the circumstances surrounding the prosecution, and the situation of the parties.3

It does not constitute malicious prosecution to merely make complaint or sue out a warrant, if no arrest is made thereunder. All persons concerned in the bringing of the wrongful action are jointly and severally responsible, but corporations and other principals are not liable for the malicious actions of their agents and servants, though for the protection of the property of the principals, unless expressly authorized, or to be inferred as part of their authority from the nature and scope of their duties. When the court issuing the process has no jurisdiction, an action for malicious process will not lie unless the prosecutor has falsely and maliciously represented the facts to be different from what they really are, and the mistake is not merely on the part of the court or officer mistaking his authority but rather the wrongful act of the prosecutor.

Sec. 401-42. SAME SUBJECT-TERMINATION OF THE SUIT.-A final acquittal of the ac

3 McKown v. Hunter, 30 N. Y. 625; Dietz v. Langfitt, 63 Pa. St. 234; Purcell v. McNamara, 9 East 361; Lacey v. Porter, 103 Cal. 597; Kimball v. Bates, 50 Me. 308.

4 Swift v. Witchard, 103 Ga. 193; Cooper v. Armour, 42 Fed. 215.

5 Singer Mfg. Co. v. Hancock, 74 Ill. App. 556; Robertson v. Marion, 97 Ill. App. 332; Govaski v. Downey, 100 Mich. 429; Southern, etc., Co. v. Adams, 131 Ala. 147; Markley v. Snow, 207 Pa. St. 447.

6 Navarino v. Dudrap, 66 N. J. L. 620; Beuthner v. Ellinger, 90 Wis. 439; Berger v. Saul, 113 Ga. 869.

cused is usually what is meant by a termination of the suit or action in favor of the plaintiff in the action for malicious prosecution. So where there has been a compromise of the suit complained of, or it has been dismissed and a new action commenced immediately, or within a short time, in another court, this is not such a termination as will justify an action of malicious prosecution.?

The dismissal of the suit by the entry of a nolle prosequi is generally held to be a sufficient termination of the suit to justify an action of malicious prosecution for the wrongful arrest. So is a discharge on habeas corpus proceedings. And the failure of the person responsible for the criminal action to appear and prosecute, whereby it is discontinued, is held to be a final termination.10

Sec. 401-43. SAME SUBJECT-WHEN MALICIOUS PROSECUTION WILL LIE FOR UNFOUNDED CIVIL SUITS.-Generally actions of malicious prosecution are founded upon criminal

'Rosenberg v. Hart, 33 Ill. App. 262; Hamilburgh v. Shepherd, 119 Mass. 30; Sears v. Hathaway, 12 Cal. 277; Hartshorn v. Smith, 104 Ga. 235. But see, Morton v. Young, 55 Me. 24, and Daily v. Donath, 100 Ill. App. 52, where the compounding under protest to secure a discharge, and the payment of costs by the defendant, did not estop the defendant from maintaining an action for the wrongful suit.

8 Brown v. Randall, 36 Conn. 56; Clegg v. Waterbury, 88 Ind. 21. Contra, Brown v. Lakeman, 12 Cush. 482.

9

Zebley v. Storer, 117 Pa. St. 478. Contra, Hinds v. Parker, 11 App. Div. 327, 32 N. Y. S. 230.

10 Leever v. Hamill, 57 Ind. 423.

actions, but in some cases the action may be maintained for the malicious institution of a civil suit. Thus for the malicious institution of a bankruptcy proceeding, the defendant may have such an action for the damages sustained.1 So for the institution of any action, which though of a civil nature, yet, by reason of ancillary process, as arrest, garnishment, attachment, injunction, and the like, there is an interference with the person or property of the defendant, it is generally held that an action of malicious prosecution will lie, if such civil process has been instituted without probable cause and maliciously.2 And where the liberty of the person is aimed at, as in insanity proceedings, the action will lie.3

The authorities are divided on the proposition whether a suit for damages may be maintained in the case of any civil suit alleged to have been brought maliciously and without probable cause, and which has not sought to interfere with the person or property of the defendant. In one of the cases upholding an action for damages in any such case it is said: "The spirit of this rule, if not its let

1

Chapman v. Pickersgill, 2 Wils. 145; Whitworth v. Hall, 2 B. & Ad. 695.

