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malice, the presumption of the existence of was effected. Walker v. State, 146 S. W. which is raised by the law in certain cases on 862, 864, 103 Ark. 336. certain proofs, and this is the malice describ

Under the Bankruptcy Act excepting ed in the same section as "an intent to do a from liability released by a discharge in wrongful act, established either by proof or bankruptcy those incurred for “malicious” inpresumption of law." This is a malice of jury to the property of another, a judgpleading and proof made necessary by the ex- ment for taking cattle without the consent of igencies of definitions of offenses against the the owner and appropriating them to the law, and may exist with malice in fact, but bankrupt's own use is not released. Bever v. may also exist independent thereof, and in Swecker, 116 N. W. 704, 705, 706, 138 Iowa, some instances is conclusively presumed

721. against a defendant, while in others the pre

In a legal sense, malice has a meaning sumption is rebuttable. Davis v. Hearst, 116

different from its popular signification. Acts Pac. 530, 537, 160 Cal. 143.

willfully and designedly done, which are un“Malice which is presumed,” or “malice lawful, are “malicious” in respect to those in law,” as distinguished from "malice in to whom they are injurious. One may prosfact," "is not personal hate or ill will of one ecute a laudable purpose with an honest inperson toward another; it refers to that tention, but in such a manner, and in such state of mind which is reckless of law and disregard of the rights of others, as to render of the legal rights of the citizen in a person's his acts unlawful. Prosecutions may be inc nduct toward that citizen." Shoemaker v. stituted and pursued with pure motives, to Sonju, 108 N. W. 42, 44, 15 N. D. 518, 11 suppress crimes, but so regardless of estabAnn. Cas. 1173.

lished forms of law, and of judicial proceedOne has an inherent right to dispose of ings, as to render the transactions illegal and his labor, which can only be lawfully inter- malicious. The general motive may be upfered with by one acting in the exercise of an right and commendable, while the particular equal or superior right which comes in con- acts in reference to others, may be malicious, flict therewith, and an intentional interfer in the legal acceptation of the term, so that ence with such right without lawful justifi- an act may be malicious in a legal sense, cation is “malicious in law,” even if it springs which is not prompted or characterized by from good motives and is without express mal- malevolence corrupt design. Page ice. Berry v. Donovan, 74 N. E. 603, 604, 188 Cushing, 38 Me. 523, 526. Mass. 353, 5 L. R. A. (N. S.) 899, 108 Am. St.

In a prosecution under a statute making Rep. 499, 3 Ann. Cas. 738.

willful and malicious misconduct in office In an action for alienation of a husband's a misdemeanor, the omission of the word affections, malice is a jury question of fact, / “malicious" from the information is immateand not one of law. Kelso v. Kelso, 86 N. E. rial, when the acts complained of necessarily 1001, 43 Ind. App. 115.

involve a willful disregard of the obliga

tions owed by the officer to the public. State MALICIOUS

v. Dixon, 103 Pac. 130, 131, 80 Kan. 650. “The legal meaning of the term 'mali- Pen. Code, Š 242, defines criminal libel cious' is the unintentional doing of a wrong- as a malicious publication, section 244 proful act without just cause or excuse." Mc-vides that a publication having such tendency Namara v. St. Louis Transit Co., 81 S. W. is deemed malicious if no justification or ex880, 881, 182 Mo. 676, 66 L. R. A. 486. cuse is shown, and section 718, subd. 3, pro

vides that the terms “malice" and "maliWhatever is done willfully and purposely, be it at. the same time wrong and unlawful, cious” each import an evil intent, wish, or deis, in legal contemplation, malicious. Ander- sign to annoy or injure another. Held, that son V. International Harvester Co. of Ameri- a corporation may be convicted of criminal ca, 116 N. W. 101, 102, 104 Minn. 49, 16 L. R. libel; the evil intent of its agents who pub

lished the libel being attributed to it. PeoA. (N. S.) 440.

ple v. Star Co., 120 N. Y. Supp. 498, 500, 135 Any unlawful act, done willfully and App. Div. 517. purposely, to the injury of another, as against

"The term 'malicious,' used in this conthat person is "malicious" in a legal sense, as such term is used in the law of malicious nection (procuring a breach of contract), is prosecution. Plummer v. Collins (Del.) 77 malicious when the thing done is with the

to be given a liberal meaning. The act is Atl. 750, 751, 1 Boyce, 281.

knowledge of the plaintiff's rights, and with Kirby's Dig. § 1655, provides that if any the intent to interfere therewith.

