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 nec-
ulterior 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 de-
"malicious abuse of process" lawfully issued, stroyed or injured. Willful or wanton cruel-
it 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 mali-
cious mischief. In a prosecution for mali-
cious mischief, malice may be shown by proof
of willful and wanton acts, or it may be in-
ferred from attendant facts and circumstanc-
es. The sawing down of telegraph poles by
defendants themselves, or by some unknown
person through their procurement, would
constitute malicious mischief; but if they, ei-
ther as principal or accomplice, did not de-
stroy or injure the poles or wires of the com-
pany, acts of resistance or interference,
which they may have committed, would not
be sufficient to constitute the offense. State
v. McCallister (Del.) 76 Atl. 226, 229, 7 Penne-
will, 301.

An action for "malicious use of process" lies, though the process was lawfully issued on a valid judgment for a just cause, and is valid in form; the wrong being the illegal and malicious abuse of the power conferred by the judgment and the writ. Gonsouland v. Rosomano, 176 Fed. 481, 486, 100 C. C. A.

97.

MALICIOUS ACT

In general a malicious act involves all
that is usually understood by the term "will-
ful," and is further marked by either hatred
or ill will toward the party injured, or by
such utter recklessness and disregard of the
rights of others as denotes a corrupt or
malevolent disposition. State v. Willing, 105

N. W. 355, 356, 129 Iowa, 72.
MALICIOUS ATTACHMENT

"Malicious attachment" of corporate prop-
erty is not a personal tort, but gives rise to
a cause of action for injury to property,
which passes to the trustee in bankruptcy of
the corporation. Hansen Mercantile Co. v.
Wyman, Partridge & Co., 117 N. W. 926, 927,
105 Minn. 491, 31 L. R. A. (N. S.) 727.

MALICIOUS INJURY

See Willful and Malicious Injury.
To constitute an offense under Rev. Pen.
Code, § 712, punishing the "malicious injury
or destruction of property," the act must not
only be done willfully, but for the purpose of
avenging some wrong sustained by the per-
son charged with the offense. One who, on
becoming angry without cause, destroyed
without justification and in a spirit of wan-
tonness the property of another, violated Rev.
Pen. Code, § 712, punishing the malicious in-
jury or destruction of property. State v.
Tarlton, 118 N. W. 706, 708, 22 S. D. 495.

A willful act is one done subject to the volition and will of the doer and intentionally, and a willful or malicious injury is one caused by design. Willfulness and malice alike import intent, and the characteristic element of "willful" or "malicious injury" is the design to injure, either actually entertained or to be implied from the conduct and circumstances. Sharkey v. Skilton, 77 Atl. 950, 951, 83 Conn. 503.

MALICIOUS MISCHIEF

Malice in malicious mischief, see Malice. Malicious mischief includes all malicious physical injuries to the rights of another,

Under Revisal 1905, § 3621, making it a felony for one to maliciously assault another with a deadly weapon by waylaying, etc., and section 3291, defining a misdemeanor as an offense not punishable by death or imprisonment in the state's prison, and Acts 1870–71, P. 94, c. 43, punishing by fine or imprisonment a person convicted of an assault, with or without intent to kill, a prosecution for an assault with a deadly weapon with intent to kill is a prosecution for a misdemeanor, and not for malicious mischief, defined by section 2676 as willfully injuring personal property with malice to the owner, and is barred in misdemeanors, except for "malicious mistwo years by section 3147, providing that all chief, and other malicious misdemeanors," shall be presented within two years after the commission of the same, the words "other malicious misdemeanors" being intended to describe an offense of which malice is a cious mischief. State v. Frisbee, 55 S. E. necessary ingredient, as in the case of mali722, 724, 142 N. C. 671.

MALICIOUS PROSECUTION

Malice in malicious prosecution, see Malice.

