the plaintiff guilty of a crime, he instituted the prosecution, he is not liable, whatever may have been his own personal malice for setting it on foot. Probable cause, in this sense, is a defense to the action, without regard to motive. To this point, he must show that he was told or knew of the existence of specific facts, which either would constitute crime or which, upon competent advice, he supposed would constitute crime. French v. Smith, supra. But if the party fail in showing such ground of action as would have induced prudent and careful men to have believed in the plaintiff's guilt, and to have instituted the prosecution, he may nevertheless, if he choose, show that in fact he did act upon what he at the time regarded as good cause either from common report or remote circumstances, such as excited suspicions in his mind to the extent of creating belief of guilt, although short of probable cause. If this were not so, then want of probable cause and malice would be equivalent terms, which the cases show they are not. The only distinction which can be supposed to exist in regard to them is that one is general and the other is particular; one has reference to the common standard, and the other to the mind and motive of the defendant. ... To illustrate the point more fully. One may have an idiosyncrasy or a delusion, whereby he believes in the advice of his minister or schoolmaster upon legal matters, or in the changes of the moon, or the flight of birds, in regard to secret facts and the hidden purposes of others, or in mesmerism or spiritualism, and by some of these means may sincerely believe he has detected the guilt of the plaintiff, and the mode of proving it, and in all good faith may have acted upon this fallacy in instituting the prosecution. Here is certainly no probable cause for the prosecution. But can the party be found guilty of instituting the prosecution from motives of malice? Certainly not, if words are to have their ordinary signification. Section 2. Process obtained with Just Cause, but Wrongfully Used (Malicious Abuse of Process; Malicious Arrest) 982. HERMAN v. BRINKERHOFF. (1839. 8 Watts, 240.) GIBSON, C. J. Though there is a resemblance betwixt an action for the malicious prosecution of a criminal charge and an action for a malicious arrest or holding to excessive bail in a suit, the cases are not entirely parallel. In [an action for wrongful] criminal prosecution, want of probable cause must be combined with malice; but the existence of a cause of action is not a defense to a suit for an excessive use of the process in a civil suit. . . . The gist of the action, in the one case, is the origination of a malicious and groundless prosecution, which ipso facto put the party in peril; in the other, it is not the origination of an action, but an abuse of the process consequent on it. 983. MAYER v. WALTER. (1870. 64 Pa. 283, 286.) SHARSWOOD, J. There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. Thus, if a man is arrested, or his goods seized in order to extort money from him, even though it be to pay a just claim other than that in suit, or to compel him to give up possession of a deed or other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause. Grainger v. Hill, 4 Bing. N. C. 212. It is evident that, when such a wrong has been perpetrated, it is entirely immaterial whether the proceeding itself was baseless or otherwise. We know that the law is good, but only if a man use it lawfully. On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also that the proceeding must be determined finally before any action lies for the injury; because, as it is said in Arundell v. Tregono, Yelv. 117, the plaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient; besides, the two determinations might be contrary and inconsistent. 984. Wood v. GRAVES. (1887. 144 Mass. 365, 366, 11 N. E. 567.) C. ALLEN, J. . . . There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was lawfully issued for a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievance to be redressed arises in consequence of subsequent proceedings. For example, if after an arrest upon civil or criminal process the person arrested is subjected to unwarrantable insults and indignities, is treated with cruelty, is deprived of proper food, or is otherwise treated with oppression and undue hardship, he has a remedy by an action against the officer, and against others who may unite with the officer in doing the wrong. It is sometimes said that the protection afforded by the process is lost, and that the officer becomes a trespasser ab initio. Esty v. Wilmot, 15 Gray, 168. Malcom v. Spoor, 12 Met. 279. This rule, however, is somewhat technical, and is hardly applicable to others than the officer himself. But the principle is general, and is applicable to all kinds of abuses outside of the proper service of lawful process, whether civil or criminal, that for every such wrong there is a remedy, not only against the officer whose duty is to protect the person under arrest, but also against all others who may unite with him in inflicting the injury. Perhaps the most frequent form of such abuse is by working upon the fears of the person under arrest for the purpose of extorting money or other property, or of compelling him to sign some paper, to give up some claim, or to do some other act, in accordance with the wishes of those who have control of the prosecution. The leading case upon this subject is Grainger v. Hill, 4 Bing. N. C. 212, where the owner of a vessel was arrested on civil process, and the officer, acting under the direction of the plaintiffs in the suit, used the process to compel the defendant therein to give up his ship's register, to which they had no right. He was held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abusing it, to effect an object not within its proper scope. . . . On similar grounds an officer becomes responsible in damages for abuse of process, or as trespasser ab initio by reason of such abuse, who omits to give an impounded beast reasonable food and water while under his care (Adams v. Adams, 13 Pick. 384); or who stays too long in a store where ... he has attached goods (Rowley v. Rice, 11 Met. 337; Williams v. Powell, 101 Mass. 467; Davis v. Stone, 120 Mass. 228); or who keeps a keeper too long in possession of attached property (Cutter v. Howe, 122 Mass. 541); or who places in a dwelling-house an unfit person as keeper, against the owner's remonstrance (Malcom v. Spoor, ubi supra). 