As it was punishable to
combine for such a purpose, it was concluded, with some
hesitation, that, when a single individual wickedly attempted the
same thing, he should be liable on similar grounds. /1/ I must
fully admit that there is weighty authority to the effect that
malice in its ordinary sense is to this day a distinct fact to be
proved and to be found by the jury.
But this view cannot be accepted without hesitation. It is
admitted that, on the one side, the existence of probable cause,
believed in, is a justification notwithstanding malice; /2/ that,
on the other, "it is not enough to show [142] that the case
appeared sufficient to this particular party, but it must be
sufficient to induce a sober, sensible and discreet person to act
upon it, or it