"Malicious prosecution," as a ground of action, must be both malicious and without probable cause. Kendrick v. Cypert, 10 Humph. (29 Tenn.) 291, 294; Hegan Mantel Co. v. Alford (Ky.) 114 S. W. 290, 291.

A malicious prosecution is one begun in malice without probable cause to believe that it can succeed, and which finally fails. Schmidt v. Medical Society of New York County, 127 N. Y. Supp. 365, 367, 142 App. Div. 635; Burt v. Smith, 73 N. E. 495, 496, 181 N. Y. 1, 2 Ann. Cas. 576.

To recover for malicious prosecution, it must be averred and proved that the prosecution was instituted maliciously and without probable cause. Wehmeyer v. Mulvihill, 130 S. W. 681, 683, 150 Mo. App. 197.

To constitute malicious prosecution, the arrest complained of must have been made by legal process and the prosecution must have been instigated by malice and without probable cause. McIntosh v. Bullard, Earnheart & Magness, 129 S. W. 85, 87, 95 Ark.

227.

In order to recover in an action for "malicious prosecution," plaintiff must allege and prove that there was a prosecution; that it terminated in his favor; that defendants were the prosecutors; that they were actuated by malice; that there was want of probable cause, and the damages sustained by plaintiff. Russell v. Chamberlain, 85 Pac. 926, 927, 12 Idaho, 299, 9 Ann. Cas. 1173.

To maintain an action for malicious prosecution, plaintiff must show that the prosecution was instigated by defendant, that it has been determined in plaintiff's favor, that there was no probable cause, and that defendant acted from malice. Orefice v. Savarese, 113 N. Y. Supp. 175, 176, 61 Misc. Rep. 88.

"Malicious prosecution" is "a wanton prosecution made by a prosecutor in a criminal proceeding, without probable cause, by a regular process and proceeding, which the facts do not warrant, as appears by the result." Harrington v. Tibbet, 76 Pac. 816, 817, 143 Cal. 78 (quoting Bouv. Dict. [Rawles' Revised Ed.]).

Proof, or evidence tending to prove the following facts, is essential to authorize the submission of a cause for "malicious prosecution" to a jury: First, the institution or prosecution by the defendant of the proceedings complained of; second, that the proceedings have finally terminated in favor of the plaintiff; third, want of probable cause on the part of defendant to believe plaintiff guilty of the offense charged; fourth, malice on the part of defendant in instituting or continuing the prosecution. Where a street car passenger tendered a defaced nickel, which was all the money he had, and the conductor refused to receive it, and started to eject him, and the passenger, on reaching the door, offered resistance and prevented his removal by a scuffle, but without fighting or offering to fight, or violent language, and the conductor called a policeman and had the passenger arrested upon the charge of disturbing the peace, the question of legal malice, which might be inferred from the fact that the prosecution was intentional, wrongful, and without justification or excuse, was for the jury. Ruth v. St. Louis Transit Co., 71

To sustain a motion for "malicious prosecution," plaintiff must show that he was prosecuted for a criminal offense at the instigation of defendant, who had no probable cause for the prosecution, and who acted with malice, and that the prosecution termi- S. W. 1055, 1058, 98 Mo. App. 1. nated in an acquittal. A sufficient termination of the prosecution in favor of plaintiff is established when he is discharged by a magistrate, either because of insufficiency of evidence, or because defendant withdrew the prosecution or failed to make any complaint or to appear. Lack of probable cause is not shown by the abandonment of the prosecution, by the dismissal of the charge by the prosecutor, by the voluntary discontinuance of the prosecution, or by the dismissal for want of prosecution. Sasse v. Rogers, 81 N. E. 590, 591, 40 Ind. App. 197 (citing Cottrell v. Cottrell, 25 N. E. 905, 126 Ind. 184; Sayles v. Briggs, 4 Metc. [45 Mass.] 421; Moyle v. Drake, 6 N. E. 520, 141 Mass. 238; Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35; Cockfield v. Braveboy [S. C.] 2 McMul.

