but to gratify some ill-will or advance some private interest, and therefore is not entitled to be protected.210

Trost, 34 La. Ann. 1146, 44 Am. Rep. 461; Lanning v. Christy, 30 Ohio St. 115, 27 Am. Rep. 431.

210 Brown v. Vannaman, 85 Wis. 451, 39 Am. St. Rep. 860, 55 N. W. 183; Lowry v. Vedder, 40 Minn. 475, 42 N. W. 542.

CHAPTER XXVII.

INJURY TO CONSTITUTIONAL RIGHT OF REPUTATION CONTINUED-BY MALICIOUS PROSECUTION.

413. Introductory.

§ 414. Nature of right and injury-Does it embrace both criminal and civil action.

415. Same continued-Decisions conflicting-The right of action upon principle stated.

§ 416. Same continued-Conflict of decision further consideredCases sustaining action where there is an arrest or seizure of property.

§ 417. Same continued-Summary of comments upon confusion of authority and of principles of the right of action.

§ 418. Same continued-Subject considered with special reference to auxiliary processes.

§ 419. Malicious prosecution-Defined and explained and distinguished from kindred wrongs.

§ 420. Termination of suit.

Probable cause-Defined-Practical application.
Same continued-Charging the jury.

§ 421.

§ 422.

§ 423.

§ 424.

§ 425.

§ 426.

Same continued-Dependent upon guilt or belief.
Advice of counsel, magistrates and others-Effect.
Acting upon information received from others.
Conviction as evidence of probable cause.

§ 427.

Acquittal as evidence of probable cause.

§ 428.

Malice as an element of the wrong.

§ 429. Malice defined.

§ 430. Malice continued-How shown-Practical deductions.

§ 431. Malice continued-Province of court and jury in respect thereto.

§ 432. Measure of damages.

§ 413. Introductory.-The courts of justice are maintained that all injuries may be redressed and the guilty ones punished. And for this purpose their doors are open to all, everyone having free access to

them upon condition that groundless and malicious cases are not instituted. This does not mean that every case which fails in the courts is wrongful, for many just claims fail because of some slight inability or slip in the proof. The punishment of paying the costs of the suit is deemed a sufficient deterrent and penalty for those bringing cases which they are unable to prove. But for an action of which there is not only no proof, but also no foundation, and which is brought with malice, an action in tort will lie. The first inquiry in the consideration of the subject is as to the nature of the right of an individual who may be thus injured.

§ 414. Nature of Right and Injury-Does It Embrace Both Criminal and Civil Action.-According to the common law, the malicious prosecution of an action was considered as an injury to a man in his reputation. Latterly, in England, by act of parliament, this was limited to criminal prosecutions, but as we shall presently see, some states adopted the common law embracing civil actions, where special injury is done to property affecting one's credit or reputation or occupation as a business man. The primary right invaded is the right of personal security, embracing the right to the enjoyment of his reputation as a citizen, or as a business or professional man. Malicious prosecution is classed under all the codes as an injury to character, permitting it, as they do, to be united with slander or libel in one complaint, the gist of the action being an injury to plaintiff's reputation.1 It may readily be perceived that "an accusation of crime, made under the forms of law, or on the pretense of bringing a guilty man to justice, is made in the most imposing

1 Kinkead's Code Pleading, sec. 28; Shore v. Smith, 15 Ohio St. 173; Pomeroy's Code Remedies, sec. 496.

and impressive manner, and may inflict a deeper injury upon the reputation of the party accused than the same words uttered under any other circumstances."2 "A man's reputation may be destroyed or injured as effectually by preferring malicious indictments or prosecutions against him, as by spoken or written words." And so, just as libel or slander of one in his occupation constitutes the violation of his right to the enjoyment of reputation, does the groundless prosecution of a malicious civil suit equally injure him in his occupation or business, and for every injury to property, credit or reputation, the law has provided an appropriate remedy; and hence an action on the case will lie for the malicious prosecution of a civil suit, where the party has been ar rested or has suffered other special and extraordinary grievance, such as an interference with property. The right to and cause for action for such wrong is an action on the case for an injury to his reputation by and through an interference with his property rights, recovery being allowed for the consequential damages done, for example, to one's business, credit and reputation, and for all expenses incurred in connection therewith.5

§ 415. Same Continued Decisions Conflicting-The Right of Action Upon Principle Stated. The lack of harmony among the American authorities as to whether or not there exists a right of action for the malicious prosecution of a civil suit, without an arrest of the person or seizure of property, leads us to believe that there has not been a proper appreciation of the

2 Sheldon v. Carpenter, 4 N. Y. 579, 55 Am. Dec. 301.

3 Shore v. Smith, 15 Ohio St. 173; 3 Blackstone's Commentaries, 135.

Bitz v. Meyer, 40 N. J. L. 252, 29 Am. Rep. 233.

5 Lawrence v. Hagerman, 56 Ill. 68, 8 Am. Rep. 674.

right injured, and we do not find it to have been anywhere scientifically considered among the cases or by any text-writer.

The primary right to a good business reputation, it would seem, is invaded by the institution of a malicious civil suit, the natural tendency of which is to injure the reputation, and the auxiliary processes of courts, usually resorted to for seizure of property, such as attachment, an appointment of a receiver to take charge of a business, or a temporary injunction, are but the means to accomplish the general purpose of the action, and are the incidents of the malicious action. It can only be claimed in support of the rule adopted by some courts, that no right of action exists for the malicious prosecution of a civil action, without arrest or seizure of property, that the two acts, viz., (1) the institution of the groundless action, and (2) the arrest or seizure, combined, constitute the invasion of the right of reputation. The forcible language of a learned writer is pertinent in this connection, viz., pleading "is the truest guide to the knowledge of the common law, the key that opens the inmost recess, and an expositor that discloses and explains the most abstruse parts of it."

What is the cause of action? Can it be claimed otherwise than that the gist of any malicious prosecution-criminal or civil-is maliciously instituting a groundless action? Is not one injured among his business friends and associates by the mere institution of a groundless action, the natural tendency of which is to injure credit, thus compelling one to defend a groundless action? Such actions are now heralded broadcast by mercantile agencies as soon as instituted, and the business world is at once in possession

6 Lord Coke; Kinkead's Common-law Pleading, 3.