It is a person shall maliciously or contemptuously wanton interference with another's contracdisturb or disquiet any congregation assem- tual rights. Ineffective persuasion to induce bled in any church for religious worship, etc., another to violate his contract would not of he shall, on conviction, be fined, etc. Held, itself be actionable, but if the persuasion be that the words “malicious” and “contemptu- used for the purpose of injuring the plaintiff ous” refer to the manner of disturbance, and or benefiting the defendant at the expense of not to the intent with which the disturbance the plaintiff, with a knowledge of the subsistence of the contract, it becomes a malicious ed meaning peculiar to such statutes, implyact, and, if injury ensues from it, a cause ing that the act to which it relates must have of action accrues to the injured party.” Em resulted from actual ill will or revenge. The ploying Printers' Club v. Doctor Blosser Co., special meaning noted had its origin in Eng50 S. E. 353, 356, 122 Ga. 509, 69 L. R. A. land in prosecutions under the "Black Act" 90, 106 Am. St. Rep. 137, 2 Ann. Cas. 694. (St. 9 Geo. I, c. 22), enacted in 1722, so called

The word “malicious,” in Rev. St. 1899, because it was designed to repress the depre$ 1959 [Ann. St. 1906, p. 1325), which makes dations of marauders calling themselves it a misdemeanor for any one to "willfully “blacks." The act provided that, if any perand maliciously, or wantonly and without son or persons shall unlawfully and maliright,” enter the premises of another and de- ciously kill or wound any cattle, etc., such stroy any tree, etc., means an unlawful act, persons shall be adjudged guilty of felony. willfully or purposely done to the injury of It was held that in prosecutions under this another, and to authorize the conviction of one act for injuries to cattle, in order to bring for willfully and maliciously injuring trees an offender within the law, the malice must of another, the malicious intent must be be directed against the owner of the cattle, found. State v. Graeme, 108 S. W. 1131, and not merely against the animal itself. 1133, 130 Mo. App. 138.

In the United States most statutes prescrib

ing a penalty for the malicious destruction of The word "malicious," as used in Cr. Code, div. 1, $ 203 (Hurd's Rev. St. 1908, p. to warrant the inference that they were mod

property are sufficiently like those of England 752, c. 38), prohibiting the malicious wound eled on them, and for this reason they have ing of any domestic animal, the property of generally, but not always, been given the another, is not used in the sense of "wrong. same construction. But the effect of Crimes fully, intentionally and without just cause Act, § 112 (Gen. St. 1901, $ 2105), providing or excuse," but as importing actual malice that every punishment and forfeiture impostowards the owner, as distinguished from ed on any person maliciously committing any a spirit of cruelty toward the animal. Peo- offense prohibited by the provision of pre ple v. Jones, 89 N. E. 752, 756, 241 Ill. 482, 16 ceding sections shall equally apply and be in Ann. Cas. 332 (citing 5 Words and Phrases, force, whether the offense shall be committed p. 4307).

from malice conceived against the owner of Under Rev. St. 1887, § 7153, making the property in respect to which it shall be com"malicious” killing, maiming, or wounding of mitted or otherwise, is to take from the word a dog an offense, the word “malicious," as “malicious” the specific meaning that had used, is not equivalent to the word "wrong- been attributed to it in laws against the deful,” as used in the law of torts. The former struction of property, and restore it to the word means more than the latter. It neces-usual sense in which it is used in criminal sarily involves crime, while the latter does statutes. State v. Boies, 74 Pac. 630, 68 Kan. not necessarily do so. State v. Churchill, 98 167, Ann. Cas. 491. Pac. 853, 857, 15 Idaho, 645, 16 Ann. Cas. 947 (citing Chappell v. State, 35 Ark. 345; MALICIOUS ABUSE OF PROCESS State v. Hussey, 60 Me. 410, 11 Am. Rep. 209;

See, also, Abuse of Process. 2 Wharton's Crim. Law, 88 1068–1070 ; State

Malicious prosecution distinguished, see v. Phipps, 64 N. W. 411, 95 Iowa, 491; Unit

Malicious Prosecution. ed States v. Gideon, 1 Minn. 292 [Gil. 226]; State v. Rector, 34 Tex. 565).

