be shown, want of probable cause will not be inferred from it. The law does not inquire into private motive. If the defendants can show reasonable and

209

The plain

probable cause, they make out a complete defense.308 tiff cannot recover if the defendant had reasonable and probable cause, even though he acted with malice, and though the charge on which the arrest was made was untrue.30% He must both allege and prove want of probable cause, or he cannot recover,310 subject to the consideration of the effect of acquittal, discharge, or dismis sal.31

311

308 Sanders v. Palmer, 5 C. C. A. 77, 55 Fed. 217; Johnson v. State, 32 Tex. Cr. R. 58, 22 S. W. 43. Compare Jordan v. Alabama G. S. R. Co., 81 Ala. 220, 8 South. 191. Et vide Brounstein v. Wile (Sup.) 20 N. Y. Supp. 204; Fugate v. Millar, 109 Mo. 281, 19 S. W. 71; Smith v. Hall, 37 Ill. App. 28; Mitchell v. Wall, 111 Mass. 492; Horn v. Sims, 92 Ga. 421, 17 S. E. 670. Compare Jackson v. Linnington, 47 Kan. 396, 28 Pac. 173. No inference as to motive can be drawn from the matter of termination of previous suit by the court (Hinson v. Powell, 109 N. C. 534, 14 S. E. 301; Swindell v. Houck, 2 Ind. App. 519, 28 N. E. 736), or by the party (Smith v. Burrus, 106 Mo. 94, 16 S. W. 881); nor, as a matter of law, from unworthy character of witness (Jordan v. Alabama G. S. R. Co., 81 Ala. 220, 8 South. 191). Et vide Farrar v. Brackett, 86 Ga. 463, 12 S. E. 686.

309 Redman v. Stowers (Ky.) 12 S. W. 270. And see Lunsford v. Dietrich, 86 Ala. 250, 5 South. 461.

310 Hicks v. Faulkner, 8 Q. B. Div. 167; Vennum v. Huston, 38 Neb. 293, 56 N. W. 970. Sufficient allegation of want of probable cause: Jones v. Jenkins, 3 Wash. St. 17, 27 Pac. 1022. Failure to allege: Ely v. Davis, 111 N. C. 24, 15 S. E. 878; Duncan v. Griswold, 92 Ky. 546, 18 S. W. 354. Burden of proof is on plaintiff. Le Clear v. Perkins (Mich.) 61 N. W. 357; Lucas v. Hunt, 91 Ky. 279, 15 S. W. 781, overruling Brown v. Morris, 3 Bush (Ky.) 81; 1 Archb. N. P. 446; Mitchell v. Jenkins, 5 Barn. & Adol. 588; Whalley v. Pepper, 7 Car. & P. 506; Walker v. Cruikshank, 2 Hill, 296. Even then it has been held that a creditor cannot escape liability for wrongfully suing out an attachment. Yarborough v. Weaver, 6 Tex. Civ. App. 215, 25 S. W. 468; Fry v. Estes, 52 Mo. App. 1. As to evidence admissible to prove and rebut inference of want of probable cause, see Barber v. Scott (Iowa) GO N. W. 497; Tykeson v. Bowman (Minn.) 61 N. W. 909. As to evidence not admissible, see Grout v. Cottrell (Sup.) 22 N. Y. Supp. 336, reversed in 143 N. Y. 677, 38 N. E. 717.

311 Ante, p. 610. Where one accused of a crime is discharged by the examining magistrate, and sues the prosecutor for malicious prosecution, the burden of proving probable cause is on defendant. Barhight v. Tammany, 158 Pa. St. 545, 28 Atl. 135.

LAW OF TORTS-40

Province of Court and Jury.

The comment made by Mr. Pollock on the doctrine of probable cause, as being neither a question of law nor of fact in false imprisonment,312 applies with equal propriety to the doctrine of probable cause as involved in malicious prosecution.

In the earlier stages of the English law, there can be no doubt that the question of reasonable cause was one of law, for the court. Mr. Stephen,313 after an exhaustive review of the English cases, concludes that this "acknowledged rule has been gradually affected by successive judicial decisions, until the practical burden of deciding whether or not the plaintiff has shown a want of reasonable cause has been, in effect, transferred to the jury." In England, malice has always been recognized as properly for the jury.314 In America, however, probable cause in malicious prosecution, was early recognized as a mixed question of law and fact.315 The authorities are agreed, with essential unanimity, that what circumstances are sufficient to prove probable cause must be decided by the court; that, where there is no conflict in the testimony as to what these circumstances are, the court must pass upon the whole case; but that, where the evidence is conflicting, it must be left to the jury to apply to the facts, as found by them, the law as to what constitutes reasonable and probable cause, as defined by the court. Malice is ordinarily exclusively for the jury; but if the court finds the presence of probable cause, as a matter of law, there is nothing for the jury to pass upon.316

312 Ante, p. 428, "False Imprisonment"; Pol. Torts, 192.

313 The law relating to actions for malicious prosecution: Steph. Mal. Pros. (London, 1888). Et vide review of recent English cases in 54 J. P. 145. The Canadian rule is that the existence of reasonable and probable cause is a question for the court, though the jury may be asked to find on the facts from which such cause may be inferred. Archibald v. McLaren, 21 Can. Sup. Ct. 588.

314 Mitchell v. Jenkins, 5 Barn. & Adol. 588.

315 Munns v. Dupont, 3 Wash. C. C. 31-41, Fed. Cas. No. 9,926, 1 Am. Lead. Cas. 249.

316 Sanders v. Palmer, 5 C. C. A. 77, 55 Fed. 217; Schattgen v. Holnback, 149 Ill. 646, 36 N. E. 969; Stewart v. Sonneborn, 98 U. S. 187; Knight v. International & G. N. Ry. Co., 9 C. C. A. 376, 61 Fed. 87; Thompson v. Price (Mich.) 59 N. W. 253; Jackson v. Bell (S. D.) 58 N. W. 671; Leahey v. March,

SAME-DAMAGES.

