Striking a cause from the docket on motion of the State's attorney, with leave to reinstate the same, is not a legal termination of the prosecution within the meaning of the rule. Blalock v. Randall, 76 Ill. 224. But if the indictment is quashed and the defendant discharged by the judgment of the court, there is a sufficient termination of the prosecution to maintain an action for malicious prosecution. Hays v. Blizzard, 30 Ind. 457.

If the prosecution terminated in a conviction, the action clearly will not lie. Miller v. Deere, 2 Abb. 1; Monroe v. Maples, 1 Root, 554; Cloon v. Gerry, 13 Gray, 201; Hibbing v. Hyde, 50 Cal. 206; Griffis v. Sellars, 2 Dev. & Bat. 492. See Palmer v. Avery, 41 Barb. 290. But, where such conviction was procured by the fraud or perjury of the defendant, the rule is otherwise. Id.; Witham v. Gowen, 14 Me. 362; Payson v. Caswell, 22 id. 226; Burt v. Place, 4 Wend. 591.

If a person is arrested, brought before a justice and committed in default of bail for his appearance at the next term of court, and in the meantime procures his discharge on a writ of habeas corpus, this will not be such a termination of the prosecution as will support this action. Walker v. Martin, 43 Ill. 508; Swartwout v. Dickelman, 12 Hun (N. Y.), 358.

87. Who may sue. An action for malicious prosecution is, in general, brought by the person who has suffered damage by the wrong. It will lie by a master for the malicious prosecution of a slave. Locke v. Gibbs, 4 Ired. (N. C.) 42.

And where the statute of a State permits an assignee of a right of action to sue in his own name, or allows a right of this nature to descend to a personal representative on the death of the party injured, the action may be maintained by such assignee or personal representa

tive.

§ 8. Who may be sued. It was formerly an unsettled question in England whether an action for malicious prosecution would lie against a corporation aggregate. Stevens v. Midland Counties Railway Co., 10 Exch. 356; 26 Eng. Law & Eq. 410.

In the United States, the right to maintain an action of this nature against a corporation is not settled. In some of the States it has been held that an action will lie against a corporation aggregate, without showing express authority from the corporation to its agents to institute the prosecution, provided they acted within the scope of their general authority. Fenton v. Willson Sewing Machine Co., 9 Phil. (Penn.) 189. A private corporation is liable in an action for a ma

licious prosecution. Copley v. Grover & Baker Sewing Machine Co., 2 Woods (C. C.), 494.

On the other hand, it has been held that an action of this nature will not lie against a railroad corporation for a malicious prosecution instituted by one of it officers against an employee for an alleged embezzlement of its funds, on the ground that the prosecution was ultra vires. Gillett v. Missouri Valley R. R. Co., 55 Mo. 315; S. C., 17 Am. Rep. 653.

To render a person liable to an action for malicious prosecution it is not necessary that he should be the originator of the prosecution. It is sufficient to fix his liability that he participated voluntarily in the prosecution, and that it was carried on with his countenance and approbation. Stansbury v. Fogle, 37 Md. 369.

His responsibility commences at the point at which he becomes cognizant of the proceedings continued by him. But there is a material distinction between instituting a prosecution and merely attending the hearing of a proceeding already commenced, as has been before stated. It does not follow that, because a person attends the hearing, he adopts the proceeding or renders himself responsible for the motive or actions of the person who instituted it, although that person may be his agent. Weston v. Beeman, 27 L. J. Exch. 57.

A person who maliciously makes an affidavit for the procurement of an attachment becomes liable for the resulting injury without further intervention on his part. Walser v. Thies, 56 Mo. 89. Ante, Vol. 1,

428.

If a person gives another general authority to use his name as he sees fit in prosecuting suits, without informing himself of the facts and circumstances, and shares the compensation, he may be properly joined as a defendant with the person using his name in the prosecution of a malicious suit, and cannot shield himself by a plea of ignorance. Kinsey v. Wallace, 36 Cal. 462.

An agent or attorney who maliciously and illegally sues out process is liable in an action for malicious prosecution and is a proper defendant. Warfield v. Campbell, 35 Ala. 349; Wood v. Weir, 5 B. Monr. 544.

But an action for malicious prosecution cannot be maintained against an attorney at law for bringing a civil action, unless he commenced it without authority, or unless there was a conspiracy between him and his client to bring a groundless suit, knowing it to be such and without intent or expectation of maintaining it. Bicknell v. Dorion, 16 Pick. 478.

The action cannot be maintained against a grand juror for informa

tion given to fellow jurors on which an indictment is found. Black v. Sugg, Hardin (Ky.), 566.

§ 9. Damages. The damages recoverable in a action for malicious prosecution will depend on the nature of the prosecution alleged to have been malicious and the nature of the proceedings had therein.

The principle of awarding damages seems to be the same whether the prosecution is by indictment or by civil proceedings, and if the prosecution in either case is malicious and without probable cause, the jury, in estimating the damages, are not confined to the actual damages proved, but they may, in the exercise of a sound discretion, give exemplary damages; and, although the party may not recover taxable costs, if he has judgment for the same, yet he may recover counsel fees and other expenses incident to the defense of the suit. v. Hagerman, 56 Ill. 68; S. C., 8 Am. Rep. 674.

Lawrence

In England, before the statute of Marlbridge, no costs were recoverable in civil actions, but if such action had been brought maliciously and without probable cause, and had terminated in favor of the defendant, the defendant had his remedy by action against the plaintiff. Since this statute, however, by which costs are given to the defendant in all actions in case of a nonsuit or verdict against the plaintiff, it seems that no action can be maintained merely in respect of a suit maliciously instituted, except in some cases under legislative provisions, and except, perhaps, in those cases when the defendant failed to obtain the ordinary costs, owing to the insolvency of a third party in whose name the suit was prosecuted, the costs awarded by the statute being in lieu of damages. Closson v. Staples, 42 Vt. 209; S. C., 1 Am. Rep. 316.