Regular use of civil process does not be

come an actionable malicious abuse of process “Willful,” in a statute against libel, is by being used with a bad intent. To escovered by "malicious" in an indictment; tablish actionable malicious abuse of civil the latter meaning all that the former does, process, there must appear an ulterior purand more. Glover v. People, 68 N. E. 464, pose and the improper use of process. Keith466, 204 Ill. 170 (quoting and adopting defini- ley v. Stevens, 87 N. E. 375, 376, 238 Ill. 199, tion in 1 Bishop, Crim. Proc. [3d Ed.) 8 613). 128 Am. St. Rep. 120.

Under Section 245 of the Penal Code, The "malicious suing out of an attachproviding that any malicious publication by ment" contemplates a wrongful motive in the picture, effigy, or sign, which exposes a per- securing of the issuance of the attachment son to contempt, ridicule, or obloquy, is a from want of probable cause or other reason, libel, “malicious” means simply "intention while an "abuse of process" contemplates the al and willful." Roberson v. Rochester Fold- use of it after its issue for a wrongful puring Box Co., 64 N. E. 442, 448, 171 N. I. pose, and a party cannot have damages for 538, 59 L. R. A. 478, 89 Am. St. Rep. 828. the latter offense unless the process issued The word "malicious," as ordinarily em

was perverted to a purpose not intended or ployed in criminal statutes, is the equivalent contemplated by the law. Wright v. Harris, of wrongful, intentional, and without just 76 S. E. 489, 492, 160 N. C. 542. cause or excuse; but, as used in many stat- The regular and legitimate use of proutes directed against the unlawful destruc- cess, though with a bad intent, is not a tion of property, it is held to have a restrict. I "malicious abuse of process." Two elements are necessary to constitute malicious abuse, which impair utility or materially diminish of legal process: First, the existence of an value. Malice, express or implied, is a neculterior purpose ; and, second, an act in the essary ingredient of the offense of malicious use of a process not proper in the regular mischief, though the malice need not be prosecution of the proceeding. To constitute specifically to the owner of the property demalicious abuse of process" lawfully issued, stroyed or injured. Willful or wanton cruelit must be used for a purpose not intended ty, or injury to or destruction of property, by law. Ingalls v. Christopherson, 114 N. committed under such circumstances as to W. 704, 705, 21 S. D. 574 (quoting 1 Cooley, indicate a malignant spirit of mischief, is Torts [3d Ed.] 354).

sufficient to constitute the offense of maliAn action for "malicious use of process" cious mischief. In a prosecution for malilies, though the process was lawfully issued cious mischief, malice may be shown by proof on a valid judgment for a just cause, and is of willful and wanton acts, or it may be invalid in form; the wrong being the illegal ferred from attendant facts and circumstancand malicious abuse of the power conferred es. The sawing down of telegraph poles by by the judgment and the writ. Gonsouland defendants themselves, or by some unknown v. Rosomano, 176 Fed. 481, 486, 100 C. C. A. person through their procurement, would 97.

constitute malicious mischief; but if they, ei

ther as principal or accomplice, did not deMALICIOUS ACT

stroy or injure the poles or wires of the comIn general a malicious act involves all pany, acts of resistance or interference, that is usually understood by the term "will- which they may have committed, would not ful," and is further marked by either batred be sufficient to constitute the offense. State or ill will toward the party injured, or by v. McCallister (Del.) 76 Atl. 226, 229, 7 Pennesuch utter recklessness and disregard of the will, 301. rights of others as denotes a corrupt or

Under Revisal 1905, $ 3621, making it a malevolent disposition. State v. Willing, 105 felony for one to maliciously assault another N. W. 355, 356, 129 Iowa, 72.

with a deadly weapon by waylaying, etc., and MALICIOUS ATTACHMENT

section 3291, defining a misdemeanor as an "Malicious attachment” of corporate prop

offense not punishable by death or imprisonerty is not a personal tort, but gives rise to ment in the state's prison, and Acts 1870–71, a cause of action for injury to property, p. 94, c. 43, punishing by fine or imprisonwhich passes to the trustee in bankruptcy of ment a person convicted of an assault, with

or without intent to kill, a prosecution for an the corporation. Hansen Mercantile Co. v. Wyman, Partridge & Co., 117 N. W. 926, 927, assault with a deadly weapon with intent to

kill is a prosecution for a misdemeanor, and 105 Minn. 491, 31 L. R. A. (N. S.) 727.

