The want of probable cause
refers, of course, only to the state of the defendant's
knowledge, not to his intent. It means the absence of probable
cause in the facts known to the defendant when he instituted the
suit. But the standard applied to the defendant's consciousness
is external to it. The question is not whether he thought the
[141] facts to constitute probable cause, but whether the court
thinks they did.
Then as to malice. The conduct of the defendant consists in
instituting proceedings on a charge which is in fact false, and
which has not prevailed. That is the root of the whole matter. If
the charge was true, or if the plaintiff has been convicted, even
though he may be able now to prove that he was wrongly convicted,
the defendant is safe, however great his malice, and however
little ground he had for his charge.
Suppose, however, that the charge is false, and does not prevail.
It may readily be admitted that malice did originally mean a
malevolent motive, an actual intent to harm the plaintiff by
making a false charge. The legal remedy here, again, started from
the moral basis, the occasion for it, no doubt, being similar to
that which gave rise to the old law of conspiracy, that a man's
enemies would sometimes seek his destruction by setting the
criminal law in motion against him.
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