"Malice and the want of probable cause must both concur to support the charge of 'malicious prosecution.' Neither is alone sufficient." A verdict for exemplary damages for a wrongful sequestration is authorized only where the writ was sued out wrongfully, maliciously, and without probable cause. Lynch v. Burns (Tex.) 79 S. W. 1084, 1086 (quoting and adopting definition in Culbertson v. Cabeen, 29 Tex. 256).

270, 39 Am. Dec. 123; Flickinger v. Wagner,

46 Md. 580).

Malice and want of probable cause are essential elements which must concur in an action for "malicious prosecution," although the former may be an inference from proof of facts establishing want of probable cause. Jordan v. Chicago & A. Ry. Co., 79 S. W. 1155, 1158, 105 Mo. App. 446 (citing Stubbs Sharpe v. Johnston, 59 Mo. 557). v. Mulholland, 67 S. W. 650, 168 Mo. 47;

"Malicious prosecution" has been defined in England as "the malicious institution against another of criminal, bankruptcy, or liquidation proceedings without reasonable malicious institution of proceedings strictly and probable cause," and not confined to the criminal. King v. D. Sullivan & Co. (Tex.)

"In an action for 'malicious prosecution,' it is incumbent upon the plaintiff to show that there was no probable cause for the prosecution, and also that the defendant was actuated by malice in instituting such prosecution. There must be want of probable cause and malice. If probable cause shown, then the question of malice becomes 92 S. W. 51, 52 (quoting and adopting definiimmaterial, because, there being probable tion in Fraser, Torts, 121).

is

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 be made out by the plaintiff: First, a want

Miller v. Lai, 71 Atl. 63, 77 N. J. Law, 135.

ment. Malice and want of probable cause are the essentials in an action for malicious prosecution. Roberts v. Thomas, 121 S. W. 961, 962, 135 Ky. 63, 21 Ann. Cas. 456.

of probable cause; second, malice of the de- [The want of lawful authority is an essenfendant; and, third, damage to plaintiff- tial element in an action for false imprisonand that malice may be implied from the want of probable cause, but this implication may be explained and repelled by facts and circumstances. Jones v. Louisville & N. R. Co. (Ky.) 96 S. W. 793 (citing Wood v. Weir [Ky.] 5 B. Mon. 544).

The distinction between "false imprisonment" 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." bell, 101 S. W. 621, 624, 124 Mo. App. 260.

Malice

A presiding judge of an election, who, without authority, arrests and detains a he is a judicial officer and has a judicial disvoter, is liable for false imprisonment, though

An amendment of a count of a complaint

To support an action for "malicious prosecution," plaintiff must show that the one procuring his arrest not only acted mali-cretion within prescribed limits. Smyth v. ciously but without probable cause. 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 procuring the arrest of another, laid all the for "malicious prosecution" by striking out facts on which he based his prosecution before a competent attorney, obtained his advice that the prosecution was legal, and in good faith acted on the advice, it is a complete defense to an action for malicious prosecution. National Life & Accident Ins. Co. v. Gibson (Ky.) 101 S. W. 895, 897, 12 L. R. A. (N. S.) 717.

To justify an action for "malicious prosecution," it must be shown, not only that there was a lack of probable cause for the criminal prosecution complained of, but that it was instigated maliciously. Van Meter v. Bass, 90 Pac. 637, 638, 40 Colo. 78.

In a suit for malicious prosecution, the

essential elements are the commencement or

an allegation that plaintiff was arrested on a warrant, and substituting an allegation that she was arrested and held without a warrant, changed the cause of action stated, under the law of Alabama, from one in case for "malicious prosecution" to one in trespass for "false imprisonment," and rendered the charge of the court, based on the theory that the count was for "malicious prosecution," misleading and erroneous. Western Union Telegraph Co. v. Thompson, 144 Fed. 578, 580, 75 C. C. A. 334.

