2.
Malice is express or implied. It is express, when the party evinces an
intention to commit the crime, as to kill a man; for example, modern
duelling. 3 Bulstr. 171. It is implied, when an officer of justice is
killed in the discharge of his duty, or when death occurs in the
prosecution of some unlawful design.
3.
It is a general rule that when a man commits an act, unaccompanied by
any circumstance justifying its commission, the law presumes he has
acted advisedly and with an intent to produce the consequences which
have ensued. 3 M. & S. 15; Foster, 255; 1 Hale, P. C. 455; 1 East,
P. C. 223 to 232, and 340; Russ. & Ry. 207; 1 Moody, C. C. 263; 4
Bl. Com. 198; 15 Vin. Ab. 506; Yelv. 105 a; Bac. Ab. Murder and
Homicide, C 2. Malice aforethought is deliberate premedi-tation. Vide
Aforethought.
MALICE, torts. The doing any act injurious to another without a just cause.
2.
This term, as applied to torts, does not necessarily mean that which
must proceed from a spiteful, malignant, or revengeful disposition, but a
conduct injurious to another, though proceeding from an ill-regulated
mind not sufficiently cautious before it occasions an injury to another.
11 S. & R. 39, 40.
3.
Indeed in some cases it seems not to require any intention in order to
make an act malicious. When a slander has been published, therefore, the
pro-per question for the jury is, not whether the intention of the
publication was to injure the plaintiff, but whether the tendency of the
matter published, was so injurious. 10 B. & C. 472: S. C. 21 E. C.
L. R. 117.
4.
Again, take the common case of an offensive trade, the melting of
tallow for instance; such trade is not itself unlawful, but if carried
on to the annoyance of the neighboring dwellings, it becomes unlawful
with respect to them, and their inhabitants may maintain an action, and
may charge the act of the defendant to be malicious. 3 B. & C. 584;
S. C. 10 E. C. L. R. 179.
MALICE AFORETHOUGHT, pleadings.
In an indictment for murder, these words, which have a technical force,
must be used in charging the offence; for without them, and the
artificial phrase murder, the indictment will be taken to charge
manslaughter only. Fost. 424; Yelv. 205; 1 Chit. Cr. Law, *242, and the
authorities and cases there cited.
2.
Whenever malice aforethought is necessary to constitute the offence,
these words must be used in charging the crime in the indictment. 2
Chit. Cr. Law, *787; 1 East, Pl. Or. 402. 2 Mason, R. 91.
MALICIOUS. With bad, and unlawful motives; wicked.
MALICIOUS ABANDONMENT. The forsaking without a just cause a husband by the wife, or a wife by her husband. Vide Abandonment, Malicious.
MALICIOUS MISCHIEF, This
expression is applied to the wanton or reckless de- struction of
property, and the wilful perpetration of injury to the person. Alis.
Prin. 448; 3 Dev. & Batt. 130; 8 Leigh, 719; 5 Ired. R. 364; 8 Port.
447; 2 Metc. 21; 3 Greenl. 177.
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.
- 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 Penns. R. 235.
4.
- 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 ma- liciously 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.
- 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.
- 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.
- 5. The malicious prosecution or action must be ended, and the
plain-tiff 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.
- 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.
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