intended to repeal the common law rule by implication. Such repeal by implication cannot be understood to exist, where a. non-resident is sued, whether he be sued alone as in the case of Bierne v. Rosser & Turner, 26 Gratt. 541, or whether he be sued with another defendant, who is a resident of the State. In either case the common law rule not having been repealed expressly or by reasonable implication must still be regarded as in full force, and the defendants in a transitory action, such as this, are liable to suit in any county, in which they may be found and served with process. See also on this subject Raine v. Rice, 2 Pat. & H. 529; Middleton v. Pinnell, 2 Gratt. 202.

The circuit court therefore did not err in sustaining the demurrer to the pleas in abatement; and we must therefore consider the case on its merits.

To warrant any verdict of the jury or judgment of the court in favor of the plaintiff against the two defendants jointly in such a suit as this for a malicious prosecution against them, such as was rendered in the case, it must have been proved on the part of the plaintiff according to the decision in Scott & Boyd v. Shelor, 28 Grat. 899, in the words of Judge Burks slightly modified: "First, That the prosecution alleged in the declaration had been set on foot and conducted to its termination, and that it had ended in the final discharge of the plaintiff by the justice; Second, That it was instigated and procured by the co-operation of the defendants; Third, That it was without probable cause; Fourth, That it was malicious.”

I will now consider the true legal meaning of these several requirements, and what evidence is necessary to establish each of these requisites, and then determine, whether such necessary evidence has been furnished in this case.

First, What is meant by saying, that the prosecution must have been set on foot and have been terminated? By a prosecution being set on foot is meant, that the plaintiff must have been arrested under a process not absolutely void. For if the process be absolutely void, no prosecution ever legally existed, and no suit for a malicious prosecution could be brought, but the the plaintiff's remedy would be by an action of trespassor case under our law. Allen v. Greenlee, 2 Devereaux 370; Cockfield v. Braveboy, 2 McMullan 270-273. But this action for malicious prosecution may be maintained, though the warrant or indict

ment was legally defective, and the person never could have been convicted. Jones v. Gwynn, 10 Mod. 214-220. By saying that the prosecution must have terminated is meant, not that the plaintiff had been finally acquitted of the crime charged, unless the declaration had so alleged, but that the particular prosecution named in the declaration had finally terminated in the manner alleged in the declaration. The declaration to be good must allege the termination of the particular prosecution, but such termination need not be by a verdict of a jury and a judgment thereon, but may be, as in the case before us, a discharge by a justice, before whom the charge is prosecuted. On this point Chilton, J., in Long v. Rogers, 17 Ala. 546, says:

"But it is insisted, that the declaration is defective in not showing, that the prosecution is ended, and that the averment of the plaintiff's discharge before the magistrate is insufficient to warrant this action. It is certainly necessary for the declaration to show, that the prosecution is ended, (1 Chit. Pl. 679, Id. 123), and if it merely show, that the prosecutor caused the plaintiff to be released and set at liberty, and the said prosecutor wholly abandoned said prosecution, this is not sufficient, as was held in Ragsdale v. Bowles, 16 Ala. 62. It does not show, that the case or prosecution was ended, for the court or justice, before whom it was pending, might notwithstanding the prosecutor's unwillingness proceed upon the case, if he deemed the public interest required it. But such is not the case before us. Here the declaration avers a prosecution before a justice, an examination before him of the alleged cause of camplaint, and the magistrate in the exercise of a rightful jurisdiction discharged the party. This ends that prosecution. The party, if improperly discharged, may be held to answer an indictment for the same offence, but this is a matter the defendant should avail himself of, and it is not incumbent on the plaintiff to aver, that no indictment was ever found upon the charge, or proceeding had thereon in any other court. We think a discharge by a justice of the peace upon an examination of the alleged causes of the plaintiff's arrest is altogether sufficient. Nothing further can be done with that prosecution. The party being discharged by the justice puts, as the books call it, an end to the prosecution.

This view is fully sustained by a very well considered case in the Supreme Court of New York, in which Cowen, Judge, says "the technical prerequisite is only, that the particular prosecution be disposed of in such a manner, that it cannot be revived, and the prosecutor must be put to a new one. Clark v. Cleveland, 6 Hill 344-7. The cases in the brief of the defendants' counsel sufficiently show, that this averment is sufficient. Besides there are several cases in our own court, where actions of the kind have been maintained, but the specific objection does not appear to have been directly presented. In Collins v. Fowler, 10 Ala. (N. S.) 858, a demurrer was interposed, but the court merely say, the points were not pressed at the bar, and required no consideration."

