Ruling Case Law: As Developed and Established by the Decisions and ...

no application in cases where the civil action has deprived the plaintiff of his personal liberty, taken away his property, or injured his business. But a person in possession of chattels without title cannot. maintain an action for damages for malicious prosecution against one who wrongfully institutes a replevin action against him for them. In the first case the plaintiff has been deprived of property to which he was lawfully entitled. In the second his only injury is found in the defense of the suit.10 So where the other requirements for bringing the action were present, recovery has been allowed where the plaintiff's property has been held up by garnishment; 11 where a summary process was instituted to dispossess a tenant, who was compelled to give bond to retain possession; 12 where proceedings were brought against a party ostensibly for the purpose of winding up a partnership, by reason of which he was kept out of possession of the property and suffered loss to his business; 13 where the action brought was an extraordinary proceeding in forcible entry and detainer; 14 where the plaintiff has had to defend himself in insanity proceedings instituted against him; 15 for the malicious institution of bankruptcy proceedings; 16 where he has been arrested and held to bail in civil process,17 and where he has been subjected to proceedings under a search warrant.18 According to the weight of authority procuring an injunction maliciously, and without probable cause, is also sufficient ground for an action for malicious prosecution, 19 though there are decisions to the effect that no action for malicious prosecution

9. Clements v. Odorless Excavating Apparatus Co., 67 Md. 461, 605, 10 Atl. 442, 13 Atl. 632, 1 A. S. R. 409; Gore v. Condon, 87 Md. 368, 39 Atl. 1042, 67 A. S. R. 352, 40 L.R.A. 382; Powers v. Houghton, 159 Mich. 372, 123 N. W. 1108, 18 Ann. Cas. 811 and note, 28 L.R.A. (N.S.) 330 and note.

Note: 13 L.R.A. 59.

10. Powers v. Houghton, 159 Mich. 372, 123 N. W. 1108, 18 Ann. Cas. 811, 28 L.R.A. (N.S.) 330 and note.

11. O'Neill v. Johnson, 53 Minn. 439, 55 N. W. 601, 39 A. S. R. 615.

v. Sides, 57 Ind. 360, 26 Am. Rep. 58.

16. T. E. Hill Co. v. Contractors' Supply, etc., Co., 249 Ill. 304, 94 N. E. 544, 34 L.R.A.(N.S.) 456 and note; Harvey v. Gartner, 136 La. 411, 67 So. 197, Ann. Cas. 1916D 900 and note; Gore v. Condon, 87 Md. 368, 39 Atl. 1042, 67 A. S. R. 352, 40 L.R.A. 382. Note: 16 Eng. Rul. Cas. 755. 17. Cardival v. Smith, 109 Mass. 158, 12 Am. Rep. 682.

Note: 14 Am. Dec. 600.

18. Boeger v. Langenberg, 97 Mo.

12. Slater v. Kimbro, 91 Ga. 217, 18 390, 11 S. W. 223, 10 A. S. R. 322;

S. E. 296, 44 A. S. R. 19.

13. Luby v. Bennett, 111 Wis. 613, 87 N. W. 804, 87 A. S. R. 897, 56 L.R.A. 261.

14. Pope v. Pollack, 46 Ohio St. 367, 21 N. E. 356, 15 A. S. R. 608, 4 L.R.A. 255.

15. Kellogg v. Cochran, 87 Cal. 192, 25 Pac. 677, 12 L.R.A. 104; Lockenour

Spangler v. Booze, 103 Va. 276, 49
S. E. 42, 1 Ann. Cas. 995 and note.
Note: 34 A. S. R. 672.

19. Rieger v. Knight, 128 Md. 189, 97 Atl. 358, L.R.A.1916E 1277; Mark v. Hyatt, 135 N. Y. 306, 31 N. E. 1099, 18 L.R.A. 275 and note; Powell v. Woodbury, 85 Vt. 504, 83 Atl. 541, Ann. Cas. 1914D 606 and note. Note: 14 Am. Dec. 601.

will lie, and that the injured party's only remedy is on the injunction bond.20 So it has been held in numerous cases that the malicious levy of an attachment without probable cause entitles a party to maintain this action,1 and the fact that an attachment bond has been given will not defeat such right. While decisions holding that there must be malice and want of probable cause to allow an action for wrongful attachment other than upon the attachment bond 3 have been declared to represent the minority of authority, if the wrongful attachment is relied upon as a ground for an action for malicious prosecution, these requirements must certainly be met.5

