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A person cannot be held liable for malicious prosecution merely on account of some unauthorized act of his partner. 93 SECTION 65. TERMINATION OF ORIGINAL ACTION IN

FAVOR OF ACCUSED.

Before an action for malicious prosecution can be brought, there must be a termination of the original action in favor of the accused; 34 the only exception being in the cases where the original action was ex parte in its nature.35 According to the weight of authority, an action will not lie for a malicious attachment until a termination of the attachment suit in favor of defendant therein.36 A number of cases, however, hold that if a civil suit is maliciously proseccuted, especially the swearing out of a false attachment without probable cause, it is not necessary in order to maintain an action for malicious prosecution, that the suit should have ended, or that the attachment must have been discharged or otherwise terminated in favor of the defendant in the original suit.87 Termination of suit by the defendant's paying the plaintiff's demands and costs will not necessarily bar an action for malicious attachment, as it may be imperative for the defendant to have his goods released.38 final disposition on the merits,39 of the particular case by the proper judicial officer or body, or which amounts to such a cessation of proceedings as to render them incapable of being renewed.40

Any mode of termination in favor of the defendant is sufficient which constitutes a bona fide and

** Rosenkrans vs. Barker, 115 Ill.,

331; 3 N. E., 93. * Bonney vs. King, 20 Ill., 47, 66 N. E.,

377; Hurgrem vs. Union Mut. D. Ins. Co., 141 Cal., 595; 75 Pac., 168; Wood vs. Laycock, 3 Metc., 192; Dowdell vs. Carpy, 129 Cal., 168; 61 Pac.,

948. di Steward vs. Gromett, 7 O. B. N.

S., 191, 6 Jur. N. 8., 776.

80 Rea vs. Lewis, Minor (Ala.), 382;

Feavle vs. Simpson, 2 ml., 30;
Freymark vs. McKinney Bread

Co., 55 Mo. App., 435.
57 Alsop vs. Lidden, 130 Ala., 548,

30 S. R., 401; Rossiter vs. Minnesota vs. Bradner-Smith Co.,

37 Minn., 296, 3 N. W., 855. ** Brand vs. Hinchman, 68 Mich.

590, 36 N. W., 664.

A verdict and judgment are not essential.

It may be stated, as a general rule, that a dismissal of a proceeding by the court without a trial of the case on the merits may be such a legal termination as to permit of the maintenance of an action for malicious prosecution based thereon." The rule applies when the proceeding is dismissed by the trial court for want of prosecution.43 And a dismissal and discharge by the trial court for insufficiency of the affidavits upon which the prosecution is based is a sufficient termination to support the action. The same is true of a dismissal by reason of the failure of the prosecution to give security for costs."

A voluntary dismissal procured by the prosecutor is a sufficient termination to support an action of malicious prosecution. But it seems that a dismissal by a committing magistrate on motion of the prosecuting officer is not a sufficient termination of the proceeding, when the magistrate has no authority to dismiss the proceeding."

The rule is well settled that where a proceeding is dismissed or abandoned by procurement of the party to West vs. Hayes, 104 Ind., 251, 3

47

vs. Cheek, 115 N. C., 310, 20 S. N. F., 937; Davis vs. Stuart,

E. Rep., 460. 47 La. Am., 378; 16 S. R., 871; Pierce vs. Street, 3 B. & Ad., 397, Cardival vs. Smith, 109 Mass.,

23 E. C. L., 102; Brown vs. 158; 12 Am. Rep., 682.

Randall, 36 Conn., 56. « 26_Cyc., p. 57. Casebeer Vs. * Streight vs. Bell, 37 Ind., 550.

Drahoble, 13 Hebr. 465, 14 N. 45 Case beer vs. Rice, 18 Neb., 203, W., 397.

24 N. W. Rep., 693. Bell vs. Matthews, 37 Kan., 686; * Kelley vs. Sage, 12 Kan., 109; 16 Pac., 97.

Emery vs. Ginnan, 24 Ill. App., American and English Annotated

Cases, Vol. 7, p. 482. Note, • Schaefer vs. Cremer (S. D., 1906), Rutherford vs. Dyer (Ala.,

104 N. W. Rep., 468. 1906), 40 So. Rep., 974; Welah

69.

prosecuted, by settlement or compromise with the prosecutor or plaintiff in the action, it is not such a final determination of the matter in his favor as will support an action for malicious prosecution.48

In an English decision, which is apparently the only English decision upon this point, the Court said: "I think this mode of termination does not furnish any evidence that the action was without probable cause. If this should be allowed, the defendant would be deceived by the consent; as, without that, he would certainly have gone on with the action, and might have shown a foundation for it. I have no doubt about it." 49

The reason for this rule is that where the termination of the case is brought about by a compromise or settlement between the parties, understandingly entered into, it is such an admission that there was probable cause that the plaintiff cannot afterwards retract it and try the question, which by settling he waived.50

In Gallagher vs. Stoddard, 61 the evidence was that after the plaintiff was arrested he gave the officer making the arrest a sum of money, in settlement of all claims against him by the complainant officer and justice, and took their receipts therefor. It was held that an action for malicious prosecution could not be maintained on such facts, as they were insufficient to show a termination of the prosecution.

