Art. 9. Procedure and Trial.

the jury. Gierhon v. Ludlow, 25 St. Rep, 352, 6 N. Y. Supp.

111.

Where there is evidence tending to show the fact that there was an agreement between the parties which authorized the plaintiff to do the act for which the malicious prosecution was commenced, it is proper for the judge to charge the jury that if from the evidence the jury should be of the opinion that there was such an agreement or understanding, that then there was want of probable cause. Stevens v. Lacour, 10 Barb. 62.

In an action for malicious prosecution, founded upon the fact that the defendant had charged the plaintiff, his clerk, with embezzling money, the court charged that if the defendant, prior to making the complaint against the plaintiff, settled with him for the moneys claimed to have been embezzled as for moneys had and received, that this would constitute evidence that he did not believe the plaintiff had embezzled the money. Held error;

that even if the money was embezzled the defendant had a right to settle as upon an implied contract; that such settlement was no bar to a criminal prosecution, and that it was not evidence that the defendant did not believe that the money had been embezzled. Fagnan v. Knox, 66 N. Y. 528, 1 Abb. N. C. 246, reversing 40 N. Y. Super. 41.

The jury should be charged as to the rule governing exemplary damages, and its restrictions and limitations, and the question should not be left wholly to their discretion. Kutner v. Fargo, 20 Misc. Rep. 207, 79 St. Rep. 752, 45 N. Y. Supp. 752.

Where the defendant had lost money, which was found near a woodpile where the defendant was at work; and where later the defendant, upon hearing that the plaintiff had displayed a large roll of bills, procured a warrant of arrest, although he knew that the plaintiff was engaged on a contract, and that a considerable sum would be paid him about that time,-Held, that the court properly refused to charge that the plaintiff could not recover as matter of law; that the case was one for the jury. Sprague v. Gibson, 43 St. Rep. 832, 17 N. Y. Supp. 685.

It is error to charge "that the law infers malice when there is want of probable cause." The jury may infer malice from want of probable cause, but it is not an absolute inference of law. Jennings v. Davidson, 13 Hun, 393.

Where the only evidence tending to show probable cause is that

Art. 10. Damage.

of the defendant and his agent, while the plaintiff testifies that he was not guilty of the charge and is corroborated by others, as well as by the fact of his acquittal, it is error to dismiss the complaint; the question is for the jury. Giehon v. Ludlow, 6 N. Y. Supp. 111.

Where the evidence shows facts which led the defendant to believe the guilt of the plaintiff, although he was mistaken, and are not such as to charge him with reaching an erroneous conclusion through failure to exercise ordinary prudence and discretion, a verdict in favor of plaintiff, on the grounds that probable cause was not shown, should be set aside. Mohar v. Simmons, 3 St. Rep. 293.

SUBDIVISION 3.

Costs.

If the plaintiff recovers less than $50 damages in an action for malicious prosecution the amount of his costs cannot exceed the damages. Code, § 3228.

For a case where an extra allowance of $1,000 to the defendant on dismissal of the complaint was held to be excessive, see Dann v. Wormser, 38 App. Div. 460, 90 St. Rep. 474, 56 N. Y. Supp.

Damages in these cases may be based upon injury to person, to reputation, and to pocket. Scott v. Dennett, etc., Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016.

Where the plaintiff had been sued civilly and his property attached by a corporation of which he had been an officer, it was held that the jury in awarding damages might consider the loss of his office, the actual expenses incurred by the plaintiff in his vindication, any general impairment of his integrity in social and mercantile aspect, and the shame and humiliation endured as a direct result of the publicity of his arraignment upon a charge

Art. 10. Damage.

injuriously affecting his trustworthiness. A verdict for $31,700 was sustained, although it was shown that he had spent only $2,500 expenses for counsel fees in the prior action. Willard v. Holmes et al., 2 Misc. Rep. 303, 21 N. Y. Supp. 998, judgment reversed 142 N. Y. 492.

It is correct to charge that if the jury find for the plaintiff he is entitled to his actual damages at all events. But if they find that the defendant instituted the prosecution in reckless disregard of plaintiff's right, they may find therefrom that degree of malice which will enable them to add smart money to the amount of actual damage. Brown v. McBride, 24 Misc. Rep. 236, 86 St. Rep. 620, 52 N. Y. Supp. 620, and cases cited.

Where the plaintiff in an action for malicious prosecution had paid his attorney a fee of $150 to defend a replevin suit brought by the defendant, he is entitled to recover that item as damage in the malicious prosecution. Where, however, the plaintiff had in the replevin action recovered six cents damages, with costs, the demand for damages for the taking of goods is res adjudicata, and cannot be recovered in a subsequent action for malicious prosecution. Gerken v. Ruppert, 33 Misc. Rep. 382, 67 N. Y. Supp. 589, 101 St. Rep. 589.

In an action for malicious prosecution the plaintiff may recover for the expenses of his defense in the former action. Sheldon v. Carpenter, 4 N. Y. 580.

