In England, this action could only arise out of an original criminal proceeding;3 but in the United States, it may also be based upon a malicious civil suit.4 Actions like forcible entry and detainer,5 replevin,6 ejectment,7 may be the basis for an action of malicious prosecution, as may also the misuse of extraordinary remedies,8 or auxiliary proceedings9 such as garnishment,10 or attachment.

1 26 Cyc, p. 6. 2 26 Cyc, p. 8.

3 Quartz Hill Consol. Gold Min. Co. vs. Eyre, 11 Q. B. D., 674; 52 L. J. Q. B., 4488.

The subject of suits for malicious prosecution based upon civil suits, and the reason why the English rule should not apply in this country, are thoroughly discussed by the Court in the case of Pope vs. Pollock,11 in the following language:

"Will the prosecution of a suit in forcible entry and detainer, which results in a verdict for the defendant, where the same is prosecuted maliciously, and without probable cause, afford ground for an action in the nature of a suit for malicious prosecution, is the question in this case. The more common causes for actions for malicious prosecution are groundless and malicious prosecutions of criminal charges. But that actions of the kind can be maintained where there has been an unjustifiable and malicious seizure of the property of the complaining party, as well as of the person, there is no question. Whether or not such an action may be maintained where there has been no deprivation of liberty, or of the possession, use or enjoyment of property, has been the subject of much discussion, and of contrary holdings. It appears that in England, by the common law, prior to the statute of Marlbridge, 52 Hen. Ill (1259), actions of this character were allowed, but since the passage of that statute, which gave the successful defendant judgment for costs against the plaintiff, the right to maintain such actions has been uniformly denied, it being held that if one prosecutes an ordinary civil action against another maliciously, and without reasonable or probable cause, an action for the resulting damage is not maintainable. So, too, in this country, many decisions of like tenor have been made. The courts have said that courts of law are open to every citizen, and that the costs which the defendant gets are a compensation for the wrong. If every suit may be retired on an allegation of malice, the evil would be intolerable, and the malice in each subsequent suit would be likely to be greater than in the first; and that, if a defendant ought to have damages upon a false claim, then the plaintiff ought to have damages on a false plea, which would make litigation interminable. Beauchampe vs. Croft, Klelw., 26; Fitzh. Nat. Brev., 429; 1 Bac. Abr., 141; Savil vs. Roberts, 1 Salk., 14; Bull. N. P., 11; Parker vs. Langley, Gilb., K. B., 163; Goslin vs. Wilcock, 2 Wils., 305; 1 Amer. Lead. Cas., 261, note; Cooley, Torts, 189; Townsh. Sland. & Lib., Sec. 410; Taylor vs. Wilson, 1 N. J. Law, 362; Woodmansie vs. Logan, 2 N. J. Law, 68; Kramer vs. Stock, 10 Watts, 115; Thomas vs. Rouse, 2 Brev., 75; Ray vs. Law, Pet. C, 207; Potts vs. Inlay, 4 N. J. Law, 330; McNamee vs. Minke, 49 Md., 122; Muldoon vs. Rickey, 103 Pa. St., 110; Wetmore vs. Mellinger, 64 Iowa, 751; 18 N. W. Rep., 870; Bitz vs.

4 Payne vs. Donegan, 9 III. App., 566; Savage vs. Brewer, 16 Pick. (Mass.), 453, 28 Am. Dec., 255.

5 Nichelson vs. Cameron Lumber Co., 39 Wash., 569; 81 Pac., 1059.

6 McPherson vs. Runyon, 41 Minn., 524, 43 N. W., 392.

7 Slater vs. Kimbro, 91 Ga., 217, 18 S. E., 296. It is only where there are special circumstances of oppression, however, that an action of ejectment will furnish the basis for an action of malicious prosecution.

8 Dibrell vs. Robinson, 1 Tex. App., Am. Cases, Sec. 721. This is particularly true in the case of the misuse of injunctions. Mitchell vs. Southwestern R. Co., 75 Ga., 398; Crate vs. Kohlsaat, 44 111. App., 460; Newark Coal Co. vs. Upson, 40 Ohio St., 17.

9 Roberts vs. Keeler, 111 Ga., 181, 36 S. E., 617.

10 Nix vs. Goodhill, 95 Iowa, 282,

63 N. W., 701, 58 Am. St. Rep., 434.

11 46 Ohio St., 367, 21 N. E., 356,

15 Am. St. Rep., 608, 4 L. R. A., 255.

Meyer, 40 N. J. Law, 252; Mayer vs. Walter, 64 Pa.

St., 283.