But in Holliday vs. Holliday,52 wherein the evidence disclosed that the proceeding was dismissed upon the statement of counsel for the accused, that W Marks vs. Gray, 42 Me., 86; Par- 30 Emery vs. Ginnan, 24 ml. App., ker vs. Farley, 10 Cush. (Mass.),

61 47 Hun (N. Y.), 101; 13 N. Y. St. • Wilkinson va. Howel, 1 M. & M., Rep., 218.

« 123 Cal., 26; 55 Pac. Rep., 703.

65.

279.

495.

the accused would refrain from committing certain threatened injuries, it was held that the dismissal of the proceeding was not at the procurement of the accused, and that an action for malicious prosecution could be maintained thereon.

There is not a sufficient termination of the proceedings when a judgment in the defendant's favor in the lower court has been appealed from,63 or when a prosecution is commenced in a justice's court and there dismissed and proceedings immediately started in an upper court.54

SECTION 66. WANT OF PROBABLE CAUSE. One of the essential elements in every action for malicious prosecution is that the action should have been commenced without probable cause.55 Want of probable cause will not be inferred from the proof of malice, the two must concur. Where a person procures the arrest of another without probable cause, good faith and honest motives on his part are no defense.57

The question of the existence, or the want, of probable cause is determined by the facts as known to the prosecutor, at the time the prosecution is instituted.85 If there were other facts, not known to the prosecutor at the time, which would have shown the accused to be innocent, this cannot influence the question whether the prosecutor acted with probable * Reynoldsfys. DeFeer, 13 Ill. App., 50 Anderson vs. Coleman, 53 Cal., 113; Neberzahl vs. Townsend,

188; Danchy vs. Salisbury, 29 61 How (N. Y.), 353.

Conn., 124; Lewton vs. Hower, 6 Schippel vs. Norton, 38 Kan., 567;

35 Fla., 58, 16 S., 616; Kerr vs. 16 Pac., 804.

Hyman, 6 Hawaii, 300. 65 Staples vs. Johnson, 25 App. Cas., 67 Wilson vs. Bowen, 64 Mich., 133, 155; Daily vs. Donath, 100 INI.

31 N. W., 81. App., 52; Shattuck

Si

68 Barton vs. Kavanaugh, 12 La. monds, 191 Mass., 506, 78 N.

Am., 332; Porter vs. Mack, 50 E., 122; Scott vs. Dewey, 23

W. Va., 581, 40 S. T., 459;
Pa. Super. Co., 396.

Stewart vs. Sonnehorn, 88 U.
S., 187.

Vs.

60

cause; and on the other hand, the prosecutor cannot
sustain his defense by the proof of facts not known
to him at the time he acted. The question of proba-
ble cause is determined from the standpoint of the
reasonably prudent and cautious man.5o "Some allow-
ance will be made when the prosecutor is so injured
by the offense that he could not likely draw his con-
clusions with the same impartiality and absence of
prejudice that a person entirely disinterested would
deliberately do; all that can be required of him is that
he shall act as a reasonable and prudent man would
be likely to do under like circumstances.
The right to recover in an action for malicious

prosecution is not based solely on the innocence of the plaintiff as to the charge for which he was prosecuted, 91 nor is it decisive of the want of probable cause.92 Upon the proof of actual guilt, however, the existence of probable cause is conclusively presumed as a matter of law.83

The weight of authority is that when a person accused of crime is discharged at the preliminary hearing by the examining magistrate, who has jurisdiction merely to discharge the accused or bind him over for trial by a court of competent jurisdiction, and the accused subsequently brings an action against the prosecutor for malicious prosecution, evidence of such discharge makes a prima facie showing of want of probable cause for the prosecution, which it is incumbent upon

the defendant to overcome. On the other hand, where, upon an information filed before a justice of the peace, a person is accused of an offense which is not indictable, but which the justice

1

50 Heyne vs. Blair, 62 N. Y., 19.
CO Spear vs. Hiles, 67 Wis., 361, 366,

30 N. W., 511.
01 Davle vs. Wisher, 72 Ill., 262.

69 Hall vs. Suydam, 6 Barb. (N. Y.),

83. as Lancaster vs. McKay, 103 Ky.

616, 45 S. W., 887.

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