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has jurisdiction to try and punish, the discharge or acquittal of the accused by the justice is not prima facie evidence of want of probable cause. R4
If the defendant, in the action for malicious prosecution, has submitted a full statement of the facts of the case to a competent attorney, and in good faith received advice justifying the prosecution which he instituted, this will, as a general rule, be held to show that he acted with probable cause, and is therefore entitled to immunity from damages. Some decisions, however, hold that the proof of such advice is not conclusive as to probable cause."
SECTION 67. MALICE. Finally, malice is an essential element in all actions for malicious prosecutions. Proof of probable cause makes out a prima facie case of malice, but this is not conclusive.
Malice is not in itself an act but a state of mind; it is an acting with wrong motives. Malice may consist of personal hatred or ill-will,"o or any improper purpose,“ or a reckless disregard of the rights of others."
SECTION 68. CONSPIRACY. The second great form of tort action involving 66 American & English Annotated
Mitchell, 13 Me., 439; 29 Am. Cases, Vol. VII, p. 859, note.
Dec., 514; Davis vs. McMillan, 65 Hamilton vs. Du Prie, 111 Ga.,
142 Mich., 391; 105 N. W., 862. 819; 35 S. E., 684; Carey vs. * Harphan vs. Whitney, 77 III., 32; Sheets, 67 Ind., 375; Humph
Christian vs. Hanna, 58 Mo. ries vs. Perker, 52 Me., 502.
App., 37; Forbes vs. Hagnan, en Sandell vs. Sherman, 107 Cal.,
75 Va., 168. 391; 40 Pac., 493; Cooper vs. 90 Cole vs. Andrews, 70 Minn., 230, Utterback, 37 Md., 282; Whit
73 N. W., 3; Blunk vs. Atchinfield vs. Westbrook, 46 Miss.,
son, etc. R. Co., 38 Fed., 311. 311; Eastman vs. Keasor, 44 11 Jenkins vs. Gillifan, 108 N. W., N. H., 518.
237; Mitchell v8. Hall, 111 67 Smith vs. Eastern Bldg., etc.
Mass., 492. Asso., 116 N. C., 73; 20 S. E., 13 Wills vs. Nayes, 12 Pick. 234; 963; Ramsey vs. Arrott, 64 Biering VS
Galveston First Tex., 320.
Natl. Bank, 69 Tex., 599, 7 8. * Heap vs. Parrish, 104 Ind., 36;
W., 90. 3°N. E., 549; Merriam ve.
malice, is that of conspiracy. Conspiracy, in its civil aspect (which is the only side of the subject to be here considered), closely resembles malicious prosecution in many respects. Early actions for conspiracy were almost entirely confined to cases where redress was sought on account of unlawful combinations for instituting criminal prosecutions.
The Civil action has at present a somewhat wider use. Conspiracy of itself is not a cause of action.” There must be an injury,"s and an unlawful act.78 The nature of the act is not changed by the alleged conspiracy. The number who unite to do the act cannot change its character from lawful to unlawful. The gist of a private action for the wrongful act of many is not the combination or conspiracy, but the damage done, or threatened to the plaintiff, by the acts of the defendants.77
This being so, the question arises: For what purpose is the allegation and proof of conspiracy important? The answer is that when the mischief contemplated is accomplished the conspiracy becomes important, as it may affect the means and measure of redress.78 It may be pleaded and proved as aggravating the wrong of which plaintiff complains, and to enable him to recover against all the defendants as joint tort-feasors.'' The party wronged may look beyond the actual participants in committing the 73 See Bigelow on Torts, p. 91.
E., 210, 15 Am. St. Rep., 62, 74 8 Cyc., 645.
P. A., 629. 76 Bulkeley vs. Storer, 2 Day
77 Boym Mfg. Co. V8. Hollis, 54
Minn., 223, 55 N. W., 1119, 40 (Conn.), 531; Martin vs. Leake,
Am. St. Rep., 314, 21 L. P. A., 93 Ill. App:, 44; Garing vs. Fraser, 76 Me., 37; Robertson
18 Robertson vs. Parks, 76 Md., 118, vs. Parks, 76 Md., 118, 24 Atl.,
24 Atl., 411.
70 Parker vs. Huntington, 2 Gray 40 Kimball vs. Harman, 34 Md., 407,
(Mass.), 124; Van Horn vs. 6 Am. Rep., 340; Boston vs.
