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N. and E. (N. S.), 856; Bedford vs. Bagshaw, 4 Hurl and N., 537; Jarrett vs. Kennedy, 6 C. B., 319; Campbell vs. Fleming, 1 Adol. and E., 40; Peek vs. Derry, 37 Ch. Div., 541, and L. R., 14 App Cas., 337; Angus vs. Clifford, 2 L. R. Ch., 449. In these cases the representations were clearly addressed to the plaintiffs, among others of the public or of a class, and were plainly intended and calculated to influence their action in the specific matter in which they claimed to have been injured. So, too, in the American cases relied on to support the action. Morgan vs. Skiddy, 62 N. Y., 319; Terwilliger vs. Telegraph Co., 59 II., 249; Paddock vs. Fletcher, 42 Vt., 380. The numerous cases cited in the note to Palsey vs. Freeman, 2 Smith Lead. Cas. (9th Amer. Ed.), p. 1320, are of the same character. In the case at bar the certificate was made and filed for the definite purpose, not of influencing the public, but of obtaining from the state a specific right, which did not affect the validity of its contracts, but merely relieved its agents in Massachusetts of a penalty. It was not addressed to or intended for the public, and was known to the plaintiff only from the search of his attorney. It could not have been intended or designed by the defendants that the plaintiff should ascertain its contents, and be induced by them to take the notes. It is not such a representation made by one to another with intent to deceive as will sustain the action. Its statements are in no fair sense addressed to the person who searches for, discovers, and acts upon them, and cannot fairly be inferred or found to have been made with the intent to deceive him. This view of the law disposes of the case, and makes it unnecessary to consider the other questions raised at the trial."

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Misrepresentations by themselves do not constitute a ground of action; it is necessary that such representations result in damage to the plaintiff before there can be any recovery by him. If the person to whom the misrepresentations were made does not enter into the contract in connection with which the misrepresentations were made, there is of course no damage and no action. This is also true even if the plaintiff entered into such contract, but was not induced to do so by the misrepresentations.35 If a person relies on his own judgment, and this proves to have been erroneous, he cannot then be allowed to sue another party for the loss. A partial reliance upon the defendant's misrepresentations is, however, sufficient to permit a recovery.37

The representations must have been acted upon within a reasonable time after they were made; what will constitute a reasonable time, under all the circumstances of the case, is a question for the jury.38

As the final requisite for recovery by the plaintiff his acting upon the misrepresentations of the defendant must have resulted in damage to him. This damage must not have been contingent, uncertain or too remote. For consideration of this point, see Subject of 86 Ming vs. Woolfalk, 116 U. S., 599;

National Bank, 112 Fed., 931; Brockett vs. Griswold, 112 N.

Handy vs. Waldron, 19 R. I., Y., 454; 20 N. E., 376.

618; 35 Atl., 884; Strong vs. 36 Anderson vs. McPike, 86 Mo.,

Strong, 102 N. Y., 69; 5 N. E., 293; Granel vs. Wolfe, 185 Pa. St., 83; Herring vs. Draper, 88 Chilson vs. Houston, 9 N. D., 2 Houst., 158.

498; 84 N. W., 354. 87 Hindman

30 Volume IV, Subject 9.


vs. Louisville First




The most important tort action involving malice, is that of malicious prosecution. "Malicious prosecution, regarded as a remedy, is a distinctive action ex delictu for the recovery of damages to person, property, or reputation, shown to have proximately resulted from a previous civil or criminal proceeding, which was commenced or continued without probable cause, but with malice, and which has terminated unsuccessfully. Regarded as a specific tort, it is the wrong so committed.1 SECTION 62. ELEMENTS OF THE ACTION OF MALICIOUS

PROSECUTION. To sustain an action for malicious prosecution, the following elements must each be proved: (1) The commencement or continuation of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against the plaintiff, who was the defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards, resulting to plaintiff.?

SECTION 63. THE ORIGINAL ACTION. In England, this action could only arise out of an original criminal proceeding;: but in the United States, · 26 Cyc., p. 6.

