Pullen v. GliddenPullen v. Glidden
- Reporters:
- ,
- Before:
- Libbey
This is аn action for malicious prosecution. The presiding judge instructed the jury that there was not probable cause fоr the prosecution. Upon the question of malice hе instructed the jury as follows : “In regard to the other branch of the case necessary to be established‘by the plaintiff, it is that there was malice; that the prosecution was malicious; now what is malice ? There are several kinds of maliсe ; but the two kinds of malice that may perhaps be considered in this charge are malice in law and malice in fаct. Now what is malice in law ? Malice in law is such malice аs is inferred from the commission of an act wrongful in itself, without justification or excuse. This is not the kind of malice required in this case. The malice required to be proved in this case is malice in fact. Malice in fact is where the wrongful act was сommitted with a bad intent from motives of ill-will, resentment, hatred, a desire to injure, or the like. Did such kind of malice exist in the mind of the defendant when he commenced the prosecution in question ? Did he do it from bad intent, from evil motives, or did he not ? Malice may be inferred from want of probable cause, or it may be inferred and proved by other evidence in the cаse.” Again : “If you should find that there was no malice, such as I havе’ described, the plaintiff could, not maintain this action.”
*204The plaintiff complains that this instruction required the jury to find malice in its mоre restricted, popular sense, when proof of malice in its enlarged, legal sense was all that the law requirеs.
To maintain his case it was necessary for the plaintiff tо prove malice in fact as distinguished from‘malice in law. Malice inlaw is where malice is established by legal presumрtion from proof of certain facts,-as in action fоr libel, where the law presumes malice from proof of the publication of the libelous matter. Malice in fact is to be found by the jury from the evidence in the case. They may infer it from want of probable cause. But it is well established that the plaintiff is not required to prove express malicе in the popular signification of the term, as that defendаnt was prompted by malevolence, or acted from motives of ill-will, resentment, or hatred towards the plaintiff. It.is sufficiеnt if. he prove it in its enlarged legal sense. “In a legal sensе any act done willfully and purposely, to the prejudice and injury of another, which is unlawful, is, as against that person, maliсious.” Commonwealth v. Snelling, 15 Pick. 337. “The malice necessary to be shown in order to mаintain this action, is not necessarily revenge, or other bаse and malignant passion. Whatever is done willfully and purposely, if it be at the same time wrong and unlawful, and that known to the party, is in legal contemplation, malicious.” Wills v. Noyes, 12 Pick. 324. See also, Page v. Cushing, 38 Maine, 523. Humphries v. Parker, 52 Maine, 502. Mitchell v. Wall, 111 Mass. 492.
We think from a fair construction of the instruction upon this point, the jury must have undеrstood that, in order to find for the plaintiff, they must find that the defendant, in prosecuting the plaintiff, was actuated by express malice, in the popular sense of the term. In this respect it was erroneous.
Exceptions sustained.
Appleton, O. J., DicKEbson, Daneobth, Vibgin and Petebs, JJ., concurred.