fied in taking the matter before the court. Malice cannot justify an improper prosecution, neither can it make unlawful the prosecution begun for the purpose of bringing to punishment one whom the facts as known to the prosecutor reasonably show to be guilty.'

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6. Malice.The next essential element in malicious prosecution is malice. The law recognizes different kinds and degrees of malice, and many definitions of the term have been attempted. Perhaps as good a one as can be given in this connection is, "a state of mind which prompts one wilfully to do an unlawful act to the injury of another." This is substantially the idea announced by Mr. Greenleaf in the words so often quoted,-"Any unlawful act done wilfully and purposely to the injury of another, is, as against that person, malicious.'

Malice includes spite, ill-will, hatred, and all forms of affirmative desire to injure, but in legal contemplation it includes much more than these. If one purposely does an act which he is conscious is unlawful and wrongful and which must result in legal hurt to another, this will make out a charge of malice against him. Malice may be proven also by showing that the prosecutor instituted a criminal case, not for the purpose of vindicating justice or enforcing the criminal law, but to gain personal advantage to himself, such as forcing the payment of a debt or compelling the defendant to relinquish some legal right.18

16 Wheeler v. Nesbitt, 24 How. 544 (N. S.), 16 L. Ed. 765; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493; Hamilton v. Smith, 39 Mich. 222. 17 Greenleaf, Evidence, vol. II, § 452; Ramsay v. Arrott, 64 Texas 320. 18 Torsch v. Dell, 88 Md. 459, 41 Atl. 903; Gabel v. Weisensee, 49 Texas 131.

Malicious motive is absolutely essential to the existence of this tort. Ordinarily evil motive is not necessary to make wrongful and injurious conduct a tort. The cases in which evil motive is essential are usually, if not always, those in which the act complained of as wrongful is primarily unlawful in its nature but from considerations of public policy is licensed when committed with lawful motive. When evil motive actuates the conduct, the license is withdrawn and the act goes back to its original state of unlawfulness.

Applying these general doctrines to malicious prosecution, we find that every time a plaintiff in a civil suit, or the state in a criminal action, fails to maintain the case and final judgment goes for the defendant, this is an authoritative adjudication that the suit was wrongfully brought. Such conduct, strictly considered, should be unlawful. But, from considerations of public policy, this unlawful interference with the rights of the defendant, occasioned by an honest though mistaken belief that the action was well founded, is excused, or licensed, by law, and the successful defendant can maintain no further action on account of it. To allow such action would lead to endless litigation. Each time a plaintiff should be unsuccessful the defendant could sue him for damages, and each time a criminal prosecution failed the prosecuting witness would be subject to a like suit. This the law cannot tolerate. To avoid such conditions, it licenses the wrong of the unsuccessful suit unless it be prompted by evil motive. Hence the rule is universal that to maintain an action

for malicious prosecution, in every instance malice must be shown.

Malice may be proven in these cases by the same character of testimony as in any other. It is frequently said that malice may be implied from lack of probable cause. This is not the statement of a legal presumption, but merely an expression of what the jury is privileged to do if it sees fit.19

7. Interference with rights.-Litigation cannot be conducted without inconvenience, loss of time and expense to all parties connected therewith. The very general rule is that such ordinary results will not be taken into account, nor will the defendant be compensated therefor. According According to the weight of authority, before he can sustain an action for malicious prosecution he must be able to show special injury beyond these ordinary results.

There are some old cases which, in their language, indicate that it is not actually necessary to interfere with the defendant's right of personal liberty in criminal cases, or with his liberty or property rights in civil suits. The better opinion and the trend of the later cases seems to be that if there be no actual invasion of any right, personal or property, there can be no recovery.

In criminal cases the arrest of the defendant is always a sufficient invasion of his rights to support an action. Arrest does not necessarily mean the application of physical force. If an officer has a writ for the arrest of a defendant, and advises him of that

19 Merriam v. Mitchell, 13 Maine 439; Lunsford v. Dietrich, 86 Ala. 250, 5 So. 461; Sharpe v. Johnston, 59 Mo. 557; Roy v. Goings, 112 Ill. 656.

fact, and demands a bond, the recognition by the defendant of the officer's authority over him and the giving of a bond will be sufficient.

In civil cases where the defendant is arrested under process the rules are the same as in criminal actions.

If there is no interference with the defendant's person, according to the weight of authority, there must be an actual seizure of some property belonging to the defendant in the action or an appreciable interference with his enjoyment of some thing. Bringing a civil suit and making affidavit and giving bond to procure an attachment, and getting out the writ, if the papers are returned by instruction of plaintiff before levy, it has been held, will not maintain an action for malicious prosecution. This is held even when the defendant in the proceeding is a merchant, and he claims that his reputation and standing in his business are injured by the affidavit for attachment.2

If the proceeding is an unusual one which contemplates interference with the liberty and rights of the defendant, or the custody and control of all his property, as an action instituted to declare the defendant insane, or a proceeding in bankruptcy, the courts usually hold that no actual taking into custody of the person or seizure of the property is necessary." It is also held that where one person without

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20 Johnson v. King & Davidson, 64 Texas 226; Smith v. Michigan Buggy Co., 175 Ill. 619, 51 N. E. 569; Mayer v. Walter, 64 Pa. St. 283; Smith v. Hintrager, 67 Iowa 109. Contra: Wade v. National Bank, 114 Fed. 377; Lipscomb v. Schofner, 96 Tenn. 112, 33 S. W. 818.

21 Lockenour v. Sides, 57 Ind. 360.

authority to do so institutes or attempts to maintain litigation in behalf of another, without the latter's approval or consent, such unlawful interference in matters with which he has no concern will make him liable to the person sued for all damages resulting from his unwarranted action. This is based upon the idea that such person is not really using the court for the purposes for which it is maintained.

8. Termination of the proceeding. The proceeding which it is claimed was a malicious prosecution must be finally ended before a suit for the damages occasioned by it can be brought. Ordinarily there is no difficulty in determining whether or not the prosecution is at an end. A judgment of the court in which the proceeding was instituted usually settles this issue. Sometimes, however, the question is a difficult one. The difficulty arises on the point whether the termination of the particular prosecution instituted by the person sought to be held liable is sufficient, or whether all liability to prosecution which may grow out of the conduct of the original instigator must have terminated.

These difficulties occur principally in criminal cases and in two connections. First, where the prosecution was begun and dismissed without final trial, and the time for reinstating the dismissed proceeding has not passed. Second, where prosecution was instituted before a committing magistrate, and he has discharged the prisoner, but in pursuance of his legal duty the magistrate has transmitted the papers in the case, including the prosecutor's complaint and evidence, to the grand jury. The rule seems to be