In this country it has been well said that the statutes under which the prevailing party recovered certain costs in the prosecution or defense of a civil action stand upon the ground that a party has a right in good faith to bring and prosecute a civil action to obtain an adjudication upon certain claims or rights in issue therein, and that a reasonable administration of justice demands that the costs and expenses of litigating those claims or rights, over and above certain items of costs, which the statute allows the prevailing party to recover, should be borne by the respective parties by whom the expenses are incurred, without regard to the result of the action: but as the system of taxing costs under these statutes, except in a very few cases, was created with reference to suits brought and prosecuted in good faith, it furnishes no criterion by which to estimate the damages which the defendant recovers to recompense him for the costs and expenses incurred in defending an action brought against him maliciously and

without reasonable or probable cause by a person having no claim in respect to which he had a right to invoke the aid of the law; and that in such cases the defendant may recover of the plaintiff, in an action on the case, the damages sustained by him in the defense of the original suit over and above the taxable costs obtained by him therein. Closson v. Staples, 42 Vt. 209; S. C., 1 Am. Rep. 316.

The plaintiff in the action for malicious prosecution is not, however, limited in his recovery to the amount of his costs and disbursements in excess of the costs recovered by him in the original action. If the malicious prosecution was founded upon a criminal charge, in which the defendant was arrested, he has a right to indemnity for all the injury to reputation, feelings, health, mind and person, caused by the arrest, including the expenses of his defense. Fagnan v. Knox, 8 Jones & S. (N. Y.) 41; S. C., reversed on other points, 66 N. Y. (21 Sick.) 525; Sheldon v. Carpenter, 4 N. Y. (4 Comst.) 579.

The jury may take into consideration all the circumstances of the case, and award such damages as will not only be a compensation for the wrong and indignity sustained in consequence of the wrongful act, but may also award exemplary or punitive damages as a punishment for such act. Mc Williams v. Hoban, 42 Md. 56; Stewart v. Cole, 46 Ala. 646. A verdict for $1,700 damages for malicious arrest and prosecution has been held not excessive in the absence of proof of justification. Reno v. Wilson, 49 Ill. 95.

The jury are the proper judges of the amount of damages to be allowed in actions of this nature, and unless there is something in the case showing that in their determination they were influenced by passion, prejudice or some improper motive, their verdict will not be disturbed. Chapman v. Dodd, 10 Minn. 350. But parties who, in good faith, and upon grounds believed at the time to be sufficient, cause the arrest of supposed offenders, should not be mulcted in damages merely because the accused party has succeeded in obtaining an acquittal. Ganea v. Southern Pacif. R. R. Co., 51 Cal. 140. It is held that the damages assessed may include a reasonable attorney's fee, for which the plaintiff became liable in defending himself in the criminal prosecution against him, though he has not yet paid the fee. Ziegler v. Powell, 54 Ind. 173.

ARTICLE II.

OF THE DEFENSES TO THE ACTION.

Section 1. Probable cause. It is a good defense to an action for malicious prosecution that there was probable cause, or if not, that the

defendant was not actuated by what the law terms malice. Ewing v. Sanford, 21 Ala. 157; Calef v. Thomas, 81 Ill. 478.

As has been before stated, the question of probable cause does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but upon the prosecutor's belief based upon reasonable grounds. The prosecutor may act upon appearances, and if the apparent facts are such that a discreet and prudent person would be led to the belief that the accused had committed a crime, he will not be liable in this action, although it may turn out that the accused was innocent. Carl v. Ayers, 53 N. Y. (8 Sick.) 14. Farnam v. Feeley, 56 N. Y. (11 Sick.) 451; Fagnan v. Knox, 66 N. Y. (21 Sick.) 525. And see ante, p. 342. If there be an honest belief of guilt, and there exist reasonable grounds for such belief, the party will be justified. But however suspicious the circumstances may be, if the prosecutor has knowledge of the facts which will explain the suspicious appearances and exonerate the accused of a criminal charge, he cannot justify a prosecution by putting forth the prima facie circumstances, and excluding those within his knowledge which tend to prove innocence. Fagnan v. Knox, 66 N. Y. (21 Sick.) 525.

Belief in the guilt of the accused is no justification, standing alone. There must also be reasonable or probable grounds for the belief. Thompson v. Lumley, 50 How. 105; Graeter v. Williams, 55 Ind. 461. Ante, p. 342.

And, if there was probable cause for the prosecution, the justification is complete, whether the prosecutor was actuated by proper motives, or otherwise. Ames v. Snider, 69 Ill. 376. Ante, p. 342.

But it will be no justification that there was, in fact, probable cause for the prosecution, if the party did not know the facts of constituting the probable cause when the prosecution was commenced. Galloway v. Stewart, 49 Ind. 156; 19 Am. Rep. 677.

Mere conversion of property is not larceny, and information of such conversion constitutes no grounds of probable cause as a defense to the action for malicious prosecution. Turner v. O'Brien, 5 Nebr. 542.

§ 2. Want of malice. As has already been shown, an action for malicious prosecution cannot be maintained without proof that the prosecution was malicious and without probable cause. Therefore, when a prima facie case has been made by the plaintiff, all that is necessary on the part of the defendant to defeat the action is, to prove either the existence of probable cause, or the absence of malice in the prosecution. If probable cause is shown, the absence of malice in instigating the prosecution need not be shown as a defense, as the motive in instigatVOL. IV. 45