30 Ga. 519 | Ga. | 1860
By the Court.
delivering the opinion.
This was an action for malicious prosecution by the plaintiff against the defendant, on the following state of facts: The plaintiff married a sister of the defendant, who was possessed of a large estate. On their marriage, they entered into a marriage contract, in which Mrs. Cook’s property was conveyed to one of her brothers, in trust, for her sole use.
To the bill so filed for distribution, the defendant therein, by counsel, demurred, and upon the hearing of that demurrer, the presiding Judge of the Superior Court overruled the demurrer, and ordered the defendant to answer. That decision was excepted to, and brought to this Court, and on the hearing this Court sustained the demurrer, holding that, under the unlimited power of disposition given the wife by
To sustain this action, the plaintiff must show affirmatively that the prosecution complained of was malicious and without probable cause, both concurring. This is the very groundwork, without which there is no cause of action. Farmer vs. Darling, 4 Burr, 1,975; Graham vs. Bell, 1 Nott. & Md., 283; 2 Gr. Ev., 449; It is not a sufficient proof of probable cause, that the plaintiff was acquitted of an indictment by-reason of the non-appearance of the defendant, who was the prosecutor. Purcell vs. Macnamard, 9 East. 361; nor that the grand jury returned the bill not found. Byrn vs Moore, 4 Taunt., 189. In that case Lord Mansfield said : “If this action could be maintained, every bill which the grand jury threw out would be the ground of an action.” The fact that the goods were not stolen, but accidently mislaid, will not alone establish the want of probable cause. Swain vs. Staf
If the facts and circumstances show that in the prosecution the party was actuated by an honest and reasonable conviction of the justice of his suit, and not merely with a view to occasion expense to his adversary, the action will not lie. Now, upon the reason and principle of these authorities, this action cannot be maintained. Who can doubt but that the defendant, in the prosecution of the suit for the recovery of
Judgment affirmed.