201. Damages are the gist of an action for malicious prosecution.

The necessity of alleging and proving damages as a part of the case has been recognized, although damage is not usually included in the enumeration of the essential elements of malicious prosecution. Malicious prosecution is a conspicuous illustration of a class of malicious wrongs, of which the gist is damages, and trespass and false imprisonment may be malicious, and therefore the basis of the award of exemplary damages; but even in the absence of proof of malice or proof of damage, the sufferer can recover. In other words, they are based upon the absolute or simple. rights from the violation of which damage is presumed. In malicious prosecution, however, there can be no recovery unless actual damage, conforming to the standard of the law, is alleged and proved; that is to say, the right violated is the right not to be harmed.

In the leading case of Byne v. Moore,318 where, in an action for maliciously indicting for an assault, the plaintiff gave no evidence that the bill was returned "Not found," and was thereupon nonsuited, the court refused to set aside the nonsuit. The ground of deci

155 Pa. St. 458, 26 Atl. 701; Robbins v. Robbins (Sup.) 15 N. Y. Supp. 215; Moore v. Northern Pac. R. Co., 37 Minn. 147, 33 N. W. 334; Gilbertson v. Fuller, 40 Minn. 413, 42 N. W. 203; Ball v. Rawles, 93 Cal. 222, 28 Pac. 937; Mahaffey v. Byers, 151 Pa. St. 92, 25 Atl. 93; Rankin v. Crane (Mich.) 61 N. W. 1007; Lewton v. Hower (Fla.) 16 South. 616; Bish. Noncont. Law, § 240; Anderson v. How, 116 N. Y. 336, 22 N. E. 695; Boyd v. Mendenhall, 53 Minn. 274, 55 N. W. 45. And see note, 26 Am. St. Rep. 141, 142, Cooley, Torts, 209, for illustration of what is for court and what is for jury. Nigh v. Keifer, 5 Ohio Cir. Ct. R. 1. In an action for malicious prosecution, it is error to instruct the jury that “if the facts are disputed, it is for you to determine whether or not there was probable cause." Beihofer v. Loeffert, 157 Pa. St. 365, 28 Atl. 217. In an action for malicious prosecution, submitting to the jury the question of probable cause is harmless error, so far as defendant is concerned, where the undisputed facts show want of probable cause. Brooks v. Bradford (Colo. App.) 36 Pac. 303.

318 5 Taunt. 187; Bigelow, Lead. Cas. 181.

sion was that if the plaintiff cannot prove injury sustained, either to his person, by imprisonment, to his reputation, by the scandal, or to his property, by the expense, he cannot maintain the action.319 The general principles of damages already considered apply. The plaintiff is entitled to recover if he has established a cause of action for nominal damages. 320 He may recover compensatory damages, reasonable hire withheld, loss of time of owner,321 for injured credit, decrease of earnings, peace of mind, mental suffering, and all proximate consequences of the wrong.322 Under general damages he can recover for injury suffered since the suit was commenced.323 Punitive damages may be allowed where ex324 Excessive 325 press malice is shown.3 and remote 326 damages

819 Selw. N. P. 1026; 2 Greenl. Ev. § 449; Savil v. Roberts, 1 Salk. 13; Jones v. Gwynn, 10 Mod. 214; Kramer v. Stock, 10 Watts (Pa.) 115; Godfrey v. Soniat, 33 La. Ann. 916; Murphy v. Redler, 16 La. Ann. 1. 2 Esp. N. P. 629, classifies the injury done by maliciously suing out a commission of bankruptcy (Brown v. Chapman, 3 Burrows, 1418) as an injury in cases where there is no trust. 1 Am. Lead. Cas. (5th Ed.) 258, collecting cases. 320 Farmer v. Crosby, 43 Minn. 459, 45 N. W. 866. Et vide Tripp v. Thomas 3 Barn. & C. 427. As to when he is entitled to only nominal damages, vide Schwartz v. Davis (Iowa) 57 N. W. 849; Girard v. Moore (Tex. Civ. App.) 24 S. W. 652.

321 Jones v. Lamon, 92 Ga. 529, 18 S. E. 423. As to difference in value of property before and after property has been garnished, vide Girard v. Moore, 86 Tex. 675, 26 S. W. 945.

322 Jones v. Jenkins, 3 Wash. St. 17, 27 Pac. 1022; Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382; Bull. N. P. 13, 14; Closson v. Staples, 42 Vt. 209; Gould v. Barratt, 2 Moody & R. 171; Whipple v. Fuller, 11 Conn. 581. Compare Sandback v. Thomas, 1 Starkie, 306, with Sinclair v. Eldred, 4 Taunt. 7. Vide comment in Webber v. Nicholls, 1 Russ. & M. 417, 4 Bing. 416; Tompson v. Mussey, 3 Greenl. (Me.) 305; Lawrence v. Hagerman, 56 Ill. 68. 323 Schmidt v. Hughes, 33 Ill. App. 65; Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382.

324 Cooper v. Utterbach, 37 Md. 282. In such cases plaintiff may show the financial condition of defendant. Winemiller v. Thrash, 125 Ind. 353, 25 N. E. 350. A verdict for $12,500 punitive damages has been sustained. Russell v. Bradley, 50 Fed. 515. But see Adams v. Gillam, 53 Kan. 131, 36 Pac. 51.

$25 Two thousand five hundred dollars for compelling a young woman to disrobe, and allow officers to run their fingers through her hair in search of

326 Tynberg v. Cohen (Tex. Civ. App.) 24 S. W. 314.