5. Unfounded Defense in Civil Suit.-Some of the authorities in arguing against the right of action for malicious prosecution of a civil suit in the absence of seizure of property, arrest of the person, or other special circumstances, urge that the same reasoning which is used to prove that the defendant ought to have damages upon a false claim would also prove that the plaintiff ought to have damages upon a false plea, since he is put to all the expense of a trial upon such plea, and yet can recover nothing therefor but his lawful costs." It has been held, however, in the few cases in which the precise point. has been presented for adjudication that in a civil action in which the defendant answers by a general denial and verifies his answer, but asks no affirmative relief, and judgment is finally rendered against him in the action, he is not responsible in another action for damages for expenses incurred in obtaining proof to sustain the allegations of the petition, although he knew at the time he answered that the allegations were true, and that his verified denial would involve the plaintiff in considerable expense to establish the truth thereof.8

20. Gorton v. Brown, 27 Ill. 489, 81 Am. Dec. 245 and note. And see INJUNCTIONS, vol. 14, p. 481 et seq.

1. Donnell v. Jones, 13 Ala, 490, 48 Am. Dec. 59; Vesper v. Crane Co., 165 Cal. 36, 130 Pac. 876, L.R.A.1915A 541; Lawrence v. Hagerman, 56 Ill. 68, 8 Am. Rep. 674; Spaids v. Barrett, 57 Ill. 289, 11 Am. Rep. 10; Brand v. Hinchman, 68 Mich. 590, 36 N. W. 664, 13 A. S. R. 362; McCormick Harvesting Machine Co, v. Willan, 63 Neb. 391, 88 N. W. 497, 93 A. S. R. 449 and note, 56 L.R.A. 338; Williams v. Hunter, 10 N. C. 545, 14 Am. Dec. 597; Wheless v. Second Nat. Bank, 1 Baxt. (Tenn.) 469, 25 Am. Rep. 783; Abbott v. Kimball, 19 Vt. 551, 47 Am. Dec. 708; Ailstock v. Moore Lime Co., 104 Va. 565, 52 S. E. 213, 113 A. S. R. 1060, 7 Ann. Cas. 545, 2 L.R.A.

(N.S.) 1100. And see ATTACHMENT, vol. 2, p. 897.

2. Lawrence v. Hagerman, 56 Ill. 68, 8 Am. Rep. 674; Spaids v. Barrett, 57 Ill. 289, 11 Am. Rep. 10.

Note: 93 A. S. R. 463.

3. Vesper v. Crane Co., 165 Cal. 36, 130 Pac. 876, L.R.A.1915A 541; Williams v. Hunter, 10 N. C. 545, 14 Am. Dec. 597,

4. Note: L.R.A.1915A 541.

5. See ATTACHMENT, vol. 2, pp. 897, 900, 908.

6. See supra, par. 3.

7. Potts v. Imlay, 4 N. J. L. 330, 7 Am. Dec. 603.

Note: 34 L.R.A. (N.S.) 1026, 1027.

8. Baxter v. Brown, 83 Kan. 302, 111 Pac. 430, 34 L.R.A. (N.S.) 1026 and note.

6. Malicious Prosecution as a Crime.-In a few states, malicious prosecution has been made a crime by statute. The object of such statutory provision is to punish a person who, without probable cause, actuated by malice, not in good faith, institutes a criminal prosecution against another for the purpose and with the intention to vex, harass, and injure such other person. It is intended to prevent groundless prosecutions, and not such as there is legal evidence to justify a reasonable belief that the person prosecuted is guilty of the crime charged. In a prosecution for this offense it has been held that it is immaterial whether or not the alleged malicious prosecution has terminated at the time of the filing of the indictment or information, for the reason for the rule in a civil suit does not exist in the criminal case. But although not expressly required by the statute, it has been decided that malice and want of probable cause must be shown, as any other construction would operate against public policy in deterring citizens from commendable efforts to bring criminals to justice.

