for malicious prosecution are (1) that there has been a prosecution against the plaintiff, and which has occasioned damage to the plaintiff; (2) that the proceeding on such charge has terminated, and that too in favor of the plaintiff; (3) that the charge was without reasonable or probable cause; and (4) was malicious. All these requisites must exist, and the burden is upon the plaintiff to establish their existence.

422. The first essential to a right of action for a malicious prosecution, is that there has been a prosecution against the plaintiff, and by a prosecution is here meant a complaint or charge made to a criminal tribunal. The complaint may be made orally or in writing, and it may charge (1) something which, if otherwise published, would confer a right of action, or (2) something which, if otherwise published, would not confer a right of action, unless followed by special damage, or (3) the complaint may be defective in form, or (4) the tribunal addressed may have no jurisdiction of the offense charged. And the complainant may content himself with simply making his complaint, leaving it altogether to the tribunal addressed to decide what shall be done thereupon, or he may go further and be officious in any proceedings which may ensue. The liabilities and rights of the party complaining, and of the party complained against, are materially affected by the foregoing circumstances.

The distinctions between oral and written language (§ 18), and of language actionable per se, and actionable only by reason of special damage (Chap. VIII), apply to the complaint, so that if the charge is such as if otherwise published would confer a right of action, in that case, the mere fact of making the charge, the other essentials to a cause of action (§ 421) existing, will confer a right of action for malicious prosecution. But if the

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1 "To sustain the action of malicious prosecution, technically so called, the indictment must charge a crime; and then the action is sustainable per se on showing a

charge is such as if otherwise published would not confer a right of action unless special damage ensues, in that case no action lies for malicious prosecution, unless upon proof of special damage. Now, special damage is the natural and proximate consequence of a wrongful act (§ 197), and therefore, where a complaint, although not of itself sufficient to confer a right of action, does, as a natural and proximate consequence, occasion loss or injury to the accused, in that event he may, the other essentials to the action (8 421) existing, maintain an action for malicious prosecution. The natural and proximate consequences of a complaint to a criminal tribunal, making a charge which amounts to a criminal offense, and of which the tribunal addressed has jurisdiction, is the arrest of the accused, which may or may not be followed with detention or imprisonment and cost of defense, and any one of these consequences is such damage or special damage as will confer a right of action. This distinction. between a complaint which is per se actionable, and one which is actionable only where special damage ensues, explains why some decisions hold that an arrest is, and others that an arrest is not, essential to a right of action.3

want of probable cause." "There is another class of actions 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." (O'Neall, J., Frierson v. Hewitt, 2 Hill [So. Car.] 499.)

1 In Byne v. Moore, 5 Taunt. 187, the plaintiff, without being arrested, had been indicted for an assault. The bill was ignored by the grand jury. In an action for such prosecution as malicious and without probable cause, the plaintiff was nonsuited, and per Mansfield, Ch. J., "I feel a difficulty to understand how the plaintiff could recover in the present action, wherein he could recover no damages because he clearly has not proved that he sustained any. I can understand the ground upon which an action shall be maintained for an indictment which contains scandal, but this contains none." The charge of assault was not actionable per se.

2 Randall v. Henry, 5 Stew. & Port. 367. And if the charge is followed by the issue of a search warrant which is executed on plaintiff's premises, that is special damage, and will of itself support an action. (Elsee v. Smith, 1 D. & R. 97; Miller v. Brown, 3 Mo. 127.)

3 Gregory v. Derby, 8 Car. & P. 749; Clarke v. Postan, 6 Id. 423; O'Driscoll v.

We shall consider hereafter (§ 432) who is responsible for making the complaint, but it will be convenient here to consider who is responsible for what happens in consequence of the complaint, in those cases in which the complaint, of itself, does not confer a right of action. As in such case the right of action against the complainant depends upon the natural consequences of the act of complaining, if the complaint does not charge a crime-as, for instance, if the complaint amounts only to charge of conversion only-and the magistrate, of his own volition, erroneously issues a warrant for a felony, upon which the accused is arrested, such warrant and arrest are not natural consequences of the complaint, and for them the complainant is not liable, although in such a case a right of action might exist against the magistrate. If, in the case just mentioned, the complainant had taken part in the arrest of the accused, as if he had personally delivered to the officer the warrant for the arrest of the accused, in that event he would have been liable to an action for a malicious prosecution, the arrest would have been a natural con

M'Burney, 2 Nott & McC. 54; Lawyer v. Loomis, 3 Sup. Ct. Rep. (T. & C.) 393; Mayer v. Walter, 64 Penn. St. Rep. 283; Newfield v. Copperman, 15 Abb. Pr. Rep. N. S. 360, hold an arrest essential to a cause of action, and others as Stapp v. Partlow, Dudley (Ga.) 176, that an arrest is not necessary. If no warrant issue, the remedy is slander in the form of "imposing the crime of felony." (Fuller v. Cook, 3 Leon. 100; Heyward v. Cuthbert, 4 McCord, 354.) An allegation that plaintiff was arrested, is satisfied by proof of a detainer. (Whailey v. Pepper, 7 C. & P. 506.) An officer who had a writ against plaintiff, sent a message informing him of the fact, and asking him to come to the office and execute a bail bond, held not to amount to an arrest. (Berry v. Adamson, 6 B. & C. 528; but see Van Voorhes v. Leonard, I Sup. Ct. Rep. [T. & C.] 148.) An allegation that defendant caused plaintiff to be arrested and to be detained until, to procure his release, he procured bail, held not a divisible allegation, and not sustained by proof of giving bail. (Id.) An averment that plaintiff was detained until he found bail, is supported by proof of a detention only. (Bristow v. Heywood, 1 Stark. R. 48; 4 Camp. 413.)

