§ 5. OF DAMAGE.

If the charge upon which the prosecution was instituted was such as (being untrue) would have constituted actionable slander had it not been preferred in court, the plaintiff, upon proof of the termination of the prosecution, the want of probable cause, and malice, has made out a case, and is entitled to judgment. It is not necessary for him to prove that he has sustained any pecuniary damage. For example: The defendant causes the plaintiff to be indicted for the stealing of a cow, falsely, without probable cause, and of malice. The plaintiff is entitled to recover without producing evidence that he has sustained any actual damage.1

But it has been decided that it is only for the prosecution of a charge the mere oral imputation of which would constitute actionable slander that the institution of the prosecution can be actionable without damage.2 For example: The defendant falsely prefers against the plaintiff a simple charge of assault and battery, without cause and with malice. The plaintiff cannot recover for a malicious prosecution without proof of special damage.

Ry. Co. 10 Ex. 356, that by the term 'malice' is meant any indirect motive of wrong. Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice is a malicious motive.' And see Abrath v. North Eastern Ry. Co. 11 Q. B. Div. 440, 450, where Bowen, L. J. speaks of proceedings 'initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice.' See also Gabel v. Weisensee, 49 Texas, 131; Culbert. son v. Cabeen, 29 Texas, 247.

1 See Frierson v. Hewitt, 2 Hill (S. Car.), 499; Byne v. Moore, 5 Taunt. 187, Mansfield, C. J.; s. c. L. C. Torts, 181.

2 Byne v. Moore, supra. See Quartz Hill Mining Co. v. Eyre, 21 Q. B. Div. 674, 692.

8 Byne v. Moore, supra.

It follows that this action for a malicious prosecution cannot be maintained without proof of damage when the prosecutor has procured the indictment of the plaintiff for the commission of that which is not a criminal offence. For example: The defendant procures the plaintiff to be indicted for the killing of the former's cattle. The plaintiff must prove special damage; the offence, though charged as a crime, being only a trespass.1

§ 6. OF KINDRED WRONGS.

If the prosecution fail by reason of the circumstance that the court in issuing its warrant exceeded its jurisdiction, or that the warrant or indictment was defective, it might not be clear in principle whether the accused should sue for malicious prosecution or for slander; supposing the charge to have been defamatory. It would give him an obvious advantage to sue for slander, since then he would not be compelled to prove a want of probable cause or the existence of malice; and the proper remedy is deemed to be an action for malicious prosecution.2

In this connection attention should be directed to actions for abuse of the process of the courts. An action is given by law for such an act without requiring the plaintiff to prove either the termination of the proceeding in which the abuse of process has taken place, or the want

1 Frierson v. Hewitt, 2 Hill (S. Car.), 499.

2 Pippet v. Hearn, 5 B. & Ald. 634; Morris v. Scott, 21 Wend. 281; Stone v. Stevens, 12 Conn. 219; Hays v. Younglove, 7 B. Mon. 545; Shaul v. Brown, 28 Iowa, 37. See Braveboy v. Cockfield, 2 McMull. 270; Turpin v. Remy, 3 Blackf. 210. Contra, Bixby v. Brundige, 2 Gray, 129. If the supposed court was no court known to the law, as e. g. if it was only some self-constituted body like a vigilance committee, an action for defamation could probably be maintained; of course an action for false imprisonment would be proper.

of probable cause for instituting that proceeding. For example: The defendant under process or the court in an action for a debt not due, procures the plaintiff through duress to deliver valuable property (a ship's register) to him. The defendant is liable in damages, without evidence of the termination of the suit or of the want of probable cause.1 Nor (probably) need malice be proved, apart from the abuse of process.

To maintain such an action, however, the plaintiff's case must be something other than a proceeding for a malicious prosecution. The ground of action must be, not a false prosecution (that is, a prosecution upon an accusation which has been tried and not sustained), but an unlawful use of legal process; and such an act may be committed as well in the course of a well-founded prosecution as in a false one.

If the wrong suffered consist in an unlawful arrest, the action will be for a false imprisonment, of which hereafter, or for a malicious arrest; 2 if it consist in an unlawful extortion of a contract or of property, the action will in substance be for duress, an example of which has already been given. Other instances may be found in actions for malicious issuance of a warrant, the levying of an execution for far more than is due,5 the malicious

1 Grainger v. Hill, 4 Bing. N. C. 212; s. c. L. C. Torts, 184.

2 Jenings v. Florence, 2 C. B. N. s. 467. See 32 & 33 Vict. c. 62. 18 Daniels v. Fielding, 16 M. & W. 200; Gibbons v. Alison, 3 C. B. 181.

3 In case a contract were thus obtained, the injured party could elect to affirm the validity of the contract, and sue for the duress, or he could deny the validity of the agreement, and plead the duress in an action upon it.

Cooper v. Booth, 3 Esp. 135; Phillips v. Naylor, 4 H. & N. 565. 5 Churchill v. Siggers, 3 El. & B. 938; Jenings v. Florence, supra ; Somner v. Wilt, 4 Serg. & R. 19; Hilliard v. Wilson, 65 Texas,

or otherwise.wrongful levy of an attachment,1 and the malicious causing an execution to issue against one on behalf of the public. These are cases of the wrongful resort to rather than of abuse of process.

4

2

8

Recent English decisions have also brought to light the existence of a right of action for maintenance. This is a tort founded upon early statutes making maintenance a criminal offence; an action for damages being permitted only where the defendant has aided the prosecution of some suit in which he had no interest, or, it seems, motive other than that of stirring up or keeping alive strife. It has lately been decided that if the defendant's conduct was based on charity, reasonable or not, the action will fail.5

1 Zinn v. Rice, 154 Mass. 1; Stewart v. Cole, 46 Ala. 646; Spengler v. Davy, 15 Gratt. 381.

2 Craig v. Hasell, 4 Q. B. 481.

8 Bradlaugh v. Newdegate, 11 Q. B. D. 1; Harris v. Brisco, 17 Q. B. Div. 504; Metropolitan Bank v. Pooley, 10 App. Cas. 210.

4 It is doubtful if a corporation can be liable for the offence. 10 App. Cas. at p. 218, Lord Selborne.

Harris v. Brisco, supra

CHAPTER III.

CONSPIRACY.

§ 1. INTRODUCTORY.

Statement of the duty. A owes to B the duty to forbear to carry out, wholly or partly, against him, to his damage, any unlawful conspiracy entered into with C.

The law of conspiracy, in its civil aspect, has been treated as a branch of the law of malicious prosecution; and with that subject it has, indeed, in one of its features, a close connection. Civil actions for conspiracy were formerly instituted, in most cases, for redress on account of unlawful combinations for instituting criminal prosecutions of the grade of felony. Combinations for other unlawful purposes were redressed in other forms of actions; generally, it appears, in an action of deceit, sometimes, however, in an action of trespass.

Distinct and peculiar rules of law prevailed in former times concerning conspiracies of the first-named class. A writ of conspiracy could be sustained only by proof of an actual combination to indict the plaintiff of felony, with the other elements of an action for malicious prosecution. Failure to prove the combination was fatal, even though enough were proved to establish a right of action for a simple false prosecution. The action for the latter offence was a distinct proceeding. In later times the writ