"False imprisonment" is distinguished from "malicious prosecution" in that it is, as defined by Pen. Code, § 236, an unlawful violation 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 probablement is under legal process, but the action cause, the presence of malice, and damages to defendant. Sawyer v. Shick, 120 Pac. 581, 30

Okl. 353.

In an action for malicious prosecution, plaintiff is bound to prove that there was a prosecution instituted against him by defendant as alleged, that it was malicious and without probable cause, that it terminated in plaintiff's favor, and that by reason thereof he sustained damage. Plummer v. Collins (Del.) 77 Atl. 750, 751, 1 Boyce, 281.

False imprisonment distinguished

There is a well-marked distinction between an action for false imprisonment and an action for "malicious prosecution." An action for false imprisonment may be maintained when the imprisonment is without legal authority, but, where there is a valid or apparently valid power to arrest, the remedy is by an action for malicious prosecution. 3 WDS. & P.2D SER.-16

has been commenced and carried on maliciously and without probable cause, it is a malicious prosecution. Donati v. Righetti, 97 Pac. 1128, 1129, 9 Cal. App. 45.

Where a peace officer arrests a person without process and takes him before a magistrate, before whom he files a written complaint against the prisoner, describing no offense against the law, and after hearing the person is set at liberty, an action for "malicious prosecution" does not lie, but the party has immediate cause of action for false imprisonment. Hackler v. Miller, 112 N. W. 303, 79 Neb. 206.

The two actions of "false imprisonment" and "malicious prosecution" are quite distinct and different. "False imprisonment is the unlawful violation of the personal liberty of another" (Pen. Code, § 236), the interference with the personal liberty of the plaintiff in a way which is absolutely unlawful

SEVERANCE

FREEHOLD

FROM

The words "malicious severance from the freehold," in Kirby's Dig. § 1901, prohibiting the malicious severance from the freehold of another of anything attached thereto, do not cover the act of a tenant in removing from the outside of a window a for rent sign placed there by the landlord, but the words refer to the severance of things attached to the freehold as a part thereof, such as produce of the soil, timber, structures, or fixtures thereto. Whipple v. Gorsuch, 101 S. W. 735, 737, 82 Ark. 252, 10 L. R. A. (N. S.) 1133, 12 Ann. Cas. 38.

and without authority. "Malicious prosecu- | after it issues, the latter is grounded on a tion" is procuring the arrest or prosecution malicious suing out of the process without of another under lawful process, but from probable cause. Brantley v. Rhodes-Haverty malicious motives and without probable cause. Furniture Co., 62 S. E. 222, 225, 131 Ga. 276. The provocation, motive, and good faith of the defendant, in an action for false imprisMALICIOUS onment, constitute no material element in the case, and can be considered only where punitive or exemplary damages are asked, and then only as affecting the measure of such damages. On the other hand, malice and want of probable cause are the gist of the action for malicious prosecution. With out allegation and proof of both, the action will fail. No one can recover damages for a legal arrest and conviction. Therefore, in cases of malicious prosecution, it becomes necessary to await the final determination of the action. But the same principle does not apply to an action for false imprisonment, as the form of action is based upon an illegal arrest, and no matter ex post facto can legalize an act which was illegal at the time it was done. From this it will be seen that one of the essential elements of a complaint for malicious prosecution is that the proceeding upon which it is based has finally terminated in favor of the plaintiff, while it is equally apparent that this is not a necessary or proper allegation in an action for false imprisonment. Neves v. Costa, 89 Pac. 860, 863, 5 Cal. App. 111.

MALICIOUS TRESPASS

See Injury and Malicious Trespass to
Property.

