the goods of the defendant, with malicious intent to vex and harass him, this action lies, though the suit was for a just cause of action. But where the suit was commenced by the attorney of the party, in the course of his general employment, though without the knowledge or assent of his client, it seems that the party himself is liable. The attorney is not liable unless he acted wholly without authority, or conspired with his client to oppress and harass the plaintiff. Nor is it material that the plaintiff was prosecuted by an insufficient process, or before a court not having jurisdiction of the matter; for a bad indictment may serve all the purposes of malice as well as a good one, and the injury to the party is not on that account less than if the process had been regular, and before a competent tribunal.1 (a) § 450. Proof of prosecution. (1.) The fact of the prosecution will be proved by duly authenticated copies of the record and proceedings. (b) Some evidence must also be given that the defendant was the prosecutor. To this end, a copy of the indictment, with the defendant's name indorsed as a witness, is admissible as evidence that he was sworn to the bill; but this fact may also be proved by one of the grand jury, or other competent testimony. It may also be shown, that the defendant employed counsel or other persons to assist in the prosecution; or, that he gave instructions, paid expenses, procured witnesses, or was otherwise active in forwarding it. 1 Pierce v. Thompson, 6 Pick. 193. 2 Jones v. Nichols, 3 M. & P. 12. 8 Bicknell v. Dorion, 16 Pick. 468. 4 Chambers v. Robinson, 1 Stra. 691; Anon., 2 Mod. 306; Saville v. Roberts, 1 Ld. Raym. 374, 381; Jones v. Givin, Gilb. Cas. 185, 201-206, 221; Pippet v. Hearn, 5 B. & Ald. 634. For the law respecting variance between the allegation and the proof, see ante, vol. i. §§ 63-65. If the prosecution was in a foreign country, a copy of the record is not indispensably necessary, but other evidence of the facts may be received. Young v. Gregory, 3 Call, 446. Rex v. Commerell, 4 M. & S. 203; Rex v. Smith, 1 Burr. 54; Rex v. Kettleworth, 5 T. R. 33; Johnson v. Browning, 6 Mod. 216. See, as to the competency of grand jurors, ante, vol. i. § 252. (a) Stone v. Stevens, 12 Conn. 219; Morris v. Scott, 21 Wend. (N. Y.) 281; Hays v. Younglove, 7 B. Mon. (Ky.) 545. But it has also been held that if the prosecution is brought in a court which has no jurisdiction of the crime, the accused cannot have an action against the complainant for malicious prosecution, though if he has been arrested he may have an action for false imprisonment. Painter v. Ives, 4 Neb. 122; Bixby v. Brundige, 2 In Sweet v. Negus, 30 Mich. 406, the distinction was drawn that if the lack of jurisdiction is not apparent on the face of the record, but only shown by evidence aliunde, an action for malicious prosecution may be sustained. (b) Sayles v. Briggs, 4 Met. (Mass.) 421. § 451. Arrest. Where the suit is for causing the plaintiff to be maliciously arrested and detained until he gave bail, it is sufficient for him to show a detention, without proving that he put in bail; for the detention is the principal gravamen, and is in itself prima facie evidence of an arrest,1 though the mere giving of bail is not.2 But if the declaration is framed upon the fact of maliciously causing the plaintiff to be held to bail, no evidence of a previous arrest is necessary.3 6 § 452. Termination of suit. It must also appear that the prosecution is at an end. If it was a civil suit, its termination may be shown by proof of a rule to discontinue on payment of costs, and that the costs were taxed and paid, without proof of judgment or production of the record; but an order to stay proceedings is not alone sufficient. If it was terminated by a judgment, this is proved by the record. But where the action is for abusing the process of law, in order illegally to compel a party to do a collateral thing, such as to give