out directly deciding the point, that an action lies for maliciously arresting the plaintiff, and taking him in execution at the defendant's suit, though the plaintiff was taken in execution at the instance of the defendant's attorney, and without the knowledge or assent of the defendant. To the objection that there could be no evidence of malice in such a case, Best, C. J., said: "But malice may be inferred. Malice in law means an act done wrongfully, and without reason able or probable cause, and not, as in common parlance, an act dictated by angry feeling or vindictive motives." But see Burnaps v. Albert, Taney, 244, holding the doctrine of respondeat superior not to apply to such a case.

In Page v. Cushing, supra, the Supreme Court of Maine said that, "in a legal sense, malice has a meaning different from its popular signification. Acts wilfully and designedly done, which are unlawful, are malicious in respect to those to whom they are injurious. 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."

prosecution is "injury sustained by the plaintiff either in his person by imprisonment, his reputation by the scandal, or in his property by the expense. If the plaintiff cannot prove any such injury, he cannot maintain the action." Selwyn's N. P. 1026; Savil v. Roberts, 1 Salk. 13; Jones v. Gwynn, 10 Mod. 214.

If, therefore, the charge complained of be not scandalous, so that an action of slander could not be maintained for a similar verbal imputation, it is necessary for the plaintiff to aver and prove special damages, as was decided in the principal case, Byne v. Moore.

In Frierson v. Hewitt, 2 Hill (S. Car.), 499, an action for maliciously indicting the plaintiff for killing cattle, the court, by Mr. Justice O'Neall, after stating that the indictment had only charged a trespass, said: "The indictment must charge a crime; and then the action is sustainable per se, on showing a want of probable cause. There is another class of cases which are popularly called actions for malicious prosecution, but they are misnamed; they are actions on the case in which both a scienter and a per quod must be laid and proved. I allude now, first, to actions for false and malicious prosecutions for a mere misdemeanor, involving no moral turpitude; secondly, to an abuse of judicial process, by procuring a man to be indicted as for a crime when it is a mere trespass; third, malicious search-warrants. In all these cases it will be perceived that they cannot be governed by the ordinary rules applicable to actions for malicious prosecutions. It is said by most of our law-writers that, in such cases, you must not only prove want of probable cause, but also express malice and actual injury or loss, as deprivation of

liberty, and money paid in defence. The express malice necessary to sustain such actions ought to be laid and proved; and this is what I understand by the scienter. As in an action for a false and malicious prosecution for a misdemeanor, it must be laid and proved that the party, knowing the defendant's innocence, still, of his mere malice, preferred the charge; so, in the second class of cases, it will not do to say that you indicted me as for a crime, for a trespass, without any probable cause; for, in such case, no injury is done to the plaintiff, and no fault is established against the defendant for which he can be punished. But when to this statement we superadd the facts that the defendant, knowing that the trespass complained of was no crime, yet procured the plaintiff to be indicted as for a crime; and if the plaintiff has sustained any injury, the action will lie. [See Dennis v. Ryan, 63 Barb. 145; Streight v. Bell, 37 Ind. 550.] There can be no necessary and consequential injury in such cases; it may or may not arise. In other words, there is no implied injury [as in the case of actionable words]; for there can be no slander, inasmuch as no crime is imputed. Actual injury must be stated and proved; and this constitutes the per quod. Deprivation of liberty, or expense of defence, will constitute sufficient ground to sustain this part of the action. According to these views, the plaintiff's action was not made out, and the nonsuit was properly ordered."

The editors of the American Leading Cases, p. 258 (5th ed.), also say that it is certainly only in the case of a crime, or, at least, an indictable of fence, involving moral turpitude, the verbal imputation of which would be slander, that the mere preferring an in

dictment, or issuing a warrant, or otherwise instituting a criminal proceeding, without arrest or special damage is actionable. And they suggest, as to what was said in Gregory v. Derby, 8 Car. & P.749, to the effect that no action would lie for a charge of stealing, on which a warrant was issued, if the party was not apprehended; and the remark of the court in O'Driscoll v. McBurney, 2 Nott & M. 54, that there can be no prosecution without an arrest (see Mayer v. Walter, 64 Penn. St. 283, 289); that this should probably be confined to cases where the charge was not slanderous, or, at least, where arrest is specially made the gravamen in the declaration; "for," they say, "if a slanderous charge be made before a magistrate and a warrant demanded, and a warrant thereupon issue, it is believed that this form of action is the appropriate remedy. But if no warrant issue, the remedy is slander, in the form of imposing the crime of felony.'" See Fuller v. Cook, 3 Leon. 100; Heyward v. Cuthbert, 4 McCord, 354.