not for malicious mischief, defined by section MALICIOUS INJURY

2676 as willfully injuring personal property See Willful and Malicious Injury.

with malice to the owner, and is barred in To constitute an offense under Rev. Pen. misdemeanors, except for “malicious mis

two years by section 3147, providing that all Code, $ 712, punishing the “malicious injury chief, and other malicious misdemeanors,” or destruction of property,” the act must not shall be presented within two years after the only be done willfully, but for the purpose of commission of the same, the words "other avenging some wrong sustained by the per- malicious misdemeanors” being intended to son charged with the offense. One who, on describe an offense of which malice is a becoming angry without cause, destroyed without justification and in a spirit of wan- cious mischief. State v. Frisbee, 55 8. E.

necessary ingredient, as in the case of malitonness the property of another, violated Rev. Pen. Code, & 712, punishing the malicious in- 722, 724, 142 N. C. 671. jury or destruction of property. State v.

MALICIOUS PROSECUTION Tarlton, 118 N. W. 706, 708, 22 S. D. 495.

Malice in malicious prosecution, see MalA willful act is one done subject to the

ice. volition and will of the doer and intentionally, and a willful or malicious injury is one "Malicious prosecution," as a ground of caused by design. Willfulness and malice action, must be both malicious and without alike import intent, and the characteristic probable cause. Kendrick Cypert, 10 element of “willful" or "malicious injury” Humph. (29 Tenn.) 291, 294; Hegan Mantel is the design to injure, either actually en- Co. v. Alford (Ky.) 114 S. W, 290, 291. tertained or to be implied from the conduct and circumstances. Sharkey V. Skilton, 77

A malicious prosecution is one begun in Atl. 950, 951, 83 Conn. 503.

malice without probable cause to believe that

it can succeed, and which finally fails. MALICIOUS MISCHIEF

Schmidt v. Medical Society of New York Malice in malicious mischief, see Malice. County, 127 N. Y. Supp. 365, 367, 142 App.

Malicious mischief includes all malicious Div. 635; Burt v. Smith, 73 N. E. 495, 496, physical injuries to the rights of another, 181 N. Y. 1, 2 Ann. Cas. 576.

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To recover for malicious prosecution, it "Malicious prosecution" is "a wantoa must be averred and proved that the prosecu- prosecution made by a prosecutor in a crimtion was instituted maliciously and without inal proceeding, without probable cause, by probable cause. Wehmeyer v. Mulvihill, 130 a regular process and proceeding, which the S. W. 681, 683, 150 Mo. App. 197.

facts do not warrant, as appears by the reTo constitute malicious prosecution, the sult.” Harrington v. Tibbet, 76 Pac. 816, arrest complained of must have been made 817, 143 Cal. 78 (quoting Bouv. Dict. (Rawles by legal process and the prosecution must Revised Ed.]). have been instigated by malice and without Proof, or evidence tending to prove the probable cause. McIntosh v. Bullard, Earn- following facts, is essential to authorize the heart & Magness, 129 S. W. 85, 87, 95 Ark. submission of a cause for “malicious prosecu227.

tion" to a jury: First, the institution or prosIn order to recover in an action for ecution by the defendant of the proceedings "malicious prosecution,” plaintiff must allege complained of; second, that the proceedings and prove that there was a prosecution; that have finally terminated in favor of the plainit terminated in his favor; that defendants tiff; third, want of probable cause on the were the prosecutors; that they were actu- part of defendant to believe plaintiff guilty ated by malice; that there was want of proba- of the offense charged; fourth, malice on the ble cause, and the damages sustained by part of defendant in instituting or continuplaintiff. Russell v. Chamberlain, 85 Pac. ing the prosecution. Where a street car pas926, 927, 12 Idaho, 299, 9 Ann. Cas. 1173. senger tendered a defaced nickel, which was

