Page v. Cushing

Howard, J.

— The plaintiffs claim damages for conspiracy, in the malicious institution of a prosecution, and abuse of *526 legal process. Under the instructions given, they were required to prove affirmatively, in order to maintain their action, that they had sustained damages by the prosecution instituted by the defendants maliciously, and without probable cause. To these instructions, in the letter and spirit of the law, on the subject of malicious prosecutions, the defendants have no legal grounds of complaint. Nor were they injured by the directions given in reference to a conspiracy to do an unlawful act, knowing it to be unlawful at the time, as repelling the existence of probable cause. Eor there can be no such thing as probable cause for a prosecution to accomplish a purpose, known to the prosecutor to be unlawful.

Whether the facts and circumstances appearing in a given case amount to probable cause, is for the Court to decide, as a matter of law; and the question of malice is to be detennined by the jury. But in a legal sense, malice has a meaning different from its popular signification. Acts willfully and designedly done, which are unlawful, are malicious in respect to those to whom they are injuifious. One may prosecute a laudable purpose with an honest intention, but in such a manner, and in such disregard of the rights of others, as to render his acts unlawful. Prosecutions may be instituted and pursued with pure motives, to suppress crimes, but so regardless of established forms of law, and of judicial proceedings, as to render the transactions illegal and malicious. The general motive may be upright and commendable, while the particular acts in reference to others, may be malicious, in the legal acceptation of the term. So that an act may be malicious in a legal sense, which is not prompted or characterized by malevolence or corrupt design.

The instructions on the subject of malice, were therefore correct, although seemingly paradoxical, when the distinction between malice in a popular and in a legal sense, is overlooked.

The remarks of the presiding Justice, substantially, that *527 if the defendants conspired and confederated to accomplish, a purpose which they knew to he unlawful, and by their acts done in effecting such unlawful purpose, they occasioned damage to the plaintiffs, they would be liable for such damage, as embracing a general proposition, would be correct; and taken in connection with previous instructions, would be unobjectionable.

The first request for instructions was properly refused, on the ground, that sufficient directions had been previously given upon the point presented in the request. It was within the discretion of the Judge whether or not to repeat his instructions.

In an action for abuse of legal process it is not necessary to aver or prove, that the process is at an end, or that it was sued out maliciously, or without probable cause. For a prosecution which is not malicious may be improperly employed, and an action will lie for damages occasioned by its abuse, whether or not it be terminated. Grainger v. Hill, 4 Bing. N. C. 212; 2 Greenl. Ev. 452. This would furnish sufficient reason for refusing to comply with the second request. But there are other reasons why the instructions asked for in that request could not have been granted. It does not appear, that Sandford, the supposed “ respondent” in the prosecution, was ever arrested, or arraigned for trial, or that he was directly charged with an offence; the plaintiffs could not, therefore, show, or be required to show, in the language of this request, that he had been “ acquitted of the charge made in the complaint.”

In an action for a malicious criminal prosecution, the plaintiff may show that the prosecution has terminated without proving an acquittal; as that it has been abandoned by the prosecutor, and the government, before his arraignment, or before he has been required to plead, as was alleged, and not contradicted, in the case at bar. The reason, for averring and proving how the original prosecution was determined, before maintaining an action for malicious prosecution, is given, that otherwise, the plaintiff might recover damages, *528 when by a subsequent disposal of the prosecution, it might appear, that it was not malicious and without probable cause, and thus the results would be inconsistent. Parker v. Lang ley, 10 Mod. 209; Fisher v. Bristow, Doug. 2,15. But the burden of proof is upon the plaintiff, to establish malice and the want of probable cause, on the part of the prosecutor, which may be done upon his own admissions by plea or parol; and when they can be proved, there is no reason why the suit for damages should be postponed until the prosecution, shown to be false and hopeless, should be more formally terminated. The bare possibility of inconsistent verdicts should not exempt or relieve a party from responsibility for damages for admitted wrongs. It has been held, that a return of ignoramus upon a bill, by the grand jury, is sufficient to show the termination of the prosecution. Morgan v. Hughes, 2 T. R. 225. A nonsuit would have a like effect upon an action alleged to be malicious, to show that it was at an end, although another suit might be brought for the same cause. 10 Mod. 209, before cited.

Exceptions overruled.— Judgment on the verdict.

Shepley, C. J., Tenney and Cutting, J. J., concurred.