So, too, if the court issuing the warrant exceed its jurisdiction, or if the warrant or indictment be defective, the better opinion seems to be that an action for slander is the proper remedy if the charge were of a scandalous offence, and trespass if there were an arrest. 1 Amer. L. C. 259 (5th ed.) ; Braveboy v. Cockfield, 2 McMull. 270; Turpin v. Remy, 3 Blackf. 211; Bodwell v. Osgood, 3 Pick. 379. But see Jones v. Gwynn, 10 Mod. 214; Wicks v. Fentham, 4 T. R. 247; Pippet v. Hearn, 5 Barn. & Ald. 634; Morris v. Scott, 21 Wend. 281; Shaul v. Brown, 28 Iowa, 37.

There are, then, several distinct classes of cases commonly embraced under the head of malicious prosecu

tion, which may be thus enumerated: 1. Where the declaration charges an indictment for an offence involving scandal, in which case it is necessary for the plaintiff to prove malice, want of probable cause, and the termination of the prosecution; 2. Where the indictment was for a misdemeanor or an offence not involving scandal, in which case the plaintiff must prove, in addition to the three facts just mentioned, special damage; 3. Where the action is for the malicious abuse of process, in which case the plaintiff need only prove malice and special damage; 4. Where the action is for the malicious issuance of a search-warrant, in which case it would seem that the plaintiff need only prove malice and want of probable cause, since the charge would involve scandal. See Elsee v. Smith, 1 Dowl. & R. 97; Miller v. Brown, 3 Mo. 127. And although, in general, an action cannot be maintained for preferring a false claim of title or of right to damages for an alleged injury, still it seems that if the claim be set up without the slightest foundation, to the defendant's certain knowledge, as if he should forge a promissory note, signing the plaintiff's name to it, and bring suit upon it against the plaintiff, an action in the nature of an action for malicious prosecution might be sustained. See Green v. Button, 2 Cromp., M. & R. 707; Wren v. Weild, Law R. 4 Q. B. 730, 735, so deciding of a claim not made in court. In such a case, however, it would seem that the plaintiff might declare either upon the analogy of Pasley v. Freeman, alleging a false charge, knowingly made, with intent to injure the plaintiff, followed by special damage, or in the form of malicious prosecution, alleging malice, want of probable cause, and damage. The latter was the

form in Green v. Button and Wren v. Weild, supra.

Malicious Abuse of Process. - The principal case, Grainger v. Hill, is an example of the action for a malicious abuse of process in compelling a party illegally to give up his property. Among other examples may be named the vexatious suing out of a second capias, pending a former writ, as in Heywood v. Collinge, 9 Ad. & E. 268; the levying of execution of double the amount of the debt, Sommer v. Wilt, 4 Serg. & R. 19; the fraudulent inducing a person to come within the jurisdiction of a court, Wanzer v. Bright, 52 Ill. 35; the arrest of the plaintiff on a ca. sa. for a larger sum than is due, Jenings v. Florence, 2 C. B. N. s. 467; and the wrongful suing out of an attachment, Spengler v. Davy, 15 Gratt. 381. In this case, it was held that an allegation of malice was necessary, but its omission was said to be cured by verdict. In Stewart v. Cole, 46 Ala. 646, it seems to have been supposed that proof of malice was unnecessary, except for the purpose of obtaining exemplary dam

ages.

But this is believed to be incorrect. It is difficult to see how the making a false charge, believing it to be true, can be actionable. The plaintiff's injury in such case is damnum absque injuria. Preston v. Cooper, 1 Dill. 589; Fullenwider v. McWilliams, 7 Bush, 389.

It may be added that the old practice of making an allegation of conspiracy, where the action was brought against two or more, is now obsolete; and, if the allegation be inserted in the declaration, it may be rejected as surplusage. Parker v. Huntington, 2 Gray, 124. However, all who voluntarily participate in the prosecution are liable. Stansbury v. Fogle, 37 Md. 369.