For in contemplation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in

Am. Rep. 233. See Mitchell v. S. W. R. Co., 75 Ga. 398; Potts v. Imlay, 4 N. J. L. 330; Parker v. Frambes, 2 Id. 156; Stimer v. Bryant, 84 Mich. 466; 47 N. W. Rep. 1099. Mr. Justice Sharwood, in the case of Mayer v. Walter (64 Pa. St. 285), said: "If the person be not arrested, or his property seized, it is unimportant how futile and unfounded the action may be, as the plaintiff, in consideration of law, is punished by the payment of costs." Followed in Muldoon v. Rickey, 103 Pa. St. 113. See Eberly v. Rupp, 90 Pa. St. 259; Kramer v. Stock, 10 Watts, 115; Westmore v. Mellinger, 64 Ia. 741; 52 Am. Rep. 465; Smith v. Hintrager, 67 Ia. 109; McNamee v. Minke, 49 Md, 122.

But in the United States there are, however, many decisions holding a contrary view and the recent cases undoubtedly established the rule that one who unsuccessfully proceeds civilly against another, with malice and without probable cause, is liable in damages to that other, although his person was not molested or his property seized. In the case of Smith v. Burrus, 106 Mo. 94, 16 S. W. Rep. 881, Sherwood, C. J., in delivering the opinion of the court, said: "The authorities are in conflict as to whether a petition states a cause of action which merely alleges that a civil action, brought and prosecuted maliciously and without probable cause, has been terminated in favor of the defendant; many of the authorities maintaining that no cause of action exists unless such civil process be accompanied by arrest of the person or seizure of the property, and that the plaintiff in such original action, in contemplation of law is sufficiently punished by the payment to costs. * * But there are numerous and able decisions in opposition to this view, and it is difficult to combat the force of the reasoning they employ. It is difficult to see why the right of the plaintiff, who, as defendant has been sued in a civil action maliciously and without probable cause, and who has been put to great expense in consequence thereof, should be altered or at all affected by the incident of his property having been attached or his person seized; for, in either case, the damage, the expense, and the cost of defending a suit, whether instituted by ca. sa. or attachment, or by civil summons, would be the same, and it is clear that the recovery of costs would not, under our practice, reimburse him for the attorney's fees, something which and other incidental expenses he does recover under the English practice. The better doctrine is that which allows an action to be maintained as well where property, etc. has not been seized as where it has."

* *

See Duncan v. Griswold (Ky. App.), 18 S. W. Rep. 354; Lindsay v. Larned, 17 Mass. 190; Autcliff v. June, 81 Mich. 477; 45 N. W. Rep. 1019; Kemp v. Brown, 43 Fed. Rep. 391; Whipple v. Fuller, 11 Conn. 582; Closson v. Staples, 42 Vt. 209; McCardle v. McGinley, 86 Ind. 538; 44 Am. Rep. 343; Lockenour v. Sides, 57 Ind. 360; 26 Am. Rep.

his favour which gives him his costs against the plaintiff (a). And special damage beyond the expense to which he

(a) It is common knowledge that the costs allowed in an action are hardly ever a real indemnity. The true reason is that litigation must end somewhere. If A. may sue B. for bringing a vexa

tious action, then, if A. fails to persuade the Court that B.'s original suit was vexatious, B. may again sue A. for bringing this latter action, and so ad infinitum.

58; White บ. Dingley, 4 Mass. 433; Brown V. Cape Girardeau, 90 Mo. 377; Woods v. Finnell, 13 Bush, 628; Payne v. Donegan, 9 Ill. App. 566; O'Neill v. Johnson (Minn.), 55 N. W. Rep. 601. It is the universal doctrine in both the United States and England that if one maliciously and without probable cause, sue out a civil process and cause another to be arrested or his property attached, such one is liable for damages sustained thereby. Moody v. Deutsch, 85 Mo. 242; Watkins v. Baird, 6 Mass. 511; Krug v. Ward, 77 Ill. 603; Tomlinson v. Warner, 9 Ohio, 104; Hayden v. Shed, 11 Mass. 500; Wood v. Weir, 5 B. Mon. 544; Nelson v. Danielson, 82 Ill. 545; Pierce v. Thompson, 6 Pick. 193; Walser v. Thies, 56 Mo. 89. But see Witascheck v. Glass, 46 Mo. App. 215; Stewart v. Sonneborn, 98 U. S. 187; Newark Coal Co. v. Upson, 40 Ohio St. 17; Hoyt v. Macon, 2 Colo. 113; Butchers etc. Co. v. Crescent City etc. Co., 37 La. An. 878; Noonan v: Orton, 30 Wis. 356.

