without probable cause is indispensable, and its omission fatal: Lohrfink v. Still, 10 Md. 530. The want of probable cause being the primary question in such actions: Grant v. Moore, 29 Cal. 644. For, though malicious, the defendant is not liable unless there be a want of probable cause: Payson v. Caswell, 9 Shepley, 212; Wood v. Weir, 5 B. Monr. 544; Leidig v. Rawson, 1 Scam. 272. The necessity of the concurrence of all three of the above elements, i. e., want of probable cause, malice in fact, and actual determination in favor of the plaintiff, is maintained in Vanderbilt v. Mathis, 5 Duer, 304; see, also, as to pleading, 8 N. H. 157; 6 Watts & Serg. 336; 5 Blackf. 428; 3 Monr. 208; see, also, Richardson v. Virtue, 2 Hun, 208. 9. Facts only must be Alleged.--In an action for malicious prosecution, only the substantial matter constituting the action, that is, facts, and not the evidence of facts, need be set out: Dreux v. Domec, 18 Cal. 83. The point of inquiry in such an action is whether there was in fact probable cause for the prosecution, and not whether the defendant had probable cause to believe there was: Ilickman v. Griffin, 6 Mo. 37. 10. Gist of Action.— The action lies against several defendants, and the gist of the action is the malicious prosecution: Dreux v. Domec, 18 Cal. 83. 11. Indebtedness. The averment of no indebtedness may be omitted, and a suit maintained for maliciously suing out an attachment: Tomlinson v. Warner, 9 Ohio, 103. 12. Joint Agency, Allegation of.-In suit against three defendants for malicious prosecution, the complaint averred that "defendants, contriving and maliciously intending to injure the plaintiff," etc., falsely, maliciously, and without probable cause, procured him to be indicted for murder: Held, that the complaint sufficiently avers a joint agency on the part of defendants in instituting the prosecution: Dreux v. Domec, 18 Cal. 83. 13. Malice.-Malice and falsehood are essential ingredients in an action for malicious prosecution: Plalt v. Niles, 1 Adm. 230. Malice, as well as want of probable cause, is necessary to sustain an action for malicious prosecution: Riney v. Vanlandingham, 9 Mo. 807; Frissell v. Relfe, Id. 849. Malice, in its legal sense, means a wrongful act, done intentionally, without just cause or excuse: Maynard v. Fi. Fund Ins. Co., 34 Cal. 48. Malice cannot be presumed in a prosecution where the defendant has incurred all the moral guilt of the charge, although he may have evaded the penalty of the law: Sears v. Hathaway, 12 Cal. 277. Malice, like fraud, is to be inferred from facts and circumstances: Lyon v. Hancock, 35 Cal. 376. A petition which omits to state that the prosecution was malicious, and that the plaintiff was acquitted, is insufficient: Mooney v. Kennett, 19 Mo. 551. Public policy and security require that prosecutors should be protected by the law from the civil liabilities, except in those cases where the two elements of malice in the prosecutor and want of probable cause for the prosecution both occur: Potter v. Seale, 8 Cal. 217. If one person arrests another for the commission of a crime, under the belief that the person arrested has committed the crime, the person making the arrest cannot be said to act maliciously, although he may act unlawfully: Lyon v. Hancock, 35 Cal. 372. 14. Motive. In an action for malicious prosecution, the complaint may aver matter tending to show the defendant's motive-e. g., a malicious pub lication by him procured to be made concerning the prosecutor-such as would be proper to prove at the trial as showing special injury. Such averments should not be stricken out on motion, as the plaintiff cannot be deemed aggrieved by them: Brockleman v. Brandt, 10 Abb. Pr. 141. 15. Probable Cause.-Probable cause may be defined as a suspicion, founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true: Potter v. Seale, 8 Cal. 217; Hall v. Harokins, 5 Humph. 357; Faris v. Starke, 3 B. Monr. 4; 9 Shepley, 212; 11 Id. 566; 4 Dana, 120. It is a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged: Ross v. Innis, 35 Ill. 487. The question of probable cause does not depend upon whether an offense has been committed, nor upon the guilt or innocence of the accused, but upon the prosecutor's belief of the truth of the charge made by him. If circumstances are shown sufficient to warrant a cautious man in the belief of the truth of the charge he makes, it is enough: Scanlan v. Cowley, 2 Hilt. 489; see, also, Foote v. Milbier, 46 How. Pr. 38; Farnham v. Feeley, 56 N. Y. 451; Carl v. Ayers, 53 N. Y. 14. And from the want of probable cause, malice may be inferred: Grant v. Moore, 29 Cal. 644; and is a mixed question of law and fact: Id. It is a question for the court, but the jury must decide upon the facts: Brant v. Higgins, 10 Mo. 728. 16. Probable Cause, when it Exists.-If the defendant had a cause of action in the case alleged, although for a much less amount than claimed, there was probable cause, and the court should grant a nonsuit: Grant v. Moore, 29 Cal. 644. So, a judgment against the plaintiff after trial on the merits, is sufficient evidence of probable cause, though subsequently reversed-not however conclusive, if impeached for fraud: Palmer v. Avery, 41 Barb. 290. Where two actions have been abandoned, by the plaintiff's failure to appear at the adjourned day, and a new action has been commenced before another justice for the same demand, which is still pending, the litigation is not terminated, and want of probable cause cannot be inferred solely from the discontinuance of the former suits: Id. A committal to await the action of the grand jury is not conclusive evidence of probable cause: Haupt v. Pohlman, 16 Abb. Pr. 301. 17. Privileged Charges.-As to the remedy by action for malicious prosecution, for false and malicious charges preferred in legal proceedings and deemed privileged from an action for defamation, see Perkins v. Mitchell, 31 Barb. 461. 18. Special Damages.—Expenses of counsel, made necessary by a malicious prosecution, are to be specially alleged: Strang v. Whitehead, 12 Wend. 64. 19. Vigilance Committee. For a complaint in an action against a vigilance committee, see Moloney v. Dows, 2 Hilt. 247. 20. What must be Shown.-To sustain an action for malicious prosecution, the plaintiff must show affirmatively that the prosecution was malicious, and without probable cause, both concurring: Cook v. Walker, 30 Ga. 519. 