principal and agent, and corporations public and private, personal representatives of deceased persons, including the right. of survivorship and other kindred subjects, the law of defenses and many practical suggestions, are presented in chapters devoted to these questions. Although in many of the states of our Union the commonlaw system of pleading does not prevail, it must, we think, be conceded that it is the foundation of all codes. No member of the legal profession can be a successful pleader without some knowledge of the old system. The author has therefore presented an analysis of the declaration at common law in an action for malicious prosecution, with appropriate comments upon its component parts, illustrating the subject by a collection of precedents both under the common law and the codes. In the chapter upon evidence the law has been given, both as to the plaintiff's proofs under the general issue and special pleas of justification, with and without proof of special damages, as well as the defendant's proofs in all cases. On the subject of damages will be found an exhaustive treatise upon the elements of compensatory damages, the right to recover exemplary or vindictive damages, and matters in mitigation thereof. The subject of excessive damages has been illustrated by numerous applications from adjudicated cases. As there is, perhaps, no branch of the law in which the practitioner, especially the younger member of the profession, feels the need of assistance so much as in the preparation of his instructions in those jurisdictions where they are required. to be in writing, or in the preparation of requests for special charges where the charge is given orally, a chapter has been devoted to this subject, in which will be found numerous illustrations and precedents of instructions and requests for special charges applicable to the trial of cases in which the wrongs treated of in this work are in litigation. In many states laws have recently been enacted providing for the submission to juries of interrogatories for special findings on the matters in controversy. These laws apply with peculiar force to actions for malicious prosecution, false imprisonment and the abuse of legal process. A chapter has therefore been devoted to the discussion of this subject, in which the existing law will be found fully stated, with numerous precedents for the submission of special interrogatories amply sufficient to guide the practitioner. The increasing importance of actions for malicious prosecution, false imprisonment and the abuse of legal process, and the absence of any work especially devoted to their discussion, has induced the author to submit this treatise to the legal profession. CHICAGO, 1892. MARTIN L. Newell. Distinction between a malicious use and a malicious abuse of process Where the action will lie generally (1) The want of probable cause as an essential element Probable cause— Advice of counsel, etc. (2) Malice an essential element (3) Acquittal of the plaintiff . An instruction which increased the burden of proof (1) Malice is not necessarily revenge (2) Maliciously suing out an attachment To be carefully guarded and its principles strictly adhered to 7 23 23 23 24 25 26 (3) In bankruptcy matters Who are liable to respond in damages Attorneys liable to respond, etc.- Liability of Liability of attorneys for suing out a writ of ne exeat The malice of the client does not render the attorney liable Materiality of malice in actions for prosecuting suits in the name of Criminal informants protected - Honest belief-Strong grounds of (1) Prosecution for felony-Prisoner discharged - The action not (2) Prosecutor liable where the complaint states no offense 29 Sufficiency of the indictment, complaint, etc., in a criminal prosecu- tion as a basis in an action for malicious prosecution (1) Complaint showing no offense punishable at law Will the action lie for maliciously prosecuting a civil suit? 29 30 31 32 35 35 36 37 39 An arrest and holding to bail not indispensably necessary The contrary doctrine 39 39 40 (1) Where the action will lie for maliciously, and without probable (a) Malicious institution of proceedings in bankruptcy (f) Maliciously prosecuting an action of forcible entry and de- 44 (g) Maliciously instituting a suit in replevin 49 (h) Attaching personal property for a larger sum than was (2) The contrary doctrine - Where the action will not lie Malicious prosecution for suing out an attachment Survival of the action Survival of the action for malicious prosecution (1) What is a sufficient imprisonment (a) Detention of person by cashier of a bank (b) Imprisonment of an infant-Assent immaterial 57 58 58 59 59 60 60 62 62 62 62 63 64 |