3 Quartz Hill Consol. Gold Min. Co. • 26 Cyc., p. 8.

vs. Eyre, 11 Q. B. D., 674; 52 L. J. Q. B., 4488.

it may also be based upon a malicious civil suit. Actions like forcible entry and detainer, replevin, ejectment,' may be the basis for an action of malicious prosecution, as may also the misuse of extraordinary remedies, or auxiliary proceedings such as garnishment,' or attachment.

The subject of suits for malicious prosecution based upon civil suits, and the reason why the English rule should not apply in this country, are thoroughly discussed by the Court in the case of Pope vs. Pollock," in the following language:

"Will the prosecution of a suit in forcible entry and detainer, which results in a verdict for the defendant, where the same is prosecuted maliciously, and without probable cause, afford ground for an action in the nature of a suit for malicious prosecution, is the question in this case. The more common causes for actions for malicious prosecution are groundless and malicious proseoutions of criminal charges. But that actions of the kind can be maintained where there has been an unjustifiable and malicious seizure of the property of the complaining party, as well as of the person, there is no question. Whether or not such an action may be maintained where there has been no deprivation of liberty, or of the possession, use or en• Payne vs. Donegan, 9 Ill. App., • Dibrell vs. Robinson, 1 Tex. 566; Savage vs. Brewer, 16

App., Am. Cases, Sec. 721. Pick. (Mass.), 453, 28 Am.

This is particularly true in the Dec., 255.

case of the misuse of injunc• Nichelson vs. Cameron Lumber

SouthCo., 39 Wash., 569; 81 Pac.,

tions. Mitchell

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western R. Co., 75 Ga., 398;

Crate vs. Kohlsaat, 44 Ill. App., 6 McPherson vs. Runyon, 41 Minn.,

460; Newark Coal Co. vs. Up524, 43 N. W., 392.

son, 40 Ohio St., 17. ? Slater vs. Kimbro, 91 Ga., 217, • Roberts vs. Keeler, 111 Ga., 181, 18 S. E., 296. It is only where

36 S. E., 617. there are special circumstances 10 Nix vs. Goodhill, 95 Iowa, 282, of oppression, however, that

63 N. W., 701, 58 Am. St. an action of ejectment will

Rep., 434. furnish the basis for an action 11 46 Ohio St., 367, 21 N. E., 356, of malicious prosecution.

15 Am. St. Rep., 608, 4 L. R. A., 256.


joyment of property, has been the subject of much discussion, and of contrary holdings. It appears that in England, by the common law, prior to the statute of Marlbridge, 52 Hen. III (1259), actions of this character were allowed, but since the passage of that statute, which gave the successful defendant judgment for costs against the plaintiff, the right to maintain such actions has been uniformly denied, it being held that if one prosecutes an ordinary civil action against another maliciously, and without reasonable or probable cause, an action for the resulting damage is not maintainable. So, too, in this country, many decisions of like tenor have been made. The courts have said that courts of law are open to every citizen, and that the costs which the defendant gets are a compensation for the wrong. If every suit may be retired on an allegation of malice, the evil would be intolerable, and the malice in each subsequent suit would be likely to be greater than in the first; and that, if a defendant ought to have damages upon a false claim, then the plaintiff ought to have damages on a false plea, which would make litigation interminable. Beauchampe vs. Croft, Klelw., 26; Fitzh. Nat. Brev., 429; 1 Bac. Abr., 141; Savil vs. Roberts, 1 Salk., 14; Bull. N. P., 11; Parker vs. Langley, Gilb., K. B., 163; Goslin vs. Wilcock, 2 Wils., 305; 1 Amer. Lead. Cas., 261, note; Cooley, Torts, 189; Townsh. Sland. & Lib., Sec. 410; Taylor vs. Wilson, 1 N. J. Law, 362; Woodmansie vs. Logan, 2 N. J. Law, 68; Kramer vs. Stock, 10 Watts, 115; Thomas vs. Rouse, 2 Brev., 75; Ray vs. Law, Pet. C., 207; Potts vs. Inlay, 4 N. J. Law, 330; McNamee vs. Minke, 49 Md., 122; Muldoon vs. Rickey, 103 Pa. St., 110; Wetmore vs. Mellinger, 64 Iowa, 751; 18 N. W. Rep., 870; Bitz vs.

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