21. When Action will Lie.-An action for a malicious prosecution will lie where an affidavit for a search warrant is made before a justice, maliciously, and without probable cause, although the magistrate refuse to issue the warrant: Miller v. Brown, 3 Mo. 127. 22. When Action will not Lie.-Such an action does not lie where the alleged malicious suit was founded on a just claim, although such claim was smaller than that for which the suit was brought, when it does not appear that property was attached to a greater value than the amount of such claim: Grant v. Moore, 29 Cal. 644. Peace of said county [or the Police Judge of said city], and charged the plaintiff, before said justice, with having [feloniously stolen a certain ... .. of the defendant]; and procured said justice to grant a warrant for the arrest of the plaintiff upon said charge. II. That in so doing the defendant acted maliciously and without probable cause. III. That the said justice issued said warrant accordingly, and the plaintiff was arrested and imprisoned under the same for ........ [days or hours, and gave bail in the sum of dollars to obtain his release]. . . . . . . . IV. That on the ....day of.... 187., the plaintiff was examined before the said justice for the said supposed crime, and the said justice adjudged him not guilty, and fully acquitted him of the same; and that since that time the defendant has not further prosecuted said complaint, but has abandoned the same. V. That the said charge and the arrest of the plaintiff thereunder were extensively published in several public newspapers, among others the as the plaintiff believes, through the procurement of the defendant. VI. That by means of the premises the plaintiff was injured in his person, and prevented from attending to his business, and paid dollars costs, counsel fees ... in obtaining bail; in defending himself, and ... .; and and he lost his situation as servant of many persons, whose names are unknown to the plaintiff, hearing of the said arrest, refused to employ him, and whereby also he has been injured in his good name and reputation, to his damage .. dollars. [Demand of Judgment.] No. 351. [TITLE.] iii. For Procuring Plaintiff to be Indicted. The plaintiff complains, and alleges: 187., at the defendant caused and procured the said plaintiff to be indicted by the grand jury, then and there impaneled and sworn by the court, in and for the county of to inquire of crimes within and for the said county, and prosecuted and caused to be prosecuted the said indictment against the said plaintiff. II. That in so doing, the defendant acted maliciously and without probable cause. III. That afterwards, to wit, at the...... .term of the said. . . . . .court, begun and held on the..... day of..... 187., at the court house in....., in the said county of.. of...., the said plaintiff was in due manner and by due course of law acquitted of the said premises in the said indictment charged upon him, by a jury of the said county of .... ; whereupon it was then and there adjudged by the said court that the said plaintiff go hence thereof without day, and the said plaintiff was then and there discharged of and from the premises in said indictment specified, as by the record and proceeding thereof remaining in said court appears. IV. [State special damages.] [Demand of Judgment.] 23. For Procuring Plaintiff to be Indicted.-For the law on this subject, see 1 Saund. 228; 9 East, 361; 1 T. R. 493; Anderson v. Buchanan, Wright, 725; Morris v. Scott, 21 Wend. 281; Williams v. Hunter, 3 Hawks, 545; Dennis v. Ryan, 63 Barb. 145. No. 352. iv. The Same For Obtaining Indictment on which a Nolle Prosequi was Afterwards Entered. [TITLE.] The plaintiff complains, and alleges: 187., at..... I. That on the. . . . . . . day of...... the defendant procured C. D., then the District Attorney in and for the county of....... ., in this State, to issue subpenas for the purpose of compelling and procuring the attendance of witnesses, among others, one A. B., at the ...court, held on the day last mentioned at... in said county, before the grand jury and persons serving as grand jurors at such term of the........ court, for the purpose of procuring an indictment to be found against the plaintiff, as hereinafter more fully stated. II. That in so doing the defendant acted maliciously and without probable cause, and intended thereby to injure the plaintiff in his good name and credit, and to bring him into public disgrace, and to cause him to be imprisoned, and to impoverish and injure him. III. That the defendant, at said term of the. . . . . . court, complained of the plaintiff before the grand jury, and falsely, and maliciously, and without any reasonable or probable cause whatsoever, charged the plaintiff to the grand jury with having [state charge preferred]. IV. That said charge was and is wholly false and untrue, which the defendant then and at all times since well knew. V. That defendant falsely and maliciously, and without probable cause, procured the grand jury aforesaid to find and present to the said........ court an indictment against the plaintiff for said alleged [state pretended charge]. VI. That the defendant falsely and maliciously, and without probable cause, procured a bench warrant, directed to the sheriff or any constable of the said county of for the arrest of the plaintiff upon the aforesaid indictment, to answer the charges therein made against him as aforesaid, to be issued by the........court of said county of........; and afterwards, on or about the...... day of 187., caused the plaintiff to be arrested and to be kept in custody, restrained of his liberty for the space of......months, and to give bail in the sum of..... dollars to obtain his release. ....." VII. That the plaintiff did appear at the said term of said Court, ready and willing to then and there stand trial upon the aforesaid indictment against him, pursuant to and as required by said bond. Whereupon the aforesaid District Attorney, after consulting and advising with the defendant, and at his request, and by his instructions, did then and there move the said Court that the plaintiff be discharged out of custody, and be fully discharged and acquitted of the said indictment and of the supposed offense therein charged against him, and be no |