The second thing necessary to prove in such a case as the one before us is, " that the prosecution was instigated and procured by the co-operation of the defendants." By instigated and procured is meant instigation and procurement in the ordinary meaning of this language. It would not be necessary to show, that the defendants themselves either jointly or severally applied to the justice to issue the warrant. If they instigated and procured it to be done by another, they would be bound jointly, as much as if they had made a joint application to the justice to issue the warrant. Thus in Scott & Boyd v. Shelor, 28 Gratt. 891, the complaint was made by one Smith, and all his information was based on a letter written to him by one of the defendants, Scott; and Boyd, the other defendant, is only shown to have co-operated with him in procuring the prosecution of the plaintiff by his having told witnesses, that he, Boyd, would not have set the prosecution on foot, if the plaintiff had not abused the family of his father-in-law, Scott. The jury found a verdict against the defendants jointly, and the Court of Appeals refused to set it aside, saying they found no fault with the verdict.

We will now consider the fourth requisite for the plaintiff to prove in any suit for a malicious prosecution before considering the third of these requisites, as this order of considering them is in my judgment the manner, in which they can be best comprehended.

This fourth requisite is, that the plaintiff must prove, that the prosecution was malicious. The term malice as here used

does not necessarily mean, that which proceeds from a spiteful, malignant or revengeful spirit, but simply an improper spirit or purpose, which induces the performance of an act injurious to another without any just cause. It means however, that the spirit or motive, which operated on the defendant in stirring up the prosecution, was improper. And though the prosecution may have been instituted without justifiable or even probable cause, it does not necessarily follow, that it was instituted maliciously, that is, with a motive or object, which was not proper; for even where there is an absence of probable cause, the defendant may nevertheless prove, that the prosecution was set on foot by him from proper public motives only; and if he does so, this establishes the want of malice, though the absence of probable cause would justify the jury in inferring malice, if the circumstances of the case or the direct evidence did not satisfy the jury, that there was a want of malice, and that the prosecution was instituted only for proper public ends. In Kerr v. Workman, Addison (Pa.) 270, the court says:

"That in an action for malicious prosecution express malice is necessary to support it; but I apprehend the word malice has a technical meaning and is not to be considered as in common conversation or in a classical sense. Any prosecution carried on knowingly, wilfully and wantonly or obstinately for no purpose or end of justice, but merely to the vexation of the person prosecuted, I conceive to be malicious." See also Cecil v. Clarke et al., 17 Md. 523, 524.

The court in Scott & Boyd v. Shelor, 28 Gratt. 909, says: "In a legal sense any unlawful act, which is done wilfully and purposely to the injury of another, is as against that person malicious. 1 Hilliard on Torts, ch. 16, § 24. The improper motive or want of proper motive inferrible from a wrongful act based on no reasonable grounds constitutes of itself all the malice deemed essential in law to the maintenance of the action of malicious prosecution. Spengler v. Davy, 15 Gratt. 381."

Tindal, Chief Justice, in Stockley v. Hornidge, 8 Carr. & Payne 11, 18, says: "It is not necessary to prove malice in the ordinary sense of the word. Any improper or sinister motive will be sufficient."

Burt, Chief Justice, in Jones v. Nicholls, 3 M. & P. 12, says: "Malice may be inferred; malice in law means an act done wrongfully and without reasonable and probable cause, and not as in common parlance an act dictated by angry feelings or vindictive motive." And in Page v. Cushing, 38 Me. 526, the court says: "Malice has a meaning different from its popular signification. Acts wilfully and designedly done, which are unlawful, are malicious in respect to those, to whom they are injurious. * * * * An act may be malicious in a legal sense, which is not prompted or characterized by malevolence or corrupt design."

Malice then may be defined as some motive other than a desire to have punished a person believed by the prosecutor to be guilty of the crime charged. It is a sinister or improper motive and may be malignity or a desire by means of the prosecution to get possession of the goods alleged to be stolen or any other improper motive. As therefore malice consists in some improper motive or the absence of a proper motive, it is obviously in all cases a question of fact for the jury; and though there be no express evidence of malice, the jury can infer it from a want of probable cause alone. Still this is an inference of fact and not of law, and it must therefore be drawn by the jury and can never be drawn by the court; and being an inference of fact merely, it is of course not necessarily to be drawn and is liable to be rebutted. See Parrot v. Fishwick, 9 East. 362 (note); Musgrove v. Newell, 1 Mee. & W. 582, 587; Munns v. Dupont et al., 3 Wash. C. C. 32, 37 (Am. Lead. Cas. 5th ed., p. 274); Pangburn v. Bull, 1 Wend. 345; Savage v. Brewer, 16 Pick. 453; Ulmer v. Leland, 1 Greenl. 135, 137; Turner v. Walker, 3 Gill & Johns. 378; Holburn v. Neal, 4 Dana 120; Holliday v. Sterling et al., 62 Mo. 321; Cecil v. Clarke et al., 17 Md. 523.

But though want of probable cause is a ground, on which a jury is authorized to presume malice in the defendant, yet this may be rebutted by his proving to the satisfaction of the jury, that he was actuated by an honest motive and acted only from a mistaken sense of his public duty. See Bell v. Pearcy, 5 Ired. L. 83-85; Hall v. Hawkins, 5 Humph. 357-359; Fitzjohn v. Mackinder, 99 E. C. L. 504.

The remaining requisite for the plaintiff to prove in every