Van Horn, 52, N. J. L., 284, 20 Simmons, 150 Mass., 401. 23 N.
Atl., 485, 10 L. R. A., 184.
injury, and join with them as defendants all who conspired to accomplish it.80
Actions for damages resulting from conspiracies have been sustained, based upon conspiracies for the following purposes among others: conspiracies to defraud in general, conspiracies to defraud creditors ,S2 conspiracies to prosecute maliciously; 83 conspiracies to falsely imprison,$4 and conspiracies to injure a person in his business, property or calling.85 SECTION 69. MALICIOUS USE OF ONE's Own PROP
It is a general rule in the law of England and America that where a person is dealing with his own property, he may act as maliciously as he desires towards his neighbor, this rule being based upon the idea that since a person has an absolute right to deal with his property as he desires the motive with which he acts cannot affect that right.86 A few cases take a somewhat contrary view, but the overwhelming weight of authority is in support of the above stated principles. 87
80 8 Cyc., 647; Robertson vs. Parks,
76 Md., 118.
That one of the defendants is
in an action of this nature.
645. 88 Dorems vs. Hennessy, 176 III.,
86 A contrary view is held in practi
cally all other countries, especially those whose law is based upon the Roman or Civil
law. 87 Walker vs. Cronin, 107 Mass.,
555; Wheatley vs. Baugh, 25 Pa. St., 528; Harewood vs. Benton, 32 Vt., 737. This subject is very thoroughly discussed in an article by Robert L. Williams, in the Central Law Journal, Vol. 67, pp. 23-24 (July 10, 1908).
SLANDER AND LIBEL.
SECTION 70. DEFINITIONS.
Closely allied with torts in which malice is an essential element are the wrongs of slander and libel. "The word, 'slander,' is the general and original word for all kinds of defamation, and at an early day in the history of the common law the term applied both to oral and written defamations of character. In this sense it has been defined to be the defaming of a man in his reputation by speaking or writing words from whence any injury in character or property arises, or may arise, to him of whom the words are used. But in modern usage it has been limited to defamation by words spoken, and in this sense may be defined as the speaking of base and defamatory words which tend to the prejudice of the reputation, office, trade, business, or means of getting a living of another.'11
Other definitions are:
"Oral or spoken defamatory words used by one person against another."4
The following definition of libel has frequently met with judicial approval: “A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures tending either to blacken the
* 25 Cyc., 248.
(Miss.), 698, 699.
(N. Y.), 15.
memory of one dead or the reputation of one who is living and expose him to public hatred, contempt, or ridicule."5
Other definitions of libel are as follows:
"Any such publication as holds a person up to scorn or ridicule, or to a stronger feeling of contempt or execration, or impairs his enjoyment of general society, or imputes or implies his commission of a crime not directly charged.”6
“Any publication that tends to degrade, disgrace, or injure the character of a person, or bring him into contempt, hatred or ridicule."
"Any false and malicious publication when expressed in printing or writing, or by signs or pictures which charges an offense, punishable by indictment, or which tends to bring an individual into public hatred, contempt, or ridicule or charges an act odious and disgraceful in society.'
SECTION 71. DISTINCTIONS BETWEEN SLANDER AND
From the definitions contained in the last section it has been seen that slander consists in oral words, while libel is either printed or written, or otherwise put into material form. A second distinction is that libel is both a crime and a tort, while slander is only a tort. Charges put in the form of a libel are actionable
• Commonwealth vs. Clap, 4 Mass.
163, 168; 3 Am. Dec., 212, quoted with approval in Rice V8. Simmons, 2 Harr. (Del.), 417; Clark vs. Binney, 2 Pick (Mass.), 113, 115; Mitchell vs. Bradstreet Co., 11 Mo., 226, 241; 22 S. W., 358; O'Brien vs. Bennett, 72 N. Y., App. Div. 367, 370, and many other
• Bain vs. Myrick, 88 Ind., 137,
138. Johnson vs. Stebbins, 5 Ind., 364,
367. 8 Iron Age Pub Co. vs. Crudup
85 Ala., 519, 520. • In a few states certain specified
slanderous statements are made. criminal by statute. Booker vs. State, 10 Ala., 30; 14 So. Rep., 561; Schultz vs. Hubner, 108 Mich., 274; 60 N. W.. 57,