up his property, it is not necessary to aver and prove that the process improperly employed is at an end, nor that it was sued out without reasonable or probable cause.7 So, if it was a criminal prosecution, the like evidence must be given of its termination. And it must appear that the plaintiff was acquitted of the charge; it is not enough that the indictment was ended by the entry of a nolle prosequi, though if the party pleaded not guilty, and the Attorney-General confessed the plea, this would suffice. (a) So, if he was acquitted because of a defect in the 1 Bristow v. Haywood, 1 Stark. 48; s. c. 4 Campb. 213; Whalley v. Pepper, 7 C. & P. 506. 2 Berry v. Adamson, 6 B. & C. 528; s. c. 2 C. & P. 503. 8 Ibid.; Small v. Gray, 2 C. & P. 605. 4 Arundell v. Tregono, Yelv. 116; Hunter v. French, Willes, 517; Lewis v. Farrell, 1 Stra. 114; Shock v. McChesney, 2 Yeates, 473, 475. Bristow v. Haywood, 4 Campb. 213; French v. Kirk, 1 Esp. 80; Brook v. Carpenter, 3 Bing. 297; Watkins v. Lee, 6 M. & W. 270. 6 Wilkinson v. Howell, 1 M. & Malk. 495. Nor is an order to supersede the commissioner sufficient, in a case of bankruptcy. Poynton v. Forster, 3 Campb. 60. 7 Grainger v. Hill, 4 Bing. N. C. 212; s. c. 3 Scott, 561. 8 Goddard v. Smith. 1 Salk. 21; s. c. 6 Mod. 261; Smith v. Shackelford, 1 Nott & M'C. 36; Fisher v. Bristow, 1 Doug. 215; Morgan v. Hughes, 2 T. R. 225. (a) Bacon v. Towne, 4 Cush. (Mass.) 217; Parker v. Farley, 10 Cush. (Mass.) 279. And where the magistrate has authority only to bind over or discharge a person accused, and he discharges him, the discharge is equivalent to an acquittal, and will avail as evidence to support an allegation of acquittal in a declaration for ma licious prosecution. Sayles v. Briggs, 4 Met. (Mass.) 421. Nothing short of an acquittal is sufficient, where the prosecutor has progressed to a trial before a petit jury. Kirkpatrick v. Kirkpatrick, 39 Penn. St. 288. Where one held on a criminal charge was discharged on writ of habeas corpus, indictment, it is sufficient.1 If the party has been arrested and bound over, on a criminal charge, but the grand jury did not find a bill against him, proof of this fact is not enough, without also showing that he has been regularly discharged by order of court; for the court may have power to detain him, for good cause, until a further charge is preferred for the same offence.2 But, in other cases, the return of ignoramus on a bill, by the grand jury, has been deemed sufficient.3 § 453. No probable cause. (2.) The plaintiff must also show that the prosecution was instituted maliciously, and without probable cause; and both these must concur. (a) If it were malicious and unfounded, but there was probable cause for the prosecution, this action cannot be maintained.5 The question of malice is for 1 Wicks v. Fentham, 4 T. R. 247. ? Thomas v. De Graffenreid, 2 Nott & McC. 143. And see Weinberger v. Shelly, 6 W. & S. 336. 3 Morgan v. Hughes, 2 T. R. 225; Anon., Sty. 372; Atwood v. Monger, Sty. 378; Jones v. Givin, Gilb. Cas. 185, 220. 4 Farmer v. Darling, 4 Burr. 1971; Stone v. Crocker, 24 Pick. 81, 83; Bell v. Graham, 1 Nott & McC. 278; Hall v. Suydam, 6 Barb. S. C. 83. Whether, therefore, this action lies against a corporation, quære; and see McLellan v. Bank of Cumberland, 9 Law Rep. 82. (b) Arbuckle v. Taylor, 3 Dowl. 160; Turner v. Turner, Gow, 20. this was held not to be a termination of the suit so as to authorize a suit for malicious prosecution. Merriman v. Morgan, 7 Or. 68. The termination of the malicious prosecution in favor of the defendant, who thereupon sues for malicious prosecution, is merely a fact necessary to give him a right to sue. It has no tendency to support the allegation of malice, or of lack of probable cause. Stewart v. Sonneborn, 98 U. S. 187; Allman v. Abrams, 9 Bush (Ky.), 738. Where the grand jury finds no bill, but parol evidence shows that it was on account of the absence of a material witness and that the