Gambar halaman

Meyer, 40 N. J. Law, 252; Mayer vs. Walter, 64 Pa.
St., 283.

“Where such suits have been maintained, the right has been placed upon the ground that taxable costs, including, as in most states, but the fees of witnesses and officers of court, afford a very partial and inadequate remuneration for the necessary expenses of defending an unfounded suit, and no remedy at all to repair the injury received. It is upon this principle, in part, that actions have ever been sustained for malicious criminal prosecutions, in which no costs are taxed in favor of the accused. Where an action is brought and prosecuted maliciously, and without probable cause, it is an abuse of legal process, and the plaintiff asserts no claim in respect to which he has any right to invoke the aid of the law. It is a wrong to disturb one's property or peace; and to prosecute one maliciously and without probable cause, is to do that person a wrong. The common law declares that for every injury there is a remedy, and to deny remedy in such case would violate this wholesome principle. The burden of establishing both malice and want of probable cause will prove a sufficient check to reckless suits of this character. When the plaintiff sets the law in motion, he is the cause, if it be done groundlessly and maliciously, of defendant's damage, and the defendant but stands upon his legal rights when he calls upon the plaintiff to prove his case to the satisfaction of judge and jury. Vanduzor vs. Linderman, 10 Johns, 106; Pangburn vs. Bull, 1 Wend., 345; Whipple vs. Fuller, 11 Conn., 582; Closson vs. Staples, 42 Vt., 209; Marbourg vs. Smith, 11 Kan., 554; Bigelow, Torts (2d Ed.), 71; Smith vs. Smith, 56 How. Pr., 316; Bump vs. Betts, 19 Wend., 421; Woods vs. Finnell,

[ocr errors][ocr errors][merged small][merged small]

13 Bush., 628; Hoyt vs. Macon, 2 Colo., 113; Payne vs. Donegan, 9 Ill. Appl., 566; McCardle vs. McGinley, 86 Ind., 528; Juchter vs. Boehm, 67 Ga., 534; Lawrence vs. Hagermann, 56 Ill., 68; Atwood vs. Monger, Style, 378. See, also, an able review of the subject by John D. Lawson, Esq., of the St. Louis Bar. 21 Amer. Law Rep., 281. There seems, as will appear by reference to these citations, abundant authority in other states of the Union to support the proposition that a suit may be maintained for damages arising from the prosecution of an ordinary civil action, when the same is done maliciously, and without probable cause, but without disturbance to person or property. The precise question has not been made in Ohio, though in two cases (Tomlinson vs. Warner, 9 Ohio, 104, and Fortman vs. Rottier, 8 Ohio St., 548), this Court has held that an action may be maintained for maliciously and without probable cause, suing out and levying a writ of attachment. So, where one has been wrongfully deprived of the use of his land by the prosecution, maliciously and without probable cause, of an injunction proceeding, the Court held (Coal Co. vs. Upson, 40 Ohio St., 17): that an action for malicious prosecution will lie. The language of the opinion,

'It may now be considered the approved doctrine that an action for the malicious prosecution of a civil suit may be maintained whenever, by virtue of any order or writ issued in the malicious suit, the defendant in that suit has been deprived of his personal liberty, or of the possession, use, or enjoyment, of property of value.' It will be noted, that, where damages for the prosecution, maliciously and without probable cause, of an ordinary civil action are refused, one of the principal reasons

page 25, is:

given is that the allowance of taxed costs is regarded as sufficient punishment to the plaintiff for prosecuting, and recompense to the defendant for defending, such an action. In England, the taxed costs which may be awarded to a successful defendant, include not only fees of court officers and witness, but attorney's charges for preparing the case for trial, and the honorarium of the barrister who tries it, and in a number of American states a like taxation of costs prevails. But in Ohio, the successful party in an ordinary action recovers only the fees of witnesses and court officers, leaving his own personal expenses in preparing the case, in attending the trial, and his attorney's fees for preparation and for trial, to be paid without reimbursement. Taxed costs are not here regarded as affording full compensation for expenses incurred, for in cases where damages may be recovered for malicious injury, fees of counsel, as well as court costs, are included in compensatory, and not punitive damages. The reason for the rule having failed, there is much ground for saying that the rule itself fails."

It is clear, that this action may be maintained for maliciously and without probable cause, suing out an attachment,"2 and seizing the goods of the plaintiff, even if there was an indebtedness at the time due by the plaintiff. The reason for the rule is founded in a well-known principle of common law. In Braid vs. Hinchman, the Court said: “There are but few, if any, wrongs for which the law does not provide a remedy, and if a man is hurt or damaged in his property, business, credit, or reputation, by the malicious


12 Burjhart vs. Jennings, 2 W. Va.,

242. 13 Savage vs. Brewer, 16 Pick.