2 Lanzon v. Charroux, 18 R. I. 467; Collins v. Hayte, 50 Ill. 337; Brown v. Master, 104 Ala. 451; Willard v. Holmest, 142 N. Y. 492; Luby v. Bennett, 111 Wis. 613; Newark Coal Co. v. Upson, 40 Ohio St. 17; Pherson v. Runyon, 41 Minn. 524; Fortman v. Rottier, 8 Ohio St. 548. In the last case an action for damages was allowed for a malicious attachment, without showing that the attachment complained of was terminated.

3 Lockenour v. Sides, 57 Ind. 360. See also, Gunderman v. Buschner, 7 Ill. App. 180.

ter, requires the courts, in every case where they find that one, in bad faith, has prostituted their process to gratify his malice, to afford the party so wronged personal redress for the damages sustained by him, when this is found to be in excess of the taxable costs of the suit." The reasons supporting the contrary opinion are thus stated: "Those who favor the doctrine that courts ought to permit suits of this character to be brought and prosecuted, urge in support of it the common law maxim, that for every wrong the law furnishes a remedy. It is said that, when a civil suit is maliciously prosecuted without probable cause, the defendant undergoes expenses, and suffers injury from loss of time, and often from loss of credit; and that these wrongs he must endure without a remedy, if he cannot bring suit for damages for the prosecution of such malicious action. On the other hand it must be remembered that the courts are open to every citizen; and every man has a right to come into a court of justice and claim what he deems to be his right without fear of being prosecuted for heavy damages. If such actions are allowed, it might oftentimes happen that an honest suitor would be deterred from ascertaining his legal rights through fear of being obliged to defend a subsequent suit, charging him with malicious prosecution. Those who favor this species of action also claim that if the courts refuse to allow such actions to be maintained, litigation will be encouraged, and causeless and unfounded civil suits will be apt to be

4 Lipscomb v. Shofner, 96 Tenn. 112, 116. See also, Pope v. Pollock, 46 Ohio St. 367, 4 L. R. A. 255.

brought. On the contrary, the danger is that litigation will be promoted and encouraged by permitting such suits as the present action to be brought. This is so, because the conclusion of one suit would be but the beginning of another. A defendant, who had secured a favorable result in the suit against him, would be tempted to bring another suit for the purpose of showing that there had been malice and want of probable cause in the prosecution of the first suit which he had won. Litigation would thus become interminable."

There must be proof of malice and want of probable cause, under the same principles as exist where the action is based upon a criminal prosecution, and the advice of counsel will be a justification under similar conditions."

"If process, either civil or criminal, is wilfully made use of for a purpose not justified by the law, this is abuse for which an action will lie. The following are illustrations: Entering up a judgment and suing out execution after the demand is satisfied; suing out an attachment for an amount greatly in excess of the debt; causing an arrest for more than is due; levying an execution for an excessive amount; causing an arrest when the party cannot procure bail, and keeping him imprisoned until, by

5 Smith v. Michigan Buggy Co., 175 Ill. 619. See also, Bitz v. Meyer, 40 N. J. L. 252; Terry v. Davis, 114 N. C. 31; Cin. Daily Tribune Co. v. Bruck, 61 Ohio St. 489, distinguishing 46 Ohio St. 367.

6 Carbondale Investment Co. v. Burdick, 67 Kan. 329; Gurley v. Tomkins, 17 Colo. 437; Hurgreen v. Union Mut. L. Ins. Co. 141 Cal. 585; Connelly v. White, 122 Ia. 391; Le Clear v. Perkins, 103 Mich. 131.