Art. 3. Elements of the Wrong. considered the case, the former proceeding is not terminated. In such case it is not competent to prove that no further proceedings were taken in the criminal case, after the commencement of the civil action, because the commencement of the civil action may have been itself instrumental in staying the criminal proceedings. Nor in a civil action and before termination of criminal proceedings will the court examine into the merits of the latter to ascertain the lack of foundation of the criminal charge. Hinds v. Parker, 11 App. Div. 329, 76 St. Rep. 955, 42 N. Y. Supp. 955, citing Swartout v. Dickelman, 12 Hun, 358. An action will not lie for a malicious arrest upon a criminal charge before a magistrate, unless the proceeding is so far ended that nothing can be done by the prosecutor without commencing anew. But to maintain the action it is not necessary to show an acquittal, such as would bar second prosecution for the same offense, nor is it essential that any judicial decision upon the merits should have been made. Clark v. Cleveland, 6 Hill, 344. The entry of a nolle prosequi with assent of defendant is a sufficient termination of prosecution to support the action. Moulton v. Beecher, 8 Hun, 100. Where the proof offered of the termination of a prosecution was that a recognizance had been taken from the plaintiff, and the indorsement made thereon upon the evidence taken by the police magistrate was as follows: "Bail discharged April 20, 1843." Evidence that there was an entry to the same effect in the book of minutes kept by the clerk of the criminal court was held sufficient proof of the termination of the proceeding. Bacon v. Townsend, 6 Barb. 428. In Gallagher v. Stoddard, 47 Hun, 101, where the plaintiff had been arrested on a criminal complaint, and where the plaintiff had paid a sum of money to the officer making the arrest and a receipt therefor was given by the plaintiff in settlement of all his claims, and a similar receipt by the officer, who signed the name of the justice issuing the warrant. Held, that the proceedings were not terminated so as to warrant an action for malicious prosecution; that the contention that the proceedings were terminated by the compromise under sections 663, 664, Code of Criminal Procedure, could not be sustained. The court said: "If it were to be admitted that the prosecution was terminated by the compromise, as provided for by the Code of Criminal Procedure, Art. 3. Elements of the Wrong. still we would not think such a compromise would constitute a termination of the prosecution that would justify an action for malicious prosecution." Citing Wilkinson v. Howell, Moo. & M. 495; McCormick v. Sisson, 7 Cow. 715; Sartwell v. Parker, 141 Mass. 405. In McCormick v. Sisson, 7 Cow. 715, where the defendant had obtained a warrant against the plaintiff for theft, and where plaintiff was discharged before the justice because the parties had settled between them. Held, not to be such an acquittal as to warrant action for malicious prosecution. Where the plaintiff was discharged by a magistrate because he was satisfied that there was no cause for commitment, the acquittal was held to be lawful, and to lay a sufficient ground for an action of malicious prosecution. Secor v. Babcock, 2 Johns. 203. Where the defendant had caused the arrest of her daughter-inlaw on charge of disorderly conduct, and where she was detained in jail over night and released next morning after examination, and where on the trial for malicious prosecution the magistrate's memory was at fault and was indefinite as to the grounds of dismissal, and where he thought he had discharged her after promising not to molest the defendant,-Held to be the duty of the court to submit to the jury the question of fact as to whether the charge was dismissed and the plaintiff acquitted, and also as to whether there was absence of probable cause. Robbins v. Robbins, 15 N. Y. Supp. 215. Though the plaintiff is bound to prove that the proceedings instituted against him have been terminated by failure of the jury to indict or otherwise, yet proof of such fact is not conclusive evidence of the plaintiff's innocence, and the defendant may prove that he was in fact guilty of the crime charged. Barber v. Gould, 20 Hun, 446. Where plaintiff had been committed to await the action of the grand jury, and before the jury met was discharged on habeas corpus,-Held, that such discharge was not a determination of the plaintiff's innocence, or a termination of the prosecution so as to uphold an action for malicious prosecution. On the second appeal of the case of Smith v. Smith, 26 Hun, 573, an action founded upon malicious filing of a lis pendens,Held, that the complaint should be dismissed upon the ground that the complaint did not show that the former prosecution had been Art. 3. Elements of the Wrong. ended. Brady, J., dissented. This complaint was formerly sustained on demurrer. See Smith v. Smith, 20 Hun, 555. Where two actions in a justice's court failed because of the plaintiff's failure to appear, and a new action was commenced upon the same judgment, which was still pending, the litigation is not terminated. Want of probable cause cannot be inferred solely from the discontinuance of a former suit. Palmer v. Avery, 41 Barb. 290, affirmed 41 N. Y. 619. In Nebenzahl v. Townsend, 61 How. Pr. 353, 12 Week. Dig. 511, it was held that where an action of malicious prosecution was brought when there was an appeal pending in the action in which plaintiff had been arrested, that such action was not terminated. See also, to the same effect, Peck v. Hotchkins, 52 How. Pr. 226, where it was held that, although complaint in an attachment suit had been dismissed, yet the prosecution was not terminated if an appeal from the judgment of dismissal was taken and was still undetermined. In Sailesbury v. Creswell, 14 Hun, 460, a nonsuit was sustained upon the ground that