(Mass.), 453. * Spaids vs. Barrett, 57 m., 289;

11 Am. Rep., 10.

1 i. e. the plaintiff in the action for

malicious prosecution, who would have been the defendant

in the original action. * 68 Mich., 590 36; N. W., 664.

commencement or prosecution of a civil suit, without probable cause, the better doctrine is that he can maintain an action on the case for such hurt or dam


The original suit, whether criminal or civil, must have been instituted or participated in by the defendant.Liability for malicious prosecution may attach either through the personal acts of the defendants or the acts of his agent, or attorney,ao or by ratification by the defendant.21 SECTION 64. DEFENDANT'S CONNECTION WITH THE

ORIGINAL ACTION. The plaintiff, in an action for malicious prosecution, must show the defendant's connection with the original action. It is sufficient if the defendant either commenced the action or continued it after the want of probable cause had been shown. Where an action was instituted by several persons, in the name of one, with probable cause, and afterward during the progress of the suit, the person in whose name the action was commenced, discovered that there is no probable cause of action, but did not dismiss the suit, he was held to be alone liable for malicious prosecution. Where one party caused the arrest of another upon a warrant for larceny and the justice of the peace, before whom the case comes, of his own motion, changed the charge to one of disorderly conduct, imposed a fine and committed the accused to jail in default of payment thereof, the party instigating the prosecution was held not to be liable for anything done after the charge had been changed.24

17 Wilkinson vs. Arnold, 11 Ind., 45; Cook vs.

Proskey, 138 Fod. 273; 77 D. C. A., 563. Hurd vs. Shaw, 20 III., 354; McMorris vs. Howell, '89 N. Y. App. Div., 272;85 N. Y. Suppl., 1018. One who both makes an arrest and originates the proceeding in which it is made may be liable for malicious prosecution, although protected as to the arrest. Regis

ter vs. Lee Sam., 94 Fed., 343; Vol. IV.-10.

36 C. C. A., 285. 10 Krulevitz V8. Eastern R. Co.,

140 Mass., 573, 5 N. E., 500;

Luden vs. McGee, 16 Ont., 105. * Burnap vs. Albert, 4 Fed. Cas.

No. 2, 170. u Thompson vs. Bell, 11 Tex. Am. App., 1, 32 S. W.,

142. 23 Wenger vs. Phillips, 195 Pa. St.,

214; 45 Atl., 927, 78 Am. St. Rep., 810; Blunk vs. Atchin

son, etc. Ř. Co., 38 Fed., 311. 23 Bicknell v8. Darion, 16 Piak.

(Mass), 478.

The action of the defendant must have been the proximate and efficient cause of putting the law in operation in the original case.25 The action does not lie for merely preferring an accusation,ao or for making to a magistrate a full and true statement of facts which the magistrate, mistakenly believing to constitute a good ground of action, issues a warrant upon.” An action for malicious prosecution does not lie where the defendant made no effort to procure the indictment, but merely went before the grand jury upon process issued by the State,28 or where the defendant believing that a crime had been committed, called in a police inspector and stated the material facts to him, expecting him to make further investigations.29

An attorney may be liable for suing out process, or procuring an arrest when he knows that there is no cause of action; 31 he is not liable, however, when he relies, in good faith, upon the information furnished to him by his client. 32

[ocr errors][ocr errors]


[ocr errors]

24 Frankfurter Vs. Bryan, 12 Ill.

App., 549.
26 Cook vs. Proskey, 138 Fed., 273;

Waker vs. Thies, 56 Mo., 89;
Wilkinson vs. Arnold, 11 Ind.,

38 White vs. Shrodski, 36 Mo. App.,

635; Brown vs. Chadsey, 39
Barb, 253; Wasserman
Louisville etc. R. Co., 28 Fed.,

37 Cole vs. Andrews, 74 Minn., 93,

76 N. W., 962. 'A complaining witness is not responsible for

the judgment of a magistrate in issuing a search warrant upon an insufficient affidavit. Wilmerton vs. Sample, 42 III.

App., 254. 28 Breneman vs. West, 21 Tex. Civ.

App., 19, 50 S, W., 471. 29 Burnham vs. Collateral Loan Co.,

179 Mass., 268, 60 N. E., 617. 30 Warfield vs. Campbell, 35 Ala.,

349. 31 Burlap vs. Marsh, 13 III., 535. 32 Liquid Carbonic Acid Mfg. Co.

vs. Convert, 82 III. App., 39.


« SebelumnyaLanjutkan »