Art. 3. Elements of the Wrong. lease thereof under threats and duress, and the relief demanded was that the release be canceled and for damages for the malicious prosecution, and where the case was tried at Special Term without either party objecting or making a demand for a jury trial, it was held that it was a proper case for trial at Special Term; that the equitable relief was an indispensable condition as to the existence of the legal right of action; that the plaintiff, having proceeded to trial without objection, or request for the intervention of a jury, could not complain of the tribunal to whose jurisdiction he had submitted. Stono v. Weiller, 128 N. Y. 655, 40 St. Rep. 434, affirming 32 St. Rep. 936, 10 N. Y. Supp. 828. § 2. Statute of limitations. The statute of limitations is two years in actions of malicious prosecution. Code Civ. Proc., § 384. §3. Survival and assignment. By section 1910, subdivision 1, of the Code of Civil Procedure, an action for personal injury is a demand or claim not assignable, and an action for malicious prosecution is included among personal injuries by section 3343, subdivision 9, of the Code. An action for malicious prosecution is not assignable. Lawrence v. Martin, 22 Cal. 173; Noonan v. Orton, 34 Wis. 359. It does not survive the death of the injured party. Littleton v. Dinehart, 5 Cush. 543. ARTICLE III. ELEMENTS OF THE WRONG. SUBDIVISION 1. General statement 2. Criminal and civil prosecution 4. Want of probable cause .... 5. Want of probable cause; must concur.with PAGE. 481 ... 482 487 490 495 496 499 505 In order to sustain an action for malicious prosecution, five elements must coexist: (1) Prosecution of the plaintiff by the Art. 3. Elements of the Wrong. defendant; (2) want of reasonable and probable cause for that prosecution; (3) malice, express or implied; (4) the determination of the prosecution in favor of the party prosecuted; and (5) loss or damage to that party by the prosecution. If any of these five elements are absent, no action will lie. Underhill on Torts (7th ed.), 162. "A plaintiff, to succeed in an action for malicious prosecution, must prove three things: (1) That the proceedings terminated in his favor, if, from their nature, they were capable of such termination; (2) absence of reasonable or probable cause; and (3) malice." Ringwood on Torts (3d ed.), p. 46. The necessary elements in malicious prosecution was thus stated by Mullin, J., in Laird v. Taylor, 66 Barb. 142: "To entitle the plaintiff to recover in this action, he must establish four particulars: (1) That he was prosecuted by defendant; (2) that such prosecution had been terminated in his (plaintiff's) favor; (3) that it was malicious; (4) that it was without probable cause." In Kline v. Hibberd, 80 Hun, 54, 61 St. Rep. 321, 29 N. Y. Supp. 807: "To sustain an action for malicious prosecution, it is necessary that three elements shall occur in the prosecution complained of: (1) The proceeding must have been instituted without probable cause; (2) there must have been malice in instituting it; (3) it must have been completely terminated." SUBDIVISION 2. Criminal and Civil Prosecution. Where no judicial proceeding has been begun, an essential element to the action of malicious prosecution is wanting. So held where a passenger on a street car was, on the instance of a conductor, illegally arrested by a policeman without a warrant, was taken before a police justice, and, no complaint being made, was discharged. It seems that the proper remedy in such a case is false imprisonment. Barry v. Third Ave. R. R. Co., 51 App. Div. 385, 98 St. Rep. 615, 64 N. Y. Supp. 615, citing Brown v. Chadsey, 39 Barb. 253; Murphy v. Martin, 58 Wis. 276; Cooley on Torts (2d ed.), 195–208. Malicious prosecution will not lie for the mere issuing a warrant of arrest without causing the service of it. Lawyer v. Loomis, 3 T. & C. 393. Art. 3. Elements of the Wrong. Procuring a search warrant has been held to be the institution. of a prosecution. Casey v. Sheets, 67 Ind. 375. So, too, the filing of an affidavit as the beginning of bastardy proceeding. Coffee v. Meyers, 84 Ind. 105. Or the taking out of a peace warrant. Hyde v. Greuch, 62 Md. 577. By Penal Code, § 159, a person who maliciously and without probable cause procures a search warrant to be issued and executed is guilty of a misdemeanor. To same effect, see Code Crim. Proc., 811. See also 1 R. S. 92, § 11, known as the Bill of Rights, asserting the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and that no warrant can issue but upon probable cause, supported by oath or affirmation, etc. Where one makes a false and malicious charge against another, and by means thereof procures an indictment and arrest, it is no defense in an action for malicious prosecution to show that the false charge did not allege facts constituting a crime charged in the indictment, or any other criminal offense. In this case the crime charged was forgery, and it was alleged and stated in the indictment to consist of an erasure of payment upon a bond. Plaintiff was indicted for forgery. The court held that these facts did not constitute forgery, and that, nevertheless, the defendant was liable for malicious prosecution. The court says: "I do not doubt if the defendant's statement to the district attorney and the grand jury had been true, and that an indictment had been found and prosecuted upon his truthful statement, that this action could not