Entered according to Act of Congress, in the year 1852, by LITTLE AND BROWN, in the Clerk's Office of the District Court of the District of Massachusetts. Rec. Fel. 241857 CAMBRIDGE: PRINTED BY HOUGHTON AND HAYWOOD. DIGEST. MAIL. See ATTACHMENT, VI. No. 10. PRESCRIPTION, III. (b). BILLS AND NOTES, VI. (b), No. 9. VII. (b), (c). VIII. MALICIOUS PROSECUTION. 1. Actions brought for damages by defendants, who have been arrested on the ground of the falsehood of the affidavit, should be cautiously entertained, and the proof of malice, on the part of plaintiff in arrest, should be free from doubt, in order to enable the party to recover damages. Ryder v. Adams, 5 L. 319. 2. In an action for false imprisonment and damages under a ca. sa., which was quashed for having illegally issued, defendant may show, in justification and mitigation of damages, by reference to the decisions of the supreme court, that the judgment quashing the writ is erroneous, when at the trial such judgment has not become res judicata. Escurix v. Daboval, 7 L. 579. 3. A judgment creditor is liable in damages in an action for the false imprisonment of his debtor on a ca. sa., if the writ issue illegally; where no malice is shown, and the party might have been easily mistaken in taking out his writ, if considerable damages be given, the court will grant a new trial. Escurix v. Daboval, 13 L. 90. 4. In an action for a malicious prosecution, the defendant may introduce evidence to show what were his motives, and the absence of malice in the prosecution, whether the grounds of his belief of the defendant's guilt were set forth in his affidavit or not. Maloney v. Doane, 15 L. 278. 5. The public interest, and the proper administration of justice in criminal matters, require that actions for a malicious prosecution should not be maintained without clear proof of malice, and the absence of probable cause. lb. 6. To maintain an action for a malicious prosecution, the plaintiff must prove: first, the prosecution; second, that the defendant was the prosecutor, or the cause of the prosecution; third, that he was actuated by malice; fourth, that there was no probable cause for the prosecution. Grant v. Deuel, 3 R. 17; Digard v. Michaud, 9 R. 387; Penny v. Taylor, 5 A. 714. 7. In an action for a malicious prosecution, malice may be established: first, by proving express malice; second, by showing want of probable cause for the prosecution. Malice is usually inferred from the want of probable cause. 1b.; Digard v. Michaud, 9 R. 387; Senecal v. Smith, Ib. 418. 8. Upon principles of policy and convenience, the prosecutor will be protected, though his private motives may have been malicious, provided he had probable cause. Where express malice has been proved, there must be some positive evidence to show that the prosecution was groundless, though slight evidence will be sufficient. Ib. 9. An acquittal, or even subsequent proof of complete innocence, is not sufficient evidence of want of probable cause. Grant v. Deuel, 3 R. 17. 10. Proof that the jury entertained doubts on the evidence, or deliberated as to the guilt of the accused after the case was concluded, is proof of probable cause for the prosecution. lb. 11. One who causes a drunken person to be arrested by the police, for disturbing the peace in the neighborhood of his residence, is not liable in damages for so doing. Stertzback v. Quirk, 8 R. 111. 12. Malice will not be implied from the want of probable cause, where the person against whom it is charged is a man of high reputation, of a humane disposition, and nothing induces the belief that he had any cause of displeasure which could prompt him to injure the person he had accused. Digard v. Michaud, 9 R. 387. 13. Though a writ of arrest may have been illegally obtained, the clerk who issued, and the sheriff who executed it, in obedience to the mandates of a competent tribunal, cannot be viewed as co-trespassers with the plaintiff in the suit, who alone is responsible. Driggs v. Morgan, 10 R. 119. 14. In an action for damages for a malicious arrest, evidence is admissible to prove the condition of the apartment in the jail in which plaintiff was confined. lb. 15. Damages for an illegal arrest may be recovered under art. 2294 C. C., which declares that every man shall be bound to repair any damage, done by his fault to another. Spofford v. Pemberton, 12 R. 162. 16. In an action for damages for an illegal arrest, if no probable cause be shown for the arrest, malice on the part of the person at whose instance it was made, will be presumed. York v. Chilton, 4 A. 377. See NEW TRIAL, III. (a). ATTACHMENT, p. 131, No. 18. EVIDENCE, XXII. (e), No. 4. MANDAMUS. I. TO INFERIOR COURTS. II. TO NON-JUDICIAL PERSONS. |