CHAPTER XVIII. MALICIOUS PROSECUTION.1 Right of appeal to criminal tribunal-What is malicious prosecution-Distinction between malicious prosecution and false imprisonment Essentials to a cause of action -Prosecution commenced-Terminated in favor of plaintiff Conviction—Reasonable and probable cause -Advice of counsel-Not guilt or innocence, but knowledge and belief of prosecutor the question— Probable cause a question of law-Malice--Parties— Pleadings. S418. We have now to consider that wrong by means of language termed a malicious prosecution. As heretofore stated, every one having reasonable and probable grounds for believing that a crime had been committed, has the right to communicate his belief to the magistrate having jurisdiction of such offense 220). The existence of this right is essentially necessary to the efficient administration of the criminal law, and its exercise is to be encouraged rather than repressed. Having reasonable and probable cause for believing the accused guilty of the offense imputed confers this right, and the right is not tolled by being exercised maliciously. $419. Attention has been heretofore directed to the difference between the right to appeal to a civil and the right to appeal to a criminal tribunal (§ 221).1 An appeal tion are looked upon with disfavor." (Savill v. Roberts, Carth. 416; Pantsune v. Marshall, Say. 162; Wanzer v. Wyckoff, 9 Hun, 179.) "Courts will be cautious how they discourage men from suing." (Goslin v. Wilcock, 2 Wilson, 302; Cardival v. Smith, 109 Mass. 158; and see Hurd v. Shaw, 20 Ill. 354.) "In general, however, every man is of common right entitled to prefer an accusation against a party whom he suspects to be guilty." (Chit. Cr. Law, 2.) In some cases it is not only the right, but it is the duty of one cognizant of the commission of a criminal offense to communicate his knowledge. 1 In addition to the instances given (note 3, p. 331, ante), actions have been maintained for issuing an attachment (Brewer v. Jacob, 22 Fed. Rep. 217; Collins v. Shannon, 67 Wis. 441; Biering v. First Nat. B'k of Galveston, 69 Texas, 599; Brooks v. Sanger, 7 So. West. Rep. 355 [Texas]; Palmer v. Keith, 16 Neb. 91); for filing notice of lis pendens against real estate (Smith v. Smith, 20 Hun, 555; 56 How. Pra. Rep. 316); for restraining plaintiff by injunction (Lawton v. Green, 5 Hun, 157; Frame v. Sewing Machine Co. 31 Fed. Rep. 704); for arresting in a civil action (Ingraham v. Root, 51 Hun, 238; 21 N. Y. St. Rep. 192; Daniels v. Fielding, 16 M. & W. 200; Gibbons v. Allison, 3 C. B. 181; Petrie v. Lamont, 4 Sc. N. R. 335; Melia v. Neate, 3 Fost. & F. 757; Gibson v. Veasey, 15 Law Times, N. S. 586; Ray 7. Law, Peters C. C. R. 207; Stokley v. Hornidge, 8 Car. & P. 11; Heywood v. Cellinge, 9 Ad. & El. 268; Zantzmayer v. Weightman, 2 Cranch C. Ct. 478; Breckenridge v. Auld, 4 Id. 731; Smith v. Cattel, 2 Wils. 376; Goslin v. Wilcock, Id. 302; Norrish v. Richards, 3 Ad. & El. 733; Newton v. Boodle, 9 Q. B. 948; Richardson v. Virtue, 4 Sup. Ct. Rep. [T. & C.] 441; Cuthbert v. Galloway, 35 Fed. Rep. 466); for arresting after debt paid (Tibbutt v. Holt, 1 Car. & K. 280); for bringing vexatious ejectment (Purton v. Honnor, 1 Bos. & P. 205); for refusing to consent to plaintiff's discharge from arrest (Moore v. Gardner, 16 M. & W. 595); for issuing execution against the person of plaintiff after he had been discharged under the insolvent act (Envart v. Jones, 3 Dowl. & L. 252; and see Yearsley v. Heane, 5 Dowl. & L. 265); for arresting one while privileged from arrest (Stokes v. White, 4 Tyr. 786; Magnay v. Burt, 5 Q. B. 381; Whalley v. Pepper, 7 C. & P. 506); for arresting for more than is due (DeMedina v. Grove, 10 Q. B. 152; Churchill v. Siggers, 3 El. & Bl. 929; Huffer v. Allen, Law Rep. 2 Ex. 15; Gilding v. Eyre, 10 C. B. N. S. 592; Wentworth v. Bullen, 9 C. B. 840); for causing one to be declared a bankrupt (see Farley v. Danks, 4 El. & Bl. 493: Brown v. Chapman, 3 Burr. 1418; Chapman v. Pickersgill, 2 Wils. 145; Whitworth v. Hall, 2 B. & Add. 695; Hay v. Weakley, 5 C. & P. 364; Atkinson v. Rawley, 3 G. & D. 611; Colton v. James, 1 B. & Adol. 128; Kemp v. King, Car. & M. 396; Quartz Hill Gold Mining Co. v. Eyre, II Q. B. D. 674); for maliciously rendering in discharge of bail (Porter v. Weston, 5 Bing. N. C. 715); for procuring one to be outlawed (Drummond v. Pigon, 7 C. & P. 228); for an unlawful distress (Stevenson v. Newnham, 13 C. B. 285; Grau v. Morgan, 1 Hodges, 398); for issuing a commission of lunacy (Turner v. Turner, Gow, 50; and see Lockenour v. Sides, 57 Ind. 360; Ayres. Russell, 50 Hun, 283; Carr |