To maintain an action for malicious all the money he had, and the conductor reprosecution, plaintiff must show that the fused to receive it, and started to eject him, prosecution was instigated by defendant, and the passenger, on reaching the door, ofthat it has been determined in plaintiff's fa- fered resistance and prevented his removal vor, that there was no probable cause, and by a scuffle, but without fighting or offering that defendant acted from malice. Orefice to fight, or violent language, and the conv. Savarese, 113 N. Y. Supp. 175, 176, 61 Misc. ductor called a policeman and had the pasRep. 88.

senger arrested upon the charge of disturbTo sustain a motion for “malicious pros- ing the peace, the question of legal malice, ecution,” plaintiff must show that he was which might be inferred from the fact that prosecuted for a criminal offense at the insti- the prosecution was intentional, wrongful, gation of defendant, who had no probable and without justification or excuse, was for cause for the prosecution, and who acted the jury. Ruth v. St. Louis Transit Co., 71 with malice, and that the prosecution termi- S. W. 1055, 1058, 98 Mo. App. 1. nated in an acquittal. A sufficient termina- “Malice and the want of probable cause tion of the prosecution in favor of plaintiff must both concur to support the charge of is established when he is discharged by a ‘malicious prosecution. Neither is alone suffimagistrate, either because of insufficiency of cient.” A verdict for exemplary damages evidence, or because defendant withdrew the for a wrongful sequestration is authorized prosecution or failed to make any complaint only where the writ was sued out wrongfulor to appear. Lack of probable cause is not ly, maliciously, and without probable cause. shown by the abandonment of the prosecu- Lynch v. Burns (Tex.) 79 S. W. 1084, 1086 tion, by the dismissal of the charge by the (quoting and adopting definition in Culbertprosecutor, by the voluntary discontinuance son v. Cabeen, 29 Tex. 256). of the prosecution, or by the dismissal for want of prosecution. Sasse v. Rogers, 81 essential elements which must concur in an

Malice and want of probable cause are N. E. 590, 591, 40 Ind. App. 197 (citing Cott- action for "malicious prosecution," although rell v. Cottrell, 25 N. E. 905, 126 Ind. 184; the former may be an inference from proof of Sayles v. Briggs, 4 Metc. [45 Mass.] 421; facts establishing want of probable cause. Moyle v. Drake, 6 N. E. 520, 141 Mass. 238; Jordan v. Chicago & A. Ry. Co., 79 S. W. Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 1155, 1158, 105 Mo. App. 446 (citing Stubbs 35; Cockfield v. Braveboy [S. C.] 2 MeMul. 270, 39 Am. Dec. 123; Flickinger v. Wagner, Sharpe v. Johnston, 59 Mo. 557).

v. Mulholland, 67 S. W. 650, 168 Mo. 47; 46 Md. 580). “In an action for ‘malicious prosecution,'

"Malicious prosecution" has been defined it is incumbent upon the plaintiff to show in England as "the malicious institution that there was no probable cause for the against another of criminal, bankruptcy, or

liquidation proceedings without reasonable prosecution, and also that the defendant was actuated by malice in instituting such prose- and probable cause," and not confined to the cution. There must be want of probable malicious institution of proceedings strictly cause and malice. If probable cause is criminal. King v. D. Sullivan & Co. (Tex.) shown, then the question of malice becomes 92 S. W. 51, 52 (quoting and adopting defini

tion in Fraser, Torts, 121). immaterial, because, there being probable cause, one of the essential elements neces- To maintain an action for "malicious sary to maintain the action is disproved." prosecution,” three things are necessary to Miller v. Lai, 71 Atl. 63, 77 N. J. Law, 135.' be made out by the plaintiff: First, a want of probable cause; second, malice of the de- The want of lawful authority is an essen

in and that malice may be implied from the ment. Malice and want of probable cause want of probable cause, but this implication are the essentials in an action for malicious may be explained and repelled by facts and prosecution. Roberts v. Thomas, 121 S. W. circumstances. Jones v. Louisville & N. R. 961, 962, 135 Ky. 63, 21 Ann. Cas. 456. Co. (Ky.) 96 S. W. 793 (citing Wood v. Weir

The distinction between "false imprison[Ky.) 5 B. Mon. 544).