In an action for malicious prosecution the plaintiff may recover for the injury to his fame and reputation, and this bars an action for slander for the same accusation. Sheldon v. Carpenter, 4 N. Y. 580.

If the plaintiff intends to give evidence or particular instances of loss occasioned by the wrongful acts of the defendant, a bill of particulars thereof must be given, and it seems the facts must. be pleaded. Dietz v. Leber, 33 App. Div. 563, 87 St. Rep. 977, 53 N. Y. Supp. 977.

Evidence of injury to plaintiff's business is not admissible unless such injury has been specially pleaded. So held where plaintiff was an attorney, and where such evidence was introduced upon the theory that it tended to establish "loss of credit and reputation," as alleged in the complaint. Evins v. Metropolitan Street Ry. Co., 47 App. Div. 511, 96 St. Rep. 495, 62 N. Y. Supp. 495.

Art. 10. Damage.

In Johnson v. Comstock, 14 Hun, 238, a verdict of $1,000 was held not to be excessive for the malicious issuance of a warrant of search and for searching plaintiff's premises thereunder.

Where the plaintiff had been arrested through mistake, of which the plaintiff was the responsible author, it was held that a verdict of six cents should not be set aside upon the ground of inadequate damages. Toomey v. D., L. & W. R. R. Co., 2 Misc. Rep. 82, 49 St. Rep. 623, 21 N. Y. Supp. 448.

A verdict of $1,000 was held not to be excessive where the plaintiff was only locked up for half an hour on a charge of forgery. Thorpe v. Carvalho, 14 Misc. Rep. 554, 36 N. Y. Supp. 1, 70 St. Rep. 760.

Where the plaintiff had been arrested on a charge of forgery, though the proceedings were subsequently abandoned,- Held a verdict of $1,000 was not excessive. School v. Schnebel, 29 St. Rep. 676, 8 N. Y. Supp. 855.

Where plaintiff was discharged without trial, and was put to no expense, Held, nevertheless, that a verdict for $250 was not excessive. Sprague v. Gibson, 43 St. Rep. 832, 17 N. Y. Supp. 685.

SUBDIVISION 2.

Punitive Damages.

If the jury find that the defendant instituted the prosecution in wanton and reckless disregard of the plaintiff's rights, they may find therefrom that degree of malice which will warrant smart money, in addition to actual damages. Brown v. McBride, 24 Misc. Rep. 236, 86 St. Rep. 620, 52 N. Y. Supp. 620.

A corporation is not liable in exemplary damages for the malicious prosecution by its agents unless such acts were previously authorized or subsequently ratified, and to warrant ratification there must be proof that the principal had knowledge of the agent's malice, or that the circumstances warranted the inference that he believed the agent to have been guilty of the malicious act. Kutner v. Fargo, 20 Misc. Rep. 207, 79 St. Rep. 752, 45 N. Y. Supp. 752.

Advice of counsel is material in mitigation of damages, though it cannot mitigate actual damages. The actual damage done to a party cannot be mitigated. Brown v. McBride, 24 Misc. Rep. 236, 86 St. Rep. 620, 52 N. Y. Supp. 620.

Art. 11. Malicious Abuse of Process.

ARTICLE XI.

MALICIOUS ABUSE OF PROCESS.

The text-book writers treat of the distinction between malicious prosecution and abuse of legal process. If the process, either criminal or civil, is willfully made use of for the purpose not justified by the law, it is an abuse for which an action will lie. The following are illustrations: Entering up judgment and suing out execution after demand has been satisfied; suing out attachment for an amount greatly in excess of debt; causing arrest for more than is due; levying execution for an excessive amount. In these cases proof of actual malice is not important, except as it may tend to aggravate damages. It is enough that the process was willfully abused to accomplish some unlawful purpose. Cooley on Torts (2d ed.), 220.

In malicious abuse of process, process which in itself may have been lawful has been perverted to a purpose not contemplated by it. All that is required for the cause of action is proof that the process has been applied to a purpose not named or implied by it to the damage of the plaintiff. Perversion or abuse of the process gives the name "malicious" to the cause. The malice is fictitious or may be such. Bigelow, § 320.

This author adds that it is not necessary for the plaintiff to maintain this action to await the determination of the original proceeding, or to prove that there was no probable cause for the issuance of the particular process.

Malicious abuse of process is distinguished from malicious prosecution in at least two respects. First, in that want of probable cause is not an essential element (Hazard v. Harding, 63 How. Pr. 326), and, second, that it is not essential that the original proceeding shall have terminated (Zinn v. Rice, 154 Mass. 1). It differs from false imprisonment in that, among other things, a warrant valid on its face is no defense. Hale, 361.

An action lies for malicious abuse of process even if the process were properly issued, is valid in form, and the proceeding was justified and proper in its inception, but injury arises in consequence of the abuse in subsequent proceedings. Hale, 361.

In Webb's Pollock on Torts, note, p. 399. the American editor cites very fully from Wood v. Graves, 144 Mass. 366, as to abuse of process, saying that the opinion very concisely and clearly