have been maintained. In such a case the defendant would not have been guilty of any wrong. The proof of the plaintiff would have been attributable to the erroneous legal conclusions of the district attorney and the grand jury. There is no doubt that if the person truly states to a judge, and the judge thereupon does an act which the law will not justify, the party who made the statement is not liable, because in that case the grievance complained of arises, not from the false statement of the party, but from a mistake of the judge. Denis v. Ryan, 65 N. Y. 385, affirming 63 Barb. 145, 5 Lans. 350. * * * Consent to a prosecution induced by fraud, duress, and conspiracy is no defense. Johnson v. Girdwood, 7 Misc. Rep. 652, 58 St. Rep. 338, 28 N. Y. Supp. 151. Art. 3. Elements of the Wrong. The action also seems to lie where the civil suit has been begun maliciously and without probable cause by an arrest, or by an attachment of property. So, too, malicious prosecution lies for the instituting of proceedings to have a person declared insane and placed 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." Cooley on Torts (2d ed.), 219, citing Lockenour v. Sides, 57 Ind. 360. The action has been held to lie for maliciously instituting successive suits without probable cause, returnable before a justice of the peace, and causing great trouble and expense to the plaintiff. Pangburn v. Bull, 1 Wend. 345. In Brounstein v. Wile, 47 St. Rep. 788, 20 N. Y. Supp. 204, the prosecution complained of was an action for replevin, and it was claimed that, under the circumstances, it tended to injure the plaintiff's financial reputation. Held, that a nonsuit was error; that the question of probable cause and malice should have been submitted to the jury. In Brounstein v. Sahlein, 65 Hun, 365, 48 St. Rep. 19, 20 N. Y. Supp. 213, it was held that an action for malicious prosecution would lie, founded upon an action of replevin, wherein the plaintiff's goods were taken by the sheriff on the ground of fraud, and where subsequently the replevin action was discontinued on terms permitting the plaintiff to enter judgment dismissing the complaint upon the merits. Citing Pangburn v. Bull, 1 Wend. 345; Bump v. Betts, 19 Wend. 421; Dempsey v. Lepp, 52 How. Pr. 11; Lawton v. Greene, 64 N. Y. 331; Shaffer v. Loucks, 58 Barb. 426; Closson v. Staples, 42 Vt. 209; 14 Am. & Eng. Encyc. 34. It was further held that the arrest and holding to bail are not indispensably necessary to the maintenance of the action for malicious prosecution. Up to a comparatively recent date, despite the decision in Pangburn v. Bull, 1 Wend. 345, the serious question was presented as to whether an action for malicious prosecution would lie for the prosecution of a civil action maliciously and without reasonable or probable cause to the injury of a party. A writer in the American Law Register, in 1882, in reviewing the authorities, states that practically at that time but five cases in this country had Art. 3. Elements of the Wrong. recognized such right. The more recent authorities in this State, hereafter cited, set this question entirely at rest within this jurisdiction. The question of malicious prosecution by civil action is discussed in the opinion at Special Term, in Smith v. Smith, 20 Hun, 559, note. In this case there was a demurrer to the complaint, which alleged the malicious filing of a lis pendens. Discussing the right of action for malicious civil suits, Lawrence, J., on the authority of Closson v. Staples, 42 Vt. 217, says: "The early English cases show very clearly that, before the statutes entitling defendant to costs existed, they had a remedy at common law for injuries sustained by reason of suits which were malicious and without probable cause. It would seem, however, from more recent decisions, that the present English rule, which restricts or limits the right of action for maliciously prosecuting civil suits without probable cause, stands mainly upon the ground that the costs which the statute provides that the successful defendant shall recover are an adequate compensation for the damages he sustains; but, under their rule, it does not appear that the right of action is restricted to those cases where the process is by attachment." "The principle of the common law, recognized by the English courts before the statutes, allowing costs to defendant, and which gave a remedy for injuries sustained, by reason of suits which were malicious and without probable cause, is and ought to be operative still, and we think it affords a remedy in all such cases where the taxation of costs is not an adequate compensation for the damage sustained. But where the damages sustained by the defendant, in defending a suit maliciously prosecuted, without reasonable or probable cause, exceed the costs obtained by him, he has, and of right should have, a remedy by action on the case." But, on a subsequent appeal, where the cause of action set forth in the complaint was the malicious filing of a lis pendens, and where the complaint failed to show that such prosecution was ended, and also failed to show that it was malicious and without probable cause, a demurrer to the complaint was sustained. Smith v. Smith, 26 Hun, 573, Brady, J., dissenting. The question as to whether malicious prosecution lies against a plaintiff who has been unsuccessful in a civil action again came up in Ferguson v. Arnow, 142 N. Y. 583. The court said: "A party |