the plaintiff was not in a situation to maintain the action, because the litigation before a justice, wherein he was arrested, and the execution against his person was not terminated in his favor, and also upon the ground that the recovery of judgment before the justice was unreversed and in full force and effect, and that was evidence of probable cause. Distinguishing Burt v. Place, 4 Wend. 591. If an order of arrest has been vacated upon the merits, an action of malicious prosecution lies in favor of the person arrested, and he is not obliged to wait until the action in which he has been arrested is terminated in his favor. It seems, however, that the rule is otherwise where there has been an appeal from the order vacating the arrest, so long as the appeal is pending. Ingram v. Root, 51 Hun, 238, 3 N. Y. Supp. 858. Where the plaintiff had been arrested under the Stillwell Act and the warrant of arrest was dismissed on the affidavit, showing previous arrest, and an action for malicious prosecution was brought pending the defendant's appeal from the order dismissing the warrant, it was held that the prosecution was terminated within the meaning of the rule which requires it to be at an end before an action for malicious prosecution can be instituted. "When a party has final judgment in his favor upon trial, the Art. 3. Elements of the Wrong. prosecution is so far terminated that he may sue for malicious prosecution. If an appeal be taken from the judgment, that may furnish reason for staying the trial of the action for malicious prosecution until decision of the appeal. If the judgment should be affirmed, then it could not be held that the action was prematurely begun. If it should be reversed the action then would be pending and that action would furnish a defense. The party commencing the action, while the appeal is pending, simply takes the risk of an adverse decision upon the appeal, and thus suffer defeat in the action. Marks v. Townsend, 97 N. Y. 594. Where the action is for abuse of legal process rather than for malicious prosecution, it is not necessary to allege or prove termination of the prosecution. Bebinger v. Sweet, 1 Abb. N. C. 263. (See Art. XI.) One of the exceptions to the rule that the former prosecution must be terminated is where the prosecution complained of is malicious abuse of process. Thus, where the defendant has made use of a warrant of arrest for the collection of a common debt, and has extorted property from the plaintiff thereby, the latter may sue for the loss while the action of debt is pending. See Graneer v. Hill, 4 Bing. N. C. 212, and also cases cited. Speaking of the necessity of showing a termination of the former prosecution, the court in Bump v. Betts, 19 Wend. 421, said: "The reason for this proof is advanced that otherwise he (plaintiff) might recover in this action and still be convicted or have judgment against him on the former suit." And the court. further says: "That when the reason of the rule fails, the rule is not applicable," and thus where a former prosecution was proceeding by attachment against the plaintiff as having fled the county to defraud creditors, it was held not necessary to prove termination of the former suit as such proof is only required where the plaintiff had an opportunity to make a defense in the former action. Judgment of criminal conviction is conclusive only between the parties; that is to say, between the plaintiff and defendant. There is no privity as between the defendant and strangers to the record. Where a judgment of conviction on a plea of guilty was obtained by fraud, duress, and conspiracy, the conviction is no bar to an action of malicious prosecution. Johnson v. Girdwood, 7 Misc. Rep. 652, 58 St. Rep. 338, 28 N. Y. Supp. 151. Art. 3. Elements of the Wrong. SUBDIVISION 8. Damage to Plaintiff. Some text-book writers have included proof of damage as one of the elements in an action for malicious prosecution. Bigelow on Torts, 90. But this element seems in general to have been disregarded by the courts, probably because in a majority of the cases the damage is presumed, as, for example, the injury to reputation, arising out of an arrest, the humiliation, etc. In regard to the requirement that damage be caused it should be noted that such damage need not be necessarily pecuniary. "It may be either damage to a man's fame, as if the matter he is accused of be scandalous, or where he has been put to any danger of loss of life or limb or liberty, or damage to his property, as where he is obliged to spend money in necessary charges to acquit himself of the crime of which he is accused." Mayne on Damages, 345. * * * The elements of damage in malicious prosecution are thus stated by the annotator in Burlingame v. Burlingame, 8 Cow., at p. 145, note: "The damage must be either to the person by imprisonment, to the reputation by scandal, or to the property by expense." In Frierson v. Hewitt, 2 Hill (S. C.), 499, it was held that where the defendant procured the defendant to be indicted for killing the former's cattle, the plaintiff must prove special damage, for the offense, though charged as a crime, was only a trespass. So, too, where the defendant falsely prefers against the plaintiff a charge of assault and battery, without cause and with malice, etc. Byrne v. Moore, 5 Taunt. 187. "In an action for malicious prosecution the plaintiff is entitled to recover not only for the unlawful arrest and imprisonment and the expenses of his defense, but also for the injury to his fame and reputation, occasioned by the false accusation. The latter, indeed, is in many cases the gravamen of the action. An accusation of crime, made under the forms of law, or upon the pretense of bringing a guilty man to justice, is made in the most imposing 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. The most appropriate remedy for the calumny in such cases is by an action for malicious prosecution." |