Abuse of process. In the case of Wood v. Graves (144 Mass. 366), the court very concisely and clearly states the law of this action, as follows:

"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 an arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievances to be redressed arise in consequence of subsequent proceedings. For example, if after the arrest, upon civil or criminal process, the person arrested is subjected to unwarrantable insults and indignities, is treated cruelly, 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 unite with the officer in doing the wrong." See Johnson v. Reed, 136 Mass. 423; citing Page v. Cushing, 38 Me. 523. See Peters v. Tunell, 43 Minn. 459; 45 N. W. Rep. 866; Casey v. Hanrick, 69 Tex. 44; 6 S. W. Rep. 405; Wood v. Bailey (Mass.), 11 N. E. Rep. 573; Emery v. Ginnan, 24 Ill. App. 65; Cuhady v. Powell, 35 Id. 29; Barnett v. Reed, 51 Pa. St. 190; Savage v. Brewer, 16 Pick. 453.

"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 it is intended by law to effect; in other words perversion of it. On the other hand, legal process,

* *

*

civil or criminal, may be maliciously used so as to give rise to a cause of

has been put cannot well be so connected with the suit as a natural and probable cansequence that the unrighteous plaintiff, on the ordinary principles of liability for indirect consequences, will be answerable for them (b). "In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution" (c).

But there are proceedings which, though civil, are not ordinary actions, and fall within the reason of the law which allows an action to lie for the malicious prosecution of a criminal charge. That reason is that prosecution on a charge" involving either scandal to reputation, or the possible loss of liberty to the person" (d), necessarily and manifestly imports damage. Now the commencement of proceedings in bankruptcy against a trader, or the analogous process of a petition to wind up a company, is in itself a blow struck at the credit of the person or company whose affairs are thus brought in question. Therefore such a proceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong (e). Other similar exceptional cases were possible so long as there

(b) See the full exposition in the Court of Appeal in Quartz Hill Gold Mining Co. v. Eyre (1883), 11 Q. B. Div. 674, 52 L. J. Q. B. 488, especially the judgment of Bowen L. J.

(c) Bowen L. J., 11 Q. B. D. at p. 690. There has been a contrary decision in Vermont: Glosson v. Staples (1869), 42 Vt. 209; 1 Am. Rep. 316. We do not think it is generally accepted in other jurisdictions; it is certainly in accordance with the opinion expressed by Butler in his notes to Co. Lit. 161 a, but Butler

does not attend to the distinction by which the authorities he relies on are explained.

(d) 11 Q. B. Div. 691.

(e) Quartz Hill Gold Mining Co. v. Eyre (1883), note (b). The contrary opinions expressed in Johnson v. Emerson (1871), L. R. 6 Ex. 329, 40 L. J. Ex. 201, with reference to proceedings under the Bankruptcy Act of 1869, are disapproved: under the old bankruptcy law it was well settled that an action might be brought for malicious proceedings.

action where no objectis contemplated to be gained by it other than its proper effect and execution." Mayer v. Walter, 64 Pa, St. 285, followed in Eberly v. Rupp, 90 Id. 259. See Juchter v. Boehm, 67 Ga. 538; Crusselle v. Pugh, 71 Id. 747; Emerson v. Cochran, 111 Pa. St. 619; Smith v. Weeks, 60 Wis. 94.

were forms of civil process commencing with personal attachment; but such procedure has not now any place in our system; and the rule that in an ordinary way a fresh action does not lie for suing a civil action without cause has been settled and accepted for a much longer time (f). In common law jurisdictions where a suit can be commenced by arrest of the defendant or attachment of his property, the old authorities and distinctions may still be material (g). The principles are the same as in actions for malicious prosecution, mutatis mutandis: thus an action for maliciously procuring the plaintiff to be adjudicated a bankrupt will not lie unless and until the adjudication has been set aside (h).

