that in either of these cases the action for malicious prosecution may be begun before the lapse of time necessary to cut off the further continuation of the action, but that in so doing the plaintiff in the damage suit acts at his own risk. If in either case the prosecution be revived, based upon the original act of the prosecutor, the suit for damages must either abate or be stayed until the criminal prosecution is at an end. If, however, no such revival occurs, the action for damages may proceed and the dismissal or discharge will be a sufficient determination of the prosecution.22

If a third person, not influenced by or coöperating with the former prosecutor, should bring another prosecution for the same offense, this would not affect the claimant's right to maintain his suit for damages against the person who had done him the first wrong.

There are two legal reasons for requiring the termination of the alleged malicious prosecution before beginning the suit for damage. The first is that the judgment of acquittal is necessary to negative the idea of probable cause, and the second, that it is against the policy of the law to have two suits between the same parties, based on substantially the same facts, pending either in the same court or in different courts of concurrent jurisdiction. The latter reason does not apply in criminal cases.

22 Cardival v. Smith, 109 Mass. 158; Graves v. Dawson, 130 Mass. 78; Woodman v. Prescott, 66 N. H. 375; Lowe v. Wartman, 47 N. J. L. 413; Apgar v. Woolston, 43 N. J. L. 57; Rider v. Kite, 61 N. J. L. 8, 38 Atl. 754; Marks v. Townsend, 97 N. Y. 590; Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 666; Southern Car and Foundry Co. v. Adams, 131 Ala. 147, 32 So. 503.

9. Damages recoverable.-Damage is a sum of money allowed by law to the plaintiff as compensation for wrong done him by the defendant, or as a vindication of his right against the defendant. Damages are of two kinds: actual or compensatory, which are allowed in order to repay or reimburse the injured party for pecuniary loss sustained by him as a result of the defendant's wrong; and exemplary or punitive, which are intended as a punishment or example, with a view of deterring other persons from committing wrongs similar to that proven against the defendant.

The items of actual damage which may be recovered in any case for malicious prosecution depend upon the particular facts of the case. If the plaintiff in the action has been deprived of his liberty, subjected to mortification, brought into bad repute, suffered loss of time, sustained physical injury, or undergone physical or mental suffering, proper compensation may be allowed him for each of these items of hurt according to the testimony of the case. If his personal rights have not been interfered with but his property has been seized and thereby lost to him, he may recover the value of the property, or if the property has been restored, he may recover the value of its use while kept away from him and the depreciation in value occasioned by its seizure, either because of injury to the property, depreciation in price or other directly resulting hurt. Whatever doubt there may be as to the plaintiff's right to recover for injury to his reputation occasioned by malicious prosecution which did not result in inter

ference with his person or property, there is no doubt that such damages are recoverable when they result directly from, or are accompanied by, unlawful interference with one's personal liberty or the seizure of his personal property.

Exemplary damages are never allowed except in cases in which the wrongdoers have been actuated by evil motive, or have shown such wanton and reckless disregard of the rights of others as is equivalent to evil motive. As malice is one of the elements of the tort of malicious prosecution, whenever the plaintiff is successful in his suit he can recover such damage. The amount of this damage is largely in the discretion of the jury and judge, though not absolutely so. Exemplary damage can never be recovered in cases where there is no actual damage, and when both actual and exemplary damages are recovered the exemplary damages allowed must be in reasonable proportion to the actual.

10. To whom liability extends.-Everyone who, with knowledge of the facts that the suit is unfounded and that the plaintiff is actuated by malice, aids and abets the plaintiff in the prosecution is responsible with the plaintiff for the damages directly resulting therefrom. There is nothing peculiar in this tort in this respect. The rules are the same as govern in determining the liability of parties to other torts so far as those coöperating together are concerned.23

As malice is an essential element of this tort, no

23 Stansbury v. Fogle, 37 Md. 369; Peck v. Chouteau, 91 Mo. 138; Chambliss v. Blau, 127 Ala. 86, 28 So. 602.

one can commit it who has not sufficient mental capacity to entertain the required evil motive. Legal incapacities, such as minority or coverture, do not prevent liability where the parties have the mental capacity to entertain evil motive and in fact do so.

The ordinary rules governing the relation of constituent and substitute, as principal and agent, apply here. If the institution of the malicious prosecution was within the scope of the agent's employment, the principal will be responsible for the actual damage resulting therefrom but will not be held for exemplary damage unless he in some way personally acquiesced or participated in the evil motive. If the act was not within the scope of the agent's employment his principal is not responsible, unless he subsequently, with full knowledge of the facts ratifies the act and adopts the wrong.

Private corporations are responsible for malicious prosecution instituted by their agents or employees on the same principle and to the same extent that natural persons are. If the representative is a corporate officer, his motives will be attributed to the corporation and it will be responsible for both actual and exemplary damages. If the wrongdoer was a subordinate agent or employee, and the prosecution was instituted within the scope of his employment, the corporation will be responsible for actual damage but his malice will not be charged to the company to such an extent as to make it liable in exemplary damages.24

24 Apgar v. Woolston, 43 N. J. L. 57; Southern Car and Foundry Co. v. Adams, 131 Ala. 147, 32 So. 503.

11. Remedy. In those jurisdictions in which common law forms of action are recognized, remedy for malicious prosecution must be obtained by an action of trespass on the case.25 The defendant in the action for damages has not himself committed any direct trespass upon the rights of plaintiff. The violation of such rights has been procured by him through the conduct of others acting under the forms of law. He is not guilty of a trespass vi et armis (by force and arms). In those jurisdictions in which the common law forms of action are not recognized, all civil suits are substantially actions of trespass on the case.

Pleadings. Plaintiff in the suit for damages must set out in his petition or declaration every fact which goes to make up his case. He must affirmatively allege that the defendant in the present action, by himself or through someone for whose conduct he is legally responsible, instituted and maintained against him, the present plaintiff, a proceeding judicial in its nature, unsupported by probable cause; that in so doing the present defendant was actuated by malice, as that term has been explained, and that during such proceeding and as a part thereof, the present defendant actually interfered with either the personal or property rights of the plaintiff, which interference directly resulted in damage to the present plaintiff; that the proceeding so instituted terminated in the present plaintiff's favor. If these facts are shown, the plaintiff's petition will be good

25 Castro v. Uriarte, 12 Fed. 250. This opinion, though rendered in the District Court, is unusually valuable for its clearness, research and the authorities collated.