"Malicious trespass" or injury to property has been defined by the Legislature to mean a wrongful, intentional, and willful injury, and is not confined to cases where the offender is actuated by an evil animus against the owner of the property or the property itself (Rev. St. 1899, § 1989, Ann. St. 1906, p. 1332). State v. McKee, 104 S. W. 486, 487,

Malicious abuse of process distin- 126 Mo. App. 524. guished

An action for "malicious prosecution" is distinguished from one for abuse of process in that, in the former, malice, want of probable cause, and termination of the former proceedings must be shown, and in the latter none of these, but an ulterior purpose and an act in the use of the process not proper in the regular prosecution of the proceeding, must be shown. Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 55 S. E. 422, 423, 143 N. C. 54 (citing Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 50 S. E. 571, 138 N. C. 174, 3 Ann. Cas. 720; 1 Cooley, Torts [3d Ed.] 354; 1 Jaggard, Torts, § 203; Hale, Torts, § 185; Mayer v. Walter, 64 Pa. 283; Jackson v. American Telephone & Telegraph Co., 51 S. E. 1015, 139 N. C. 356, 70 L. R. A. 738); Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 50 S. E. 571, 573, 138 N. C. 174, 3 Ann. Cas. 720.

There is a clear distinction between the malicious prosecution of an action so as to interfere with another's property or business, and the malicious abuse of process, which is the willful and wrongful use of the process itself, and does not require a termination of the suit in which the process issued to be available as a cause of action. Ludwick V. Penny, 73 S. E. 228, 231, 158 N. C. 104.

Crimes Act, § 107 (Gen. St. 1901, § 2100), defining "malicious trespass," reads: "Every person who shall willfully, unlawfully and maliciously break, destroy or injure the door or window of any dwelling house, shop, store or other house or building, or sever therefrom or from any gate, fence or inclosure, or any part thereof, any material of which it is formed, or sever from the freehold any produce thereof, or anything attached thereto, or shall pull down, injure or destroy any gate, post railing, or fence or any part thereof, or cut down, lop, girdle or otherwise injure or destroy any fruit or ornamental or shade trees, being the property of another, shall, on conviction, be adjudged guilty of a misdemeanor." State v. Boies, 74 Pac. 630, 68 Kan. 167, 1 Ann. Cas. 491.

MALICIOUSLY

"Maliciously" means and implies an intention to do an act which is wrongful, to the detriment of another. State v. Van Pelt, 49 S. E. 177, 187, 136 N. C. 633, 68 L. R. A. 760, 1 Ann. Cas. 495.

By the word "maliciously," as used in an indictment for slander by imputing to a woman a want of chastity, is meant that the words must have been so uttered as to imply by defendant an evil intent or legal malice, or without reasonable grounds for believing that the words uttered were true. Rainwater v. State, 81 S. W. 38, 39, 46 Tex. Cr. R.

The principal distinction between an action for malicious abuse of process and one for malicious prosecution is that, while the former lies for an improper use of process' 496.

!

Where, soon after a strike was declared, ["willfully," and imports doing a harm mathe employer secured men to take the place levolently for the sake of the harm, as an end of the strikers, and has ever since had an in itself, and not as a means to some further adequate force, and is not taking any new end legitimately desired. Aikens v. Wisconmen, and of the eleven men who left the em- sin, 25 Sup. Ct. 3, 5, 195 U. S. 194, 49 L. Ed. ployment eight soon secured other employ- 154. ment in the same kind of work, and three "The word 'maliciously' imports 'an inhave left the commonwealth, and the interna- tent to do a wrongful act,'" and its absence tional organization with which the strikers' from an accusation under Pen. Code, § 415, labor union was affiliated ceased to aid their for disturbing the peace, is fully supplied by efforts any further, the strike was ended so the charge that defendant willfully and unthat thereafter driving a wagon through lawfully disturbed the peace by fighting. Lathe streets, bearing a placard announcing rue v. Davies, 97 Pac. 903, 904, 8 Cal. App. the existence of a strike, was manifestly | 750. intended to injure the employer, and was done "maliciously" within the legal meaning