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1 Leigh v. Webb, 3 Esp. Cas. 165; Tempest v. Chambers, 1 Stark. Rep. 67; and see Cohen v. Morgan, 6 D. & R. 8; Bartlett v. Brown, 6 R. I. 37; Carratt v. Morley, 1 G. & D. 275; 1 Q. B. 18; McNeely v. Driskill, 2 Blackf. 259.

sequence of his act of delivering the warrant to the officer.'

A charge, the publication of which is otherwise actionable, is not the less so because published to a court having no jurisdiction, and therefore we find decisions. to the effect that it is no defense that the court in which the prosecution was had, was without jurisdiction, probably where the charge is such as would give no right of action unless with special damage, the complainant might not be responsible for acts of the court done without jurisdiction.

A charge, the publication of which is otherwise actionable, is not the less so because published in a complaint or an indictment which is defective in form,3 or upon which, for some other reason, the accused could not have been convicted.*

§ 423. Except, perhaps, in the case of an ex parte exhibition of articles of the peace,5 no action for a ma. licious prosecution, can be maintained until after the prosecution alleged to be malicious, has terminated, otherwise the plaintiff might obtain judgment in the one case and yet be convicted in the other.' What is such a

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1 Johnson v. Daws, 5 Cranch C. C. 283; Collins v. Love, 7 Blackf. 416; Gibbs v. Ames, 119 Mass. 60. Although the fact that a magistrate has granted an illegal warrant may furnish ground for an action of trespass against the magistrate, it does not prevent an action for malicious prosecution being sustained against the person who procured the issuance of such warrant. (Elsee v. Smith, 1 D. & R. 79 ; 2 Chit. R. 304; Kline v. Shuler, 8 Ired. 484.)

Morris v. Scott, 21 Wend. 281; Newfield v. Copperman, 15 Abb. Pr. R. N. S. 360; but see Braveboy v. Cockfield, 2 McMul. 270.

3 Pippet v. Hearn, 5 B. & Ald. 634; Chambers v. Robinson, 2 Stra. 691; Wicks v. Fentham, 4 T. R. 247; Jones v. Gwynn, 10 Mod. 214.

4 Pedro v. Barrett, 1 Ld. Raym. 81.

5 Steward v. Gromett, 29 Law Jour. Rep. C. P. 170; 7 C. B. N. S. 191.

6 Gillespie v. Hudson, 11 Kan. 163; O'Brien v. Barry, 106 Mass. 300; Cardival v. Smith, 109 Mass. 158.

'Fisher v. Bristow, 1 Doug. 215; Cardival v. Smith, 109 Mass. 158; O'Brien v. Barry, 106 Mass. 300.

termination as will authorize the commencement of the action, is sometimes difficult to determine. It was formerly held that a technical acquittal was indispensable,' and in a recent case the court said: "It was necessary to show the plaintiff's acquittal to lay a foundation for the action. He (plaintiff) could not proceed a step without it." It is certain that the termination should be such as to furnish prima facie evidence that the prosecution was unfounded, and was terminated on account of the plaintiff's innocence, or at least was in favor of the plaintiff. It was formerly supposed that the termination must be such as would constitute a bar to a subsequent proceeding, but it seems that now a termination of the particular prosecution will suffice, as if the grand jury fail to find a true bill, or the indictment is quashed, or in certain cases a nolle prosequi is entered, or the complaint is dismissed by the magistrate "in consequence of the complainant not appearing to prosecute at the time

1 Goddard v. Smith, 6 Mod. 262.

3

Hogeboom, J., Miller v. Milligan, 48 Barb. 42, citing M'Cormick v. Sisson, 7 Cow. 715; Gorton v. De Angelis, 6 Wend. 418.

3 Wilkinson v. Howel, 1 Moo. & M. 495; Webb v. Hill, 3 Car. & P. 484. Hains v. Elwell, 3 N. Jersey Law (2 Penn.) 411 [618.]

5 Gorton v. De Angelis, 6 Wend. 418; Clark v. Cleaveland, 6 Hill, 344; Hall v. Fisher, 20 Barb. 441.

• Clark v. Cleaveland, 6 Hill, 347; Stanton v. Hart, 27 Mich. 539; Long v. Rogers, 17 Ala. 546; Brown v. Randall, 36 Conn. 56.

7 Haupt v. Pohlmann, 16 Abb. Pr. R. 302; Rost v. Harris, 12 Id. 446; Morris v. Corson, 7 Cow. 281; McKown v. Hunter, 30 N. Y. 625; Weinberger v. Shelly, 6 Watts & S. 343; Stancliff v. Palmeter, 18 Ind. 321; Gilbert v. Emmons, 42 Ill. 143; Johnson v. Shove, 6 Gray (Mass.) 498.

"In Moulton v. Beecher, 1 Abb. N. C. 193, the complaint alleged that the prosecution had been terminated in plaintiff's favor by the entry of a nolle prosequi on motion of the district attorney, and by leave of the court made after consultation with the defendant, and at his request. On demurrer, it was held that this disclosed a sufficient termination of the proceeding. The report of the case contains the briefs of counsel on both sides. They are very elaborate, and probably refer to all the authorities upon the point.