18 Cal. 83 | Cal. | 1861
Field, C. J. and Cope, J. concurring.
This was a suit for a malicious prosecution. Several defendants are charged, the complaint averring that the defendants, contriving and maliciously intending to injure the plaintiff, etc., procured him to be indicted. The complaint seems to follow the precedent of Chitty in cases of a similar cause of complaint against a single defendant. A demurrer was interposed, among other grounds, because no averment is made of any joint agency on the part of the defendants in instituting this prosecution. The demurrer was overruled.
It is well settled that this action for malicious prosecution will lie' against several defendants. It is argued, however, that a conspiring must be averred. It is true, that an action lies for a conspiracy unjustly to prosecute a defendant; but we apprehend that this action is somewhat different, in form at least, from an action on the case for a malicious prosecution. The gist of this action is the malicious prosecution; that of the other is the conspiracy—the combining of two or more to do an unlawful and injurious act. In the first case, we apprehend the cause of action is complete before an acquittal; in the other, the acquittal or termination of the prosecution is necessary to enable the plaintiff to maintain the suit. But, however this may be, we think that it would be holding the rule to unnecessary strictness to hold that the defendants are not sufficiently and clearly charged with a joint act, when but one general offense is charged, and this averred to be committed by all with the same unlawful motive, and that they all contrived to effect it.
2. Nor is it maintainable that the facts whereby this unlawful prosecution was effected or carried on were not more particularly set out. It is not necessary to give the evidence of facts, but only the substantial matter which constitutes the action. The rule was fully given in Green v. Palmer (15 Cal. 411).
3. The answer having set up that the defendants had nothing to do with the prosecution, except that they were summoned as witnesses, etc., probably no replication was necessary to put in issue
4. The objection to the introduction of the proceedings of the Justice’s Court is the next error assigned. We do not understand that this proof was introduced as a substantive ground of damages, but merely as proof tending to show malice. On an inquiry into the conduct of the defendants in reference to this whole matter, and their agency and relations to the plaintiff, the evidence was, or might have been, admissible. At all events, no specific objection seems to have been interposed, and we cannot consider the objection, if it could, under any possible circumstances, have been relevant.
We see no objections to the instructions, nor to the verdict, nor the refusing to grant the nonsuit as to one of the defendants, or to submit the question to the jury as to his complicity. But it is not necessary to go into further detail, as the questions have either been decided before, or are without difficulty.
Judgment affirmed.