GA Code § 51-7-40 (2021)
2021 Georgia Code|Title 51 - Torts|Chapter 7 - False Arrest, False Imprisonment, Malicious Prosecution, and Abusive Litigation|Article 3 - Malicious Prosecution|§ 51-7-40. Right of Action for Malicious Prosecution

 A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.   (Orig. Code 1863, § 2924; Code 1868, § 2931; Code 1873, § 2982; Code 1882, § 2982; Civil Code 1895, § 3843; Civil Code 1910, § 4439; Code 1933, § 105-801.)   Editor's notes.   - Georgia law makes a distinction between an action for malicious prosecution and one for malicious use of civil process. The former is strictly a remedy for a malicious criminal prosecution and is governed by the Code sections in this article. The latter action has its basis in the common law. The essential elements of both actions, however, are substantially similar.   Law reviews.   - For annual survey on law of torts, see 42 Mercer L. Rev. 431 (1990). For article, "Symposium Protect and Serve: Perspectives on 21st Century Policing January 20, 2017: Urban Policing and Public Policy - The Prosecutor's Role," see 51 Ga. L. Rev. 1179 (2017). For comment on Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734 (1952), see 15 Ga. B. J. 81 (1952). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Application to Specific Cases    RESEARCH REFERENCES   Am. Jur. 2d.   - 52 Am. Jur. 2d, Malicious Prosecution, §§ 1 et seq., 6 et seq.   1 Am. Jur. Pleading and Practice Forms, Abuse of Process, § 2. 17 Am. Jur. Pleading and Practice Forms, Malicious Prosecution, § 1 et seq.   C.J.S.   - 54 C.J.S., Malicious Prosecution, § 1 et seq.   ALR.    - Institution of prosecution on false information without investigation as showing lack of probable cause, 5 A.L.R. 1688.    Injury incident to notoriety or publicity as an element of damages in action for malicious prosecution, 37 A.L.R. 658.    Expense of litigation, other than taxable costs, as basis of separate action against party to former suit, 39 A.L.R. 1218.    Action for malicious prosecution or false arrest based on extradition proceeding, 55 A.L.R. 353.    Status, character, competency, or personal interest of attorney as affecting rule regarding advice of counsel in action for malicious prosecution, 81 A.L.R. 516.    Liability of municipality or other political unit for malicious prosecution, 103 A.L.R. 1512.    Entry of judgment under power of attorney to confess judgment as ground of action for malicious prosecution, 112 A.L.R. 331.    Defendant's acquiescence in, approval of, or silence regarding, acts of another for which he was not otherwise responsible as ground of liability in action for malicious prosecution or false arrest, 120 A.L.R. 1322.    Right, in civil action for malicious prosecution, to prove or rely on facts not known to defendant when he began prosecution or action which show or tend to show guilt or liability of plaintiff, 125 A.L.R. 897.    Malicious prosecution: may prosecutor avoid liability on the ground of probable cause or absence of malice, despite the fact that his motive was to collect debt, enforce claim for damages, or recover property, 139 A.L.R. 1088.    Malicious prosecution predicated upon prosecution, institution, or instigation of administrative proceedings, 143 A.L.R. 157.    Malicious prosecution: possession of stolen property as probable cause, 172 A.L.R. 1340.   Civil liability of law enforcement officers for malicious prosecution, 28 A.L.R.2d 646; 81 A.L.R.4th 1031.   Maintainability of malicious prosecution action by one prosecuted on charge not amounting to a crime or under defective accusation, 36 A.L.R.2d 786.   Malicious prosecution or similar tort action predicated upon disciplinary proceedings against an attorney, 52 A.L.R.2d 1217.   Assignability of claim for malicious prosecution, 76 A.L.R.2d 1286.   Judgment in false imprisonment action as res judicata in later malicious prosecution action, or vice versa, 86 A.L.R.2d 1385.   Probable cause or want thereof, in malicious prosecution action, as question of law for court or of fact for jury, 87 A.L.R.2d 183.   Liability of attorney acting for client, for false imprisonment or malicious prosecution of third party, 27 A.L.R.3d 1113; 46 A.L.R.4th 249.   Use of criminal process to collect debt as abuse of process, 27 A.L.R.3d 1202.   Admissibility of defendant's rules or instructions for dealing with shoplifters, in action for false imprisonment or malicious prosecution, 31 A.L.R.3d 705.   Malicious prosecution predicated upon prosecution, institution, or instigation or disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.   Malicious prosecution: liability of perpetrator of crime for damages to innocent persons subjected to prosecution for the commission of such crime, 40 A.L.R.3d 1005.   Threatening, instituting, or prosecuting legal action as invasion of right of privacy, 42 A.L.R.3d 865.   Civil liability of judicial officer for malicious prosecution or abuse of process, 64 A.L.R.3d 1251.   May action for malicious prosecution be predicated on defense or counterclaim in civil suit, 65 A.L.R.3d 901.   Malicious prosecution: liability for instigation or continuation of prosecution of plaintiff mistakenly identified as person who committed an offense, 66 A.L.R.3d 10.   Proceedings for injunction or restraining order as basis of malicious prosecution action, 70 A.L.R.3d 536.   Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment, 79 A.L.R.3d 882.   Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.   Civil liability of attorney for abuse of process, 97 A.L.R.3d 688.   Liability for negligently causing arrest or prosecution of another, 99 A.L.R.3d 1113.   Venue in action for malicious prosecution, 12 A.L.R.4th 1278.   Termination of criminal proceedings as result of compromise or settlement of accused's civil liability as precluding malicious prosecution action, 26 A.L.R.4th 565.   Liability of attorney, acting for client, for malicious prosecution, 46 A.L.R.4th 249.   Malicious prosecution: defense of acting on advice of justice of the peace, magistrate, or lay person, 48 A.L.R.4th 250.   Liability of better business bureau or similar organization in tort, 50 A.L.R.4th 745.   Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence, 81 A.L.R.4th 1031.   Admissibility of evidence of polygraph test results, or offer or refusal to take test, in action for malicious prosecution, 10 A.L.R.5th 663.   Construction and application of Federal Tort Claims Act provision (28 USCA § 2680(h)) excepting from coverage claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 152 A.L.R. Fed. 605.