"Where such suits have been maintained, the right has been placed upon the ground that taxable costs, including, as in most states, but the fees of witnesses and officers of court, afford a very partial and inadequate remuneration for the necessary expenses of defending an unfounded suit, and no remedy at all to repair the injury received. It is upon this principle, in part, that actions have ever been sustained for malicious criminal prosecutions, in which no costs are taxed in favor of the accused. Where an action is brought and prosecuted maliciously, and without probable cause, it is an abuse of legal process, and the plaintiff asserts no claim in respect to which he has any right to invoke the aid of the law. It is a wrong to disturb one's property or peace; and to prosecute one maliciously and without probable cause, is to do that person a wrong. The common law declares that for every injury there is a remedy, and to deny remedy in such case would violate this wholesome principle. The burden of establishing both malice and want of probable cause will prove a sufficient check to reckless suits of this character. When the plaintiff sets the law in motion, he is the cause, if it be done ground-lessly and maliciously, of defendant's damage, and the defendant but stands upon his legal rights when he calls upon the plaintiff to prove his case to the satisfaction of judge and jury. Vanduzor vs. Linder-man, 10 Johns, 106; Pangburn vs. Bull, 1 Wend., 345; Whipple vs. Fuller, 11 Conn., 582; Closson vs. Staples, 42 Vt., 209; Marbourg vs. Smith, 11 Kan., 554; Bigelow, Torts (2d Ed.), 71; Smith vs. Smith, 56 How. Pr., 316; Bump vs. Betts, 19 Wend., 421; Woods vs. Finnell, 13 Bush., 628; Hoyt vs. Macon, 2 Colo., 113; Payne vs. Donegan, 9 111. Appl, 566; McCardle vs. McGinley, 86 Ind., 528; Juchter vs. Boehm, 67 Ga., 534; Lawrence vs. Hagermann, 56 111., 68; Atwood vs. Monger, Style, 378. See, also, an able review of the subject by John D. Lawson, Esq., of the St. Louis Bar. 21 Amer. Law Rep., 281. There seems, as will appear by reference to these citations, abundant authority in other states of the Union to support the proposition that a suit may be maintained for damages arising from the prosecution of an ordinary civil action, when the same is done maliciously, and without probable cause, but without disturbance to person or property. The precise question has not been made in Ohio, though in two cases (Tomlinson vs. Warner, 9 Ohio, 104, and Fortman vs. Rottier, 8 Ohio St., 548), this Court has held that an action may be maintained for maliciously and without probable cause, suing out and levying a writ of attachment. So, where one has been wrongfully deprived of the use of his land by the prosecution, maliciously and without probable cause, of an injunction proceeding, the Court held (Coal Co. vs. Upson, 40 Ohio St., 17): that an action for malicious prosecution will he. The language of the opinion, page 25, is: 'It may now be considered the approved doctrine that an action for the malicious prosecution of a civil suit may be maintained whenever, by virtue of any order or writ issued in the malicious suit, the defendant in that suit has been deprived of his personal liberty, or of the possession, use, or enjoyment, of property of value.' It will be noted, that, where damages for the prosecution, maliciously and without probable cause, of an ordinary civil action are refused, one of the principal reasons given is that the allowance of taxed costs is regarded as sufficient punishment to the plaintiff for prosecuting, and recompense to the defendant for defending, such an action. In England, the taxed costs which may be awarded to a successful defendant, include not only fees of court officers and witness, but attorney's charges for preparing the case for trial, and the honorarium of the barrister who tries it, and in a number of American states a like taxation of costs prevails. But in Ohio, the successful party in an ordinary action recovers only the fees of witnesses and court officers, leaving his own personal expenses in preparing the case, in attending the trial, and his attorney's fees for preparation and for trial, to be paid without reimbursement. Taxed costs are not here regarded as affording full compensation for expenses incurred, for in cases where damages may be recovered for malicious injury, fees of counsel, as well as court costs, are included in compensatory, and not punitive damages. The reason for the rule having failed, there is much ground for saying that the rule itself fails."

It is clear, that this action may be maintained for maliciously and without probable cause, suing out an attachment,12 and seizing the goods of the plaintiff,13 even if there was an indebtedness at the time14 due by the plaintiff.15 The reason for the rule is founded in a well-known principle of common law. In Braid vs. Hinchman,16 the Court said: 'There are but few, if any, wrongs for which the law does not provide a remedy, and if a man is hurt or damaged in his property, business, credit, or reputation, by the malicious commencement or prosecution of a civil suit, without probable cause, the better doctrine is that he can maintain an action on the case for such hurt or damage."

12 Burjhart vs. Jennings, 2 W. Va., 242. 13 Savage vs. Brewer, 16 Pick.

(Mass.), 453. 14 Spaids vs. Barrett, 57 III., 289;

11 Am. Rep., 10.

15 i. e. the plaintiff in the action for malicious prosecution, who. would have been the defendant in the original action.

16 68 Mich., 590 36; N. W., 664.

The original suit, whether criminal or civil, must have been instituted or participated in by the defendant.17 Liability for malicious prosecution may attach either through the personal acts of the defendant18 or the acts of his agent,19 or attorney,20 or by ratification by the defendant.21