ment" and "malicious prosecution" is "that Malice and want of probable cause must | 'false imprisonment' is some interference coexist to warrant an action for “malicious with the personal liberty of the plaintiff prosecution," and, where it is shown that which is absolutely unlawful and without the prosecutor consulted the prosecuting at- authority. “Malicious prosecution' is in protorney in good faith, communicated to him curing the arrest or prosecution under lawall the ascertainable facts, and acted on his ful process on the forms of law, but from advice in instituting the criminal proceeding, malicious motives and without probable he should be exonerated. Pinson v. Camp-cause." A presiding judge of an election, bell, 101 S. W. 621, 624, 124 Mo. App. 260. who, without authority, arrests and detains a To support an action for “malicious pros. he is a judicial officer and has a judicial dis

voter, is liable for false imprisonment, though ecution," plaintiff must show that the one procuring his arrest not only acted mali- cretion within prescribed limits. Smyth v. ciously but without probable cause. Malice

State, 103 S. W. 899, 901, 51 Tex. Cr. R. 408 may be inferred from want of probable (quoting and adopting the definition in Hercause, but probable cause cannot be inferred zog v. Graham, 9 Lea (77 Tenn.) 152). from anything else. Where one, before pro- An amendment of a count of a complaint curing the arrest of another, laid all the for “malicious prosecution" by striking out facts on which he based his prosecution be- an allegation that plaintiff was arrested on fore a competent attorney, obtained his ad- a warrant, and substituting an allegation rice that the prosecution was legal, and in that she was arrested and held without a good faith acted on the advice, it is a com- warrant, changed the cause of action stated, plete defense to an action for malicious under the law of Alabama, from one in case prosecution. National Life & Accident Ins. for “malicious prosecution" to one in trespass Co. v. Gibson (Ky.) 101 S. W. 895, 897, 12 for "false imprisonment,” and rendered the L. R. A. (N. S.) 717.

charge of the court, based on the theory

that the count was for "malicious prosecuTo justify an action for “malicious pros

Western ecution," it must be shown, not only that Union Telegraph Co. v. Thompson, 144 Fed.

tion," misleading and erroneous. there was a lack of probable cause for the criminal prosecution complained of, but that 578, 580, 75 C. C. A. 334. it was instigated maliciously. Van Meter v. "False imprisonment" is distinguished Bass, 90 Pac. 637, 638, 40 Colo. 78.

from “malicious prosecution” in that it is, as In a suit for malicious prosecution, the defined by Pen. Code, $ 236, an unlawful vioessential elements are the commencement or

lation of another's personal liberty, an uncontinuance of a criminal or civil proceed- lawful arrest or detention of one without ing, that defendant caused it to be instituted warrant or by an illegal warrant, or a waror continued, its bona fide termination in rant illegally executed, while if the imprisonfavor of plaintiff, the absence of probable inent is under legal process, but the action cause, the presence of malice, and damages to has been commenced and carried on malidefendant. Sawyer v. Shick, 120 Pac. 581, 30 ciously and without probable cause, it is a Okl. 353.

malicious prosecution. Donativ. Righetti,

97 Pac. 1128, 1129, 9 Cal. App. 45. In an action for malicious prosecution, plaintiff is bound to prove that there was a

Where a peace officer arrests a person prosecution instituted against him by de- without process and takes him before a magisfendant as alleged, that it was malicious and trate, before whom he files a written comwithout probable cause, that it terminated in plaint against the prisoner, describing no ofplaintiff's favor, and that by reason thereof fense against the law, and after hearing the be sustained damage. Plummer v. Collins person is set at liberty, an action for “ma(Del.) 77 Atl. 750, 751, 1 Boyce, 281.

licious prosecution" does not lie, but the par

ty has immediate cause of action for false False imprisonment distinguished

imprisonment. Hackler v. Miller, 112 N. W.

303, 79 Neb. 206. There is a well-marked distinction between an action for false imprisonment and The two actions of "false imprisonment" an action for "malicious prosecution.” An and "malicious prosecution” are quite disaction for false imprisonment may be main tinct and different. "False imprisonment is tained when the imprisonment is without le- the unlawful violation of the personal libergal authority, but, where there is a valid or ty of another” (Pen. Code, $ 236), the interapparently valid power to arrest, the remedy ference with the personal liberty of the plainis by an action for malicious prosecution. ' tiff in a way which is absolutely unlawful

3 WDS. & P.2D SER.–16

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