case was not ended, an action for malicious prosecution will not lie. Knott v. Sargent, 125 Mass. 95. Morton, J., says: "If the prosecution alleged to be malicious was by complaint to a magistrate, upon which the plaintiff was bound over to appear at the superior court, he must show that he has been discharged by order of that court. Until such discharge the prosecution is not at an end, but he and his sureties remain liable upon his recognizance. The dictum of Mr. Justin Buller, in Morgan v. Hughes, 2 T. R. 225, that if the accused was dis charged by the grand jury's not finding the bill, that would have shown a legal end to the prosecution, does not necessarily imply that the grand jury's not finding a bill at the term to which the accused is bound over would be an end of the prosecution. It rather implies that the prosecu tion is not ended unless he is discharged by reason of the grand jury's finding no bill. See Thomas v. De Graffenreid, 2 Nott & McC. 143." The entry of "neither party" is not such a termination as will support an action. Hamilburgh v. Shepard, 119 Mass. 30. (a) Stacy v. Emery, 97 U. S. 642; Anderson v. Coleman, 53 Cal. 188; Turner v. O'Brien, 11 Neb. 108; Ritchey v. Davis, 11 Iowa, 124; Kirkpatrick v. Kirkpatrick, 39 Penn. St. 288. And see (b) It seems settled now that such an action will lie. Stevens v. Mid. Co. R. R. Co., 10 Exch. 352; Green v. London, &c. Co., 7 C. B. N. s. 290; Henderson v. Mid. R. R. Co., 24 L. T. N. s. 881. also Coulter v. Dublin & Belfast R. R. Co., Irish L. T. (1875) 209; Philadelphia, &c. R.R. Co. v. Quigley, 21 How. (U. S.) 202; Fenton v Sewing Machine Co., Leg. Int., April 24, 1874. the jury; and to sustain this averment the charge must be shown to have been wilfully false. In a legal sense, any unlawful act, done wilfully and purposely to the injury of another, is, as against that person, malicious.2 (a) And if the immediate act be done unwillingly and by coercion, as, where the party preferred an indictment because he was bound over so to do, yet, if he was himself the cause of the coercion, as, by originally making a malicious charge before the magistrate, this will sustain the averment of malice. The proof of malice need not be direct; it may be inferred from circumstances, but it is not to be inferred from the mere fact of the plaintiff's acquittal for want of the prosecutor's appearance when called; nor, in the case of civil suit, from the parties suing out the writ, or neglecting to countermand it, after payment of the debt.5 But it may be inferred by the jury, from 1 Cohen v. Morgan, 6 D. & R. 8; Johnstone v. Sutton, 1 T. R. 540; Jackson v. Burleigh, 3 Esp. 34; Austin v. Debnam, 3 B. & C. 139; Burley v. Bethune, 5 Taunt. 580; Grant v. Duel, 3 Rob. (La.) 17. 2 Commonwealth v. Snelling, 15 Pick. 321, 330; Stokley v. Harnidge, 8 C. & P. 11. The law, as to malice, was clearly illustrated by Parke, J., in Mitchell v. Jenkins, 7 B. & Ád. 588, 594, in the following terms: "I have always understood, since the case of Johnstone v. Sutton, 1 T. R. 510, which was decided long before I was in the profession, that no point of law was more clearly settled than that, in every action for a malicious prosecution or arrest, the plaintiff must prove what is averred in the declaration, viz., that the prosecution or arrest was malicious, and without reasonable or probable cause; if there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable; but when there is no reasonable or probable cause, it is for the jury to infer malice from the facts proved. That is a question in all cases for their consideration; and it having in this instance been withdrawn from them, it is impossible to say, whether they might or might not have come to the conclusion that the arrest was malicious. It was for them to decide it, and not for the judge. I can conceive a case, where there are mutual accounts between parties, and where an arrest for the whole sum claimed by the plaintiff would