985. BALDWIN v. WEED SUPREME COURT OF NEW YORK. 1837 17 Wend. 224 THIS was an action for malicious prosecution, tried at the Saratoga Circuit in May, 1835, before the Hon. ESEK COWEN, then one of the circuit judges. The plaintiff charged the defendant with having maliciously and without probable cause procured him to be indicted for obtaining goods by false pretenses from one James Sowden, on which indictment the plaintiff was tried and acquitted. It was also stated in the declaration that the defendant had procured the plaintiff to be arrested in Vermont, on the requisition of the Governor of this State, and to be brought here for trial. On the trial of this cause the following facts appeared: The plaintiff, the defendant, and one Wood had been partners in the business of making and vending blacking, and transacted such business under the name of "J. Wood & Co." In the spring of 1833 the partnership was dissolved, though it was agreed between the parties that the materials on hand should be made up and vended by the plaintiff, who was also authorized to collect the debts due the firm. In September, 1833, the plaintiff called upon James Sowden to obtain a quantity of stocks and moccasins to sell on commission, with which he was accordingly furnished, and for which he gave an accountable receipt, signing thereto the partnership name of J. Wood & Co., and immediately afterwards absconded. . . . The defendant, Weed, appeared as witness before the grand jury. .. Weed procured a requisition from the Governor of this State for the arrest of the plaintiff in Vermont, was present at his arrest, and, when he got him into this State, caused him to be fettered and manacled with irons and chains, and to be thus transported from Crown Point to Ballston. It also appeared that the sole object of the proceeding on the part of Weed was to secure two small debts, amounting together to less than $100; that the plaintiff, to obtain his liberation from prison, executed a bond to the defendant for the delivery of property and payment of money to the amount of $700, and the defendant then procured bail for the plaintiff, and promised that he would not appear as a witness against him, and would use his influence to have the prosecution dropped. The judge charged the jury that there was no legal foundation for the indictment, as it charged the fraud to have been committed on Sowden, who had not been defrauded, as all the partners of the firm were liable to him. . . . To hold the defendant responsible in this view of the question, it was not enough that defendant had mistaken the law; if he had acted honestly, he was not accountable; but, if in his communication to the district attorney he had willfully misstated or suppressed material facts, knowing them to be material, he ought to be held responsible, and such damages should be awarded as they should think right in a case where there was manifestly evidence of malice; but he cautioned them to lay out of view the proof of unreasonable severity which had been exercised in the arrest and detention of the plaintiff, for which there could be no recovery under the declaration in the cause. The jury found a verdict for the plaintiff for $500, which the defendant moved to set aside. J. Ellsworth and S. Stevens, for the defendant. C. Loveridge and R. Bates, for the plaintiff. By the Court, NELSON, C. J. The material question here is whether want of probable cause in the criminal proceedings against the plaintiff was sufficiently established on the trial of this cause. The leading principles involved in actions for malicious arrest and prosecutions have been so often and so ably discussed both in England and this country that they are extremely well settled. 1. When there is no dispute as to the facts relied on, the question of want of probable cause is for the determination of the Court. . . . I confess I am unable to say there was a want of probable cause, assuming all the facts to have been known to the prosecutor which were disclosed upon the trial. Here is moral guilt enough. . . . The goods were obtained by the false representation and conduct of the plaintiff by a suppression of the truth, and therefore not exactly within the statute, but so near to it that there existed a reasonable and wellgrounded suspicion of guilt; and the prisoner might better congratulate himself upon the good fortune of his escape from conviction of the crime, through the technicalities of the law, than to endeavor to realize a profit on the supposition the prosecution was commenced and conducted without reasonable foundation. . . ... 2. But, while I am of opinion this action for a malicious prosecution cannot be maintained upon the safe and established principles which govern it, I should regret if the defendant should escape without proper responsibility for the cruel, unnecessary, and oppressive manner in which he caused the execution of the warrant of the Governor of Vermont. This feature in the case has undoubtedly imparted much of the importance that has been justly attached to the suit, for without it I cannot think an action for a malicious prosecution would have been thought of. An action for trespass, assault, and false imprisonment should have been brought, and was the appropriate remedy for the excess of authority and abuse of the process. . . . The declaration should have contained a count for the abuse of the process, and which would have reached this particular objectionable conduct of the defendant, so highly outrageous and indefensible. The Court would probably yet permit a count to be added covering this ground of action. On the whole, I am of opinion that a new trial should be granted, the costs to abide the event. Mr. Justice COWEN concurred. ... Mr. Justice BRONSON. . . . Believing that the jury were not misled by the remarks of the judge, I am unable to concur in the order for a new trial. Whereupon the Court ordered a new trial, the costs to abide the event. 986. WHITE v. APSLEY RUBBER COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1902 181 Mass. 339, 63 N. E. 885 TORT with two counts for malicious prosecution and two for abuse of criminal process. Writ dated April 4, 1898. At the trial in the Superior Court before BLODGETT, J., it appeared that the plaintiff was in charge of a boarding-house belonging to the president of the defendant and used for its employees, the furniture belonging to the defendant; that the defendant wished to remove the plaintiff and put in his place a family named Gray; and that the Grays took possession of the kitchen and proposed to make use of the cooking stove, whereupon the plaintiff took the stove covers and carried them to his own room, so that the stove could not be used. One Bailey, an agent of the defendant, procured a warrant for the plaintiff's arrest on the charge of wilfully and maliciously injuring personal property of the defendant by the removal and concealment of the lids or covers, of a certain cooking stove. The plaintiff was arrested by an officer who came with Bailey, and, finally, was released on agreeing to move out of the house. This he did, taking his family and belongings. On the order of the officer he brought back the stove covers, which were not injured. The warrant was never returned into Court, and no further proceedings were had. The judge ordered a verdict for the defendant, and the plaintiff alleged exceptions, which, after the resignation of BLODGETT, J., were allowed by FESSENDEN, J. C. F. Choate, Jr., for the plaintiff. G. A. A. Pevey (J. T. Joslin with him), for the defendant. BARKER, J. It is conceded that criminal proceedings were begun against the plaintiff by a sworn complaint made to a trial justice charging that the plaintiff had willfully and maliciously injured the personal property of the defendant, and that a warrant for the plaintiff's arrest was issued upon the complaint and placed in the hands of a police officer who then went to the house where the plaintiff was. |