The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-07-20

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proved, and cites Sinclair vs.. Eldred, 4 Iaun
ton, 7 4 Bingham, 10 Harkrader VS.. Moore
50 Cal, IA Gloon ys. Gerry, IL Gray, ZUI
Kidder vs.. Parkhurst, 3 Allen, 1913 likewise
Starkie, so.
And again, it was not shown that the prOsecu
ton complained of terminated in favor of thu
present plaintiff, and to justify a recovery, tht
termination of the proceeding alleged to hav'
been malicious must affrmatiVely appear to haV'
been in favor of the defendant in that proceeding
that the action will not lie if the indictment II
nolle pressed, or if the proceedings complained
OF terminated by consent of the parties, and OF
these points cites De Forest vs.. Barker, 1 Rob
n. T., 703 Gorton vs. De Angels, 6 Wend.
4l8 Bacon VS.. Toune. 4 Cush, 2l7 Parker vs.
Farley, 10 Cush, 4S2 and Lord Tenterden's
dictum, NJ. & M, 495, l Harrison's Digest
1850. An action for a malicious arrest cannot be
maintained where the former cause was terminal
ed by a $ stet processus by the consent of the
parties.
And per contra,
Mr.. Dole, for the plaintiff in this action, makes
the following points
The declaration of the complaint was for ma
licious arrest and abuse o flegal process to compel
the plaintiff to give up certain papers, and 1t was
not necessary to prove that the prosecution had
determined, and cites 2 Greenl. on EVid., 452
Bebinger VS.. Sweet, - n. Y. Superior Court,
478; Bigelow's Leading Cases, Granger VS.. Hill,
lS4, 1877, 1873 billiards. Rem. for Torts, 34l.
And again If the Court should consider that
this was a complaint for malicious prosecution,
they must find that the prosecution was a crimi-
nal one that the prosecutor had this plaintiff in
his power that he only voluntarily discontinued
the prosecution when be had gained his end
which could hardly be called a compromise or Il
withdrawal of prosecution by agreement.
Such a determination would probably satisfy
the rule, " An action has been held to be prinla
facie sustained by proof that the suit complained
Of yraS uo1,nforIIu y. discontinued tIrOrrIo- ,-on
the defendant the onus of showing probable
cause - and thereupon cites l billiard on Torts,
1867.
And again A discharge of the person by the
prosecuting attorney is the usual mode of termi-
mating the prosecution in Illinois.
A bill may not be ignored before be may main
tain an action for malicious prosecution. Hill
liard's Remedies for Torts, 524, 5 SO.
a distinction is sought to be established in this
case by the plaintiffs counsel between an action
for malicious prosecution and an action for ma
licious arrest, because, as it is argued, though in
an action for malicious prosecution it might be
necessary that the action should be closed by an
acquittal, yet in an action for malicious arrest or
an abuse of the process of the Court, it would not
be necessary to show that the matter had been
prosecuted to an end and an acquittal had.
On examining the complaint, it will be evident
that this is an action for malicious prosecution.
The gravamen of the complaint is that this de-
fendant, intending to injure this plaintiff, and to
bring him into public disgrace and to cause him
to be arrested and held in custody, maliciously
and falsely charged the plaintiff on his oath. &C.,
&c, and upon such charge procured the Judge to
issue his warrant to apprehend the plaintiff and
bring him before the Judge to be dealt with &C
cording to law, and in consequence of said COM
plant the plaintiff was arrested, brought in
custody before the Judge, and there charged as
aforesaid, and the plaintiff pleaded not guilty.
This IL a oOmplaInt for malicious nrOSaoufiOp in
the ordinary and common form.
And though, at the trial, after the point was
made for the then defendant that it was shown
that the plaintiff was not acquitted, and the pro-
secutiOn was withdrawn on terms assented to by
the plaintiff in this action, and il was answered
that the plaintiff would not insist on a verdict for
malicious prosecution, but for malicious arrest
alone, whereby the process of the Court was
abused to obtain private ends. Such q statement
on the part of the plaintiff would not alter the
nature of the case, for, Of course, the plaintiff,
when he saw his verdict endangered, would take
one on any ground on which he could get it.
Now the proposition that it is necessary in an
action for malicious prosecution to show that the
previous action terminated in an a~cquittal of the
is so well established as not to be open
for debate, and more especially when the action
has terminated by a comprOmise-that is to say,
on terms agreed to by the plaintiff. This rule is
m reason, for 1t cannot be made evident
that the plaintiff would not have been
and if he should have been convicted it
would have been evident that the accusation was
not false and malicious, and to maintain this
action the accusation must have been both false
and malicious. Accusations for malicious injury
and for assault and battery, and such like actions,
are very largely of IA personal nature at all times;
they are not feIOnies which one is bound to pro-
secute in the interest of public morality. Suppose
my one should take down a fence, and the OppO- !
site party, knowing that the fence was his own,
md believing that the removal was made with the
intention of injuring him, should ommence
prosecution for malicious injury, and then the
person so arrested should come to him and say
he was sorry for what he had done, and
should receive as a reply, {" Well, if you go and
put the fence back, | will say nothing more about
t and stop the prosecution" and thereupon the
prosecution is stopped, it will commend itself to
he reason of all men that it would be impossible
o sustain an action for malicious prosecution
lfter that, for the plaintiff himself would have in
he former prosecution rectifed his supposed
wrong and made a condition for himself that he
hould not be prosecuted To hold otherwise
would enable him simply to lay a trap for his
lnWary and trusting adversary-it would be to
How a punishment for kindly and neighborly
ceiling and forbearance.
1t is urged for the defence that the refusal of
he presiding Judge to order q nonsuit or verdict
or the defendant at the close of evidence for the
lcltIlUdul, IL uC lulLlhS 10 III ~ a. W
he jury, is no ground for exceptions, and counsel
ties 4 Cush., Ala and Alb 5 Cush., 67 and 60
8 Mass, 481 u Allen, $50.
The very question before this Court is whether
here is any evidence at all to 60 to the jury to
Import an action for malicious prosecution. If
Judge declines ordering q non-suit because he
of opinion that there is evidence to 60 to the
Try, it is certainly no ground of exception, 4
4l8, because that the defendant has no
ight to require the Judge to express an opinion
n the weight and suffciency of the evidence to
lpport the plaintiffs case. > Cush., 60.
But this is a different case. The Court did not
efuse to order a non-suit, because he thought
mere was evidence to 60 to the jury but the
lotion went to the whole nature of the case.
he Chief Justice overruled the motion pro lorna
SO that exceptions might be taken and car
ed up. He might have said, 81 reserve the
oint, " as provided by the Civil Code, section
"a, and the action taken under the circum-
ances Of the case was equivalent to reserving the
pint.
On the whole, the question was fairly raised,
nd all the Judge was called upon to decide was
ot on the suficiency of the testimony. but
neither, by the well adjudicated rules of law on
e whole case as shown, the defendant was
lble indeed, the whole case comes within the
OF the case cited by the plaintiff. Went