59 Ind. 362 | Ind. | 1877
— Suit by the appellee for a malicious prosecution, in which the appellant was charged with obstructing a highway.
The prosecution failed and was ended.
• Answer, the general denial; trial by jury; verdict for plaintiff for fifteen dollars, accompanied by answers to interrogatories, showing that a highway had been laid out thirty feet wide, and used for many years; that Zent, the appellee, built a fence along his land, whereby he reduced the width of the road to eighteen feet. In answer to an interrogatory as to the width and convenience of the road after Zent had built this fence, they said: “ Hot as wide, but as convenient for travel.”
Zent had evidently obtained a part of the legal width of the highway, the whole of which was to be open for travel. This was in law, if not in fact, an obstruction of the highway.
In Adams v. Lisher, 3 Blackf. 241, it is said: “ There is a distinction between malicious arrests in civil suits,, between individuals prosecuted for the private benefit of the plaintiff', and a malicious prosecution of an offence*
Some of the instructions given by the court go beyond this authority
This action must be supported by two facts, viz.: Malice and want of probable cause. Both must be proved* or the action fails. Judgment should have been rendered for the defendant on the special findings, upon the motion therefor.
We barely notice some other points made.
The complaint was good. Ruston v. Biddle, 43 Ind. 515.
The fact that an attorney was consulted before instituting the prosecution charged to be malicious might tend to rebut malice, and would be admissible in evidence for that purpose Burgett v. Burgett, 43 Ind. 78.
The appellee has furnished no brief.
The judgment is reversed, with costs, and the cause remanded, etc.