not be malicious; for example, the plaintiff might know that the set-off was open to dispute, and that there was reasonable ground for disputing it. In that case, though it might afterwards appear that the set-off did exist, the arrest would not be malicious. The term 'malice,' in this form of action, is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. That would not be the case where, there being an unsettled account, with items on both sides, one of the parties, believing bona fide that a certain sum was due to him, arrested his debtor for that sum, though it afterwards appeared that a less sum was due; nor where a party made such an arrest, acting bona fide under a wrong notion of the law, and pursuant to legal advice.' And see Haddrick v. Heslop, 12 Ad. & El. n. s. 267. 3 Dubois v. Keates, 4 Jur. 148; s. c. 3 P. & D. 306. 4 Purcell v. Macnamara, 9 East, 361; s. c. 1 Campb. 199; Sykes v. Dunbar, Id. 202, n. 5 Gibson v. Chaters, 2 B. & P. 129; Scheibel v. Fairbain, 1 B. & P. 388; Page v. Wiple, 3 East, 314. Nor from the action being non-prossed or discontinued (Sinclair (a) Bacon v. Towne, 4 Cush. (Mass.) 217; Parker v. Farley, 10 Cush. (Mass.) 281; Parker v. Huntington, 2 Gray (Mass.), 125; McGurn v. Brackett, 33 Me. 331; Beach v. Wheeler, 24 Penn. St. 212; Lang v. Rodgers, 19 Ala. 321; the want of probable cause.1 (a) Malice may also be proved by evidence of the defendant's conduct and declarations, and his forwardness and activity in exposing the plaintiff, by a publication of the proceedings against him, or by any other publications by the defendant on the subject of the charge.2 And if the prosecution was against the plaintiff jointly with another, evidence of the defendant's malice against the other party is admissible, as tending to show his bad motives against both.3 § 454. Same subject. The want of probable cause is a material averment; and, though negative in its form and character, it must be proved by the plaintiff by some affirmative evidence ; 4 unless the defendant dispenses with this proof by pleading singly the truth of the facts involved in the prosecution.5 It is independent of malicious motive, and cannot be inferred, as a necessary consequence, from any degree of malice which may be shown.6 (b) Probable cause for a criminal prosecution is understood to be such conduct on the part of the accused as may induce the court to infer that the prosecution was undertaken from public motives. (c) In the case of a private suit, it may consist of such v. Eldred, 4 Taunt. 7); unless coupled with other circumstances (Bristow v. Heywood, 1 Stark. 48; Nicholson v. Coghill, 4 B. & C. 21; 6 D. & R. 12.) 1 Murray v. Long, 1 Wend. 440; Crozer v. Pilling, 4 B. & C. 26; Mitchell v. Jenkins, 5 B. & Ad. 588; 1 Nev. & M. 301; Turner v. Turner, Gow, 20; Merriam v. Mitchell, 1 Shepl. 439; Hall v. Suydam, 6 Barb. S. C. 83. Crassa ignorantia has been held to amount to malice. Brookes v. Warwick, 2 Stark. 389. 3 Caddy v. Barlow, 1 M. & Ry. 275. 2 Chambers v. Robinson, 1 Stra. 691. 4 Ante, vol. i. § 78; Purcell v. Macnamara, 1 Campb. 199; 9 East, 361; McCormick v. Sisson, 7 Cowen, 715; Murray v. Long, 1 Wend. 140; Gorton v. De Angelis, 6 Wend. 418; Incledon v. Barry, 1 Čampb. 203, n.; Taylor v. Williams, 2 B. & Ad. 845; 6 Bing. 183. Where the declaration alleged a prosecution of the plaintiff for perjury in a certain cause, and the indictment was set forth containing two several assignments of perjury, it was held that the declaration was supported by proof of malice and the want of probable cause as to one only of the assignments. Ellis v. Abrahams, 10 Jur. 593. 5 Morris v. Corson, 7 Cowen, 281. See also Sterling v. Adams, 3 Day, 411. 61 Campb. 206, n. a; Sykes v. Dunbar, Id. 502, n. a; Horn v. Boon, 3 Strobh. 307; Hall v. Suydam, 6 Barb. S. C. 83. 7 Ulmer v. Leland, 1 Greenl. 135. Or, such a suspicion as would induce a reasonable man to commence a prosecution. Cabaness v. Martin, 3 Dev. 454. Or, a reason |