malicious prosecution

Malicious \Ma*li"cious\, a. [Of. malicius, F. malicieux, fr. L.
   malitiosus. See {Malice}.]
   1. Indulging or exercising malice; harboring ill will or
      enmity.
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            I grant him bloody, . . .
            Sudden, malicious, smacking of every sin
            That has a name.                      --Shak.
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   2. Proceeding from hatred or ill will; dictated by malice;
      as, a malicious report; malicious mischief.
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   3. (Law) With wicked or mischievous intentions or motives;
      wrongful and done intentionally without just cause or
      excuse; as, a malicious act.
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   {Malicious abandonment}, the desertion of a wife or husband
      without just cause. --Burrill.

   {Malicious prosecution} or {Malicious arrest} (Law), a wanton
      prosecution or arrest, by regular process in a civil or
      criminal proceeding, without probable cause. --Bouvier.
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   Syn: Ill-disposed; evil-minded; mischievous; envious;
        malevolent; invidious; spiteful; bitter; malignant;
        rancorous; malign.
        [1913 Webster] -- {Ma*li"cious*ly}, adv. --
        {Ma*li"cious*ness}, n.
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MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies. These terms 
import a wanton prosecution or arrest, made by a prosecutor in a criminal 
proceeding, or a plaintiff in a civil suit, without probable cause, by a 
regular process and proceeding, which the facts did not warrant, as appears 
by the result. 
     2. This definition will be analysed by considering, 1. The nature of 
the prosecution or arrest. 2. Who is liable under it. 3. What are malice and 
probable cause. 4. The proceedings. 5. The result of the prosecution and 
afterwards, 6. The remedy. 
     3.-Sec. 1. Where the defendant commenced a criminal prosecution 
wantonly and in other respects against law, he will be responsible. Addis. 
R. 270; 12 Conn. 219. The prosecution of a civil suit, when malicious, is a 
good cause of action, even when there has been no arrest. 1 P. C. C. 210; 11 
Conn. 582; 1 Wend. 345. But no action lies for commencing a civil action, 
though without sufficient cause. 1 Penna. R. 235. 
     4.-Sec. 2. The action lies against the prosecutor and even against a 
mere informer, when the proceedings are malicious. 5 Stew. & Port. 367. But 
grand jurors are not liable to an action for a malicious prosecution, for 
information given by them to their fellow jurors, on which a prosecution is 
founded. Hardin, 556. Such action lies against a plaintiff in a civil action 
who maliciously sues out the writ and prosecutes it; 16 Pick. 453; but an 
action does not lie against an attorney at law for bringing the action, when 
regularly employed. 16 Pick. 478. See 6 Pick. 193. 
     5.-Sec. 3. There must be malice and want of probable cause. 1 Wend. 
140, 345; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii; Cooke, 90; Litt. Sel. 
Cas. 106; 4 Litt. 334; 3 Gil. & John. 377; 1 N. & M. 36; 12 Conn. 219; 3 
Call. 446; 2 Hall, 315; 3 Mason, 112, 2 N. & M. 54,143. See Malice; Probable 
cause. 
     6.-Sec. 4. The Proceedings under which the original prosecution or 
action was held, must have been regular, in the ordinary course of justice, 
and before a tribunal having power to ascertain the truth or falsity of the 
charge, and to punish the supposed offender, the now plaintiff. 3 Pick. 379, 
383. When the proceedings are irregular, the prosecutor is a trespasser. 3 
Blackf. 210. See Regular and irregular process. 
     7.-Sec. 5. The malicious prosecution or action must be ended, and the 
plaintiff must show it was groundless, either by his acquittal or by 
obtaining a final judgment in his favor in a civil action. 1 Root, R. 553; 1 
N. & M. 36; 2 N. & M. 54, 143; 7 Cowen, 715; 2 Dev. & Bat. 492. 
     8.-Sec. 6. The remedy for a malicious prosecution is an action on the 
case to recover damages for the injury sustained. 5 Stew. & Porter, 367; 2 
Conn. 700; 11 Mass 500; 6 Greenl. 421; 3 Gill. & John. 377. See Case; 
Regular and irregular process. 
     See, generally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1 T. R. 493 
to 551;  Bac. Ab. Actions on the case, H; Bouv. Inst. Index, h.t.