Malicious prosecution falls into this exceptional class. The public policy requiring this is easily found. Society cannot be protected without courts, which are the great conservative agencies in and through which the disputes and controversies of men are adjusted. It is essential that these tribunals shall be open to all persons who, in good faith, believe they have grievances against their neighbors, or who in good faith believe that the criminal law has been violated. To adopt a policy which would make every unsuccessful plaintiff in a civil case, or every witness for the state in a criminal case, liable in damages to the defendant therein, whenever the plaintiff in the case failed to obtain judgment, would make litigation so hazardous that men would fear to resort to it.

On the other hand, to adopt a rule to the effect that liability should never attach to the wrongful bringing of a suit, no matter how outrageous and unjust its institution may have been, would be to make the courts instruments of oppression, and means of gratifying spite and hatred, without any individual responsibility.

The law has, therefore, taken hold of the matter, and established certain rules by which to fix liability for the improper institution and maintenance of actions in the courts. Among these is a rule that no such proceeding shall subject the person instituting it to liability for damages, unless he was actuated by malice. Malicious intent is not the only essential to liability, but it is so important an element of this tort that it has been incorporated in its

name. And a suit leading to liability for damage is known as a malicious prosecution.1

2. Definition.-A malicious prosecution is a judicial proceeding, instituted without probable cause and with malice, which seriously jeopardizes or actually violates the personal liberty of the defendant therein, or which invades his rights to use, possess or enjoy his property, and which terminates favorably to the defendant.

The basic idea is the putting in operation the machinery of the law against an innocent person maliciously and without probable cause for so doing. The elements of the tort are:

1. The institution and maintenance 2. Of a judicial proceeding

3. Without probable cause,

4. With malice,

5. Actual interference with the rights of the defendant in the proceeding,

6. Termination of the suit in favor of defendant, 7. Directly resulting damage.2

3. The institution and maintenance of the proceeding. The proceeding may be either civil or criminal. In civil cases the institution of the suit is the act of the plaintiff. He and all persons actuated by his evil motive, and knowing the unfounded nature of the suit, who coöperate with him or aid or abet him in its institution are responsible.3

1 Ball v. Rawles, 93 Cal. 222, 28 Pac. 937.

2 Wheeler v. Nesbitt, 24 How. 544 (N.S.), 16 L. Ed. 765; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116.

"Actions for malicious prosecution are brought more commonly for wrongful criminal prosecutions. For civil suits instituted of malice and

In criminal cases a private individual can rarely actually institute the suit, as such proceedings must in almost all instances be begun by some proper legal officer. Those persons who actually bring about the prosecution wrongfully are regarded as having instituted the prosecution. Frequently nice questions arise as to who is the direct cause of the prosecution, the complaining witness or the officer of the law. No general rule can be announced, but each case must be determined by its particular facts. If a witness voluntarily makes a complaint, written or oral, as the case may be, to the law officer, intending and desiring thereby to induce the prosecution, he is ordinarily regarded as responsible for the action. His responsibility, however, goes no further than his conduct, justly interpreted, warrants. If he makes a full and fair statement of all the facts

* #

without probable cause the American law however gives a right of action, while the tendency of the English courts has gradually been against giving redress. It is there given however in cases of action involving charges of scandal to reputation or the possible loss of liberty, such as proceedings in bankruptcy against a trader, or in petitions to wind up a company. Legislation in England has been passed entitling the successful party in a civil cause to costs; the effect of which, after much fluctuation of opinion, is finally held to be that all right of action for a false and malicious civil suit, not importing defamation, is taken away. The right to costs is deemed to satisfy any damage the successful party may have sustained.

In this country the law is in a state of confusion. Some of our courts hold, with the courts of England, that the right of costs takes the place of any right of action for the suit; others hold the contrary, but on varying grounds. These latter authorities take the position that costs can seldom make good the loss sustained in defending an unfounded suit; but they do not agree as to what the supposed loss as a ground of action consists. It is sometimes said that it may consist in the expense, in one form or another, to which the plaintiff was put; sometimes it is found in the arrest of the party or in the attachment of his property, where such a thing took place.” -Bigelow, Torts (8th ed.), pp. 205, 224.

known to him, and, according to some authorities, of those which he might have ascertained by reasonable diligence as well, and the officer erroneously concludes that these facts constitute a violation of the law and bases a prosecution thereon, the witness will not be responsible for the legal mistake of the officer. If, however, the witness makes false statements to the officer, and the officer's legal conclusions thereupon are correct, the witness will be regarded as the party instituting the suit.

If a witness maliciously makes a false statement to an officer, intending thereby to induce the officer to prefer a criminal charge against a person, and the officer, induced by such statement, institutes the prosecution in a court of general criminal jurisdiction, the witness cannot escape liability by showing that the court held that the facts did not constitute an offense.1

On the other hand, if a witness is subpoenaed by an officer, and brought before him, and gives his testimony in obedience to the summons, the former is not ordinarily regarded as responsible. These facts, however, are not conclusive. A seemingly voluntary witness may in fact be acting under a sense of legal duty and a desire to assist justice, while one anxious to institute a proceeding against his neighbor with malice may cause himself to be subpoenaed.

4. Judicial proceeding.-The proceeding, to come within the legal conception of a malicious prosecution, must be a judicial one. Prosecutions or com

+ Thaule v. Krekeler, 81 N. Y. 428; Dennis v. Ryan, 65 N. Y. 385; Burnham v. Collateral Loan Co., 179 Mass. 274, 60 N. E. 617; Tangney v. Sullivan, 163 Mass. 166, 39 N. E. 799.

plaints before boards of public officers, or other public agents not exercising judicial functions, however wrongful and injurious they may be, are not included within the definition of this particular tort.

5

A judicial proceeding is one carried on before a court or magistrate, for the purpose of investigating and adjudging the legal rights and liabilities of the parties to such proceeding between or among themselves. The power of such a tribunal may extend to the final adjudication of the rights of the parties and their enforcement as adjudged; or it may lack the power of final determination of the matter before it, as in the case of committing magistrates, who have only the authority to determine the probability of the guilt of the accused, and to detain, admit to bail, or discharge him, as the facts may appear.

The question very frequently arises whether a proceeding instituted in a particular court which has no jurisdiction of the matter, is a judicial proceeding. There is a good deal of confusion in the answers given by the different courts. A great deal, if not all, of this confusion can be avoided if there is kept in mind the distinction between potential and active jurisdiction. Potential jurisdiction is the full authority conferred by law upon a particular court—the scope of its authority as an agency of the sovereign. Within the limit of this jurisdiction, the court may exercise judicial function. Outside of these limits it has no legal power. Potential jurisdiction is not infrequently called jurisdiction over the subject matter, though the latter expression is not nearly so 5 Bodwell v. Osgood, 3 Pick. 379 (Mass.).