Probably an action will lie for bringing and prosecuting an action in the name of a third person maliciously (which must mean from ill-will to the defendant in the action, and without an honest belief that the proceedings are or will be authorized by the nominal plaintiff), and without reasonable or probable cause, whereby the party against whom that action is brought sustains damage; but certainly such an action does not lie without actual damage (i).

IV.- Other Malicious Wrongs.

Conspiracy. The modern action for malicious prosecution has taken the place of the old writ of conspiracy and the action on the case grounded thereon (k), out of which it

(f) Savile or Savill v. Roberts (1698),

1 Ld. Raym. 374, 379; 12 Mod. 208, 210, and also in 5 Mod., Salkeld, and Carthew.

(g) See Cooley on Torts, 187. As to British India, see Raj. Chunder v. Roy Shama Soondari Debi, I. L. R. 4 Cal. 583.

(h) Metropolitan Bank v. Pooley (1885), 10 App. Ca. 210, 54 L. J. Q. B. 449.

(i) Cotterell v. Jones (1851), 11 O. B. 713, 21 L. J. C. P. 2.

(k) F. N. B. 114 D. sqq.

Conspiracy. Criminal conspiracy is an indictable offence and must be prosecuted in the name of the State as other crimes. It is different in both character and effect from conspiracy in connection with a civil action. By conspiracy in connection with a civil action, is meant the confederating and combining of two or more persons to jointly do

seems to have developed. Whether conspiracy is known to the law as a substantive wrong, or in other words whether two

something, for which either of them, doing the same thing alone, would be civilly responsible to any person injured thereby. That is, a conspiracy cannot be made the subject of a civil action unless something is done, which, without the conspiracy, would give a right of action. In the opinion of the court delivered in the late case of Van Horn v. Van Horn (52 N. J. L. 286), is a very learned exposition of the history and present meaning of conspiracy, as follows: "It is not necessary to consider the office of the ancient writ of conspiracy, and the process by which, in time, it was superseded by the later and more efficacious action on the case for conspiracy, and the still more modern action for malicious prosecution. Nor will it now be advantageous to show how long and difficult it was to separate the idea of a criminal conspiracy at common law, where the agreement or conspiracy was the gravamen of the offence, from the real complaint in a civil action, that the combination of two or more persons has enabled them to inflict a great wrong on plaintiff. The combination or conspiracy in the latter case was, therefore, a matter of aggravation and inducement only, of which one or all might be found guilty, while in the former, it was essential to show that two or more had joined in an agreement to do an unlawful act, or to do a lawful act in an unlawful manner. The distinction is now well established, that in civil actions the conspiracy is not the gravamen of the charge, but may be both pleaded and proved in aggravation of the wrong of which the plaintiff complains, and enabling him to recover against all as joint tortfeasors. If he fails in the proof of a conspiracy or concerted design, he may still recover damages against such as are shown to be guilty of the tort without such agreement." It is therefore apparent that the damage done is the gist of the action, not the conspiracy. When the mischief contemplated is accomplished, the conspiracy becomes important, as it may affect the means and measure of redress. The party wronged may look beyond the actual participants in committing the injury, and join with them as defendants all who conspired to accomplish it, and the fact of conspiracy may aggravate the wrong; but the simple act of conspiracy does not furnish a substantive ground of action." Robertson v. Parks, 76 Md. 118; 24 At. Rep. 413. See Booker v. Puryear, 27 Neb. 34; 43 N. W. Rep. 133. A simple conspiracy, however atrocious, unless it resulted in actual damage to the party, is not the subject of a civil action; something injurious must be actually done. Hutchins v. Hutchins, 7 Hill, 907; Stevens v. Rowe, 59 N. H. 579; Laverty v. Vanarsdale, 3 Cush. 145; McHenry v. Sneer. 56 Ia. 649; Percival v. Harres, 142 Pa. St. 369; 21 At. Rep. 876; Russell v. Post, 138 U. s. 425; People v. Flack, 125 N. Y. 374; 26 N. E. Rep. 267; Allen v. Kirk, 81 Ia. 658; 47 N. W. Rep. 107; Hablichtel v. Yambert, 75 Ia, 539; People v. Sheldon, 66 Hun, 590; 21 N. Y. S. Rep. 590; Morley v.