II. ESSENTIALS TO MAINTENANCE OF ACTION

Institution of Original Proceedings by Defendant

7. In General. To maintain an action for malicious prosecution the plaintiff must show that the defendant therein was responsible for the institution or continuance of the original proceedings complained of.10 Where the defendant did not institute any action against the plaintiff, or cause one to be maintained, he cannot be held in an action for malicious prosecution for giving of false and perjured testimony against the plaintiff.11 Where he states the bare facts as to the conduct of a third person, to a judicial officer, and the latter erroneously deems a crime to have been committed, and directs the third person's arrest, the informer is not liable to the person arrested, as for malicious prosecution. It is the officer's error rather than the defendant's acts which are the cause of the plaintiff's injury.12 On the same principle, a prosecutor is not liable for an indictment

9. Dempsey v. State, 27 Tex. App. 269, 11 S. W. 372, 11 A. S. R. 193. 10. Russell v. Chamberlain, 12 Idaho 299, 85 Pac. 926, 9 Ann. Cas. 1173; Johnson v. Miller, 82 Ia. 693, 47 N. W. 903, 48 N. W. 1081, 31 A. S. R. 514; McClarty v. Bickel, 155 Ky. 254, 159 S. W. 783. 50 L.R.A. (N.S.) 392; Grant v. Deuel, 3 Rob. (La.) 17, 38 Am. Dec. 228; Stephens v. Conley, 48 Mont. 352, 138 Pac. 189, Ann. Cas. 1915D 958; Chicago, etc., R. Co. v. Holliday, 30 Okla. 680, 120 Pac. 927, 39 L.R.A. (N.S.) 205; Mowry v. Miller, 3 Leigh R. C. L. Vol. XVIII.-2.

(Va.) 561, 24 Am. Dec. 680; McIntosh v. Wales, 21 Wyo. 397, 134 Pac. 274, Ann. Cas. 1916Ċ 273.

Note: 26 A. S. R. 133.

11. McClarty v. Bickel, 155 Ky. 254, 159 S. W. 783, 50 L.R.A.(N.S.) 392; Dunlap v. Glidden, 31 Me. 435, 52 Am. Dee. 625; Parker v. Huntington, 7 Gray (Mass.) 36, 66 Am. Dec. 455.

12. Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 A. S. R. 79.

Notes: 26 A. S. R. 129; 36 L.R.A. (N.S.) 231.

brought in by the grand jury, if that body found it in disregard of his evidence; as would be the case were they to find an indictment for one offense when the prosecutor's evidence before them was to the commission of another.13 So it has been held that a person who has caused a search warrant to be issued and who has made the affidavit for its issuance cannot be held liable as for malicious prosecution, where the evidence shows that the officers, instead of executing the warrant, wrongfully arrested the person whose premises they were directed to search, without entering the premises or attempting to make any search, and there is no evidence connecting in any way the person who caused the warrant to be issued with the unauthorized act of the arresting officers.14 That the defendant at the request of a plaintiff in an action signed the usual undertaking required in arrest and bail does not sufficiently connect him with the proceedings to render him liable.15 Nor has a defendant caused a prosecution when he acts only in subordination to the prosecuting attorney and under the latter's direction. The defendant's malice in such a case is immaterial.16 But the defendant is sufficiently connected with the prosecution by an application for a search warrant, on the ground that goods have been stolen, and are concealed on a person's premises, 17 and the same result follows if the indictment against the plaintiff was preferred at the defendant's instance, whether the latter appears of record to be the prosecutor or not.18 The defendant is sufficiently a prosecutor to sustain an action against him for malicious prosecution if the prosecution to which the plaintiff was subjected was instituted at the defendant's instance and request by the attorney for the state.19 It is not necessary in an action against several defendants for malicious prosecution to allege that all of the defendants combined in instituting the proceedings complained of, as persons who voluntarily participate in a prosecution after it is instituted are equally liable with those who procured and instituted it.20

8. Proof of Defendant's Connection with Proceedings.-No particular method of proof is necessary to connect the defendant with the prosecution alleged to have been instituted by him. Thus it has been held that to show that the defendant instigated the prosecution, it may be proved that he employed counsel therefor, or gave instructions, or paid expenses, or procured witnesses, or stated that he had

13. Leidiz v. Rawson, 1 Seam. (Ill.) Am. Dec. 693. 272, 29 Am. Dec. 354.

18. Kline v. Shuler, 30 N. C. 484,

14. Ton v. Stetson, 43 Wash. 471, 49 Am. Dec. 402. 86 Pac. 668, 10 Ann. Cas. 369.

19. Grant v. Deuel, 3 Rob. (La.)

15. Sneeden v. Harris, 109 N. C. 17, 38 Am. Dec. 228. 349, 13 S. E. 920, 14 L.R.A. 389.

16. Yocum v. Polly, 1 B. Mon. (Ky.) 358, 36 Am. Dec. 583,

17. Miller v. Brown, 3 Mo. 127, 23

20. Russell v. Chamberlain, 12 Idaho 299, 85 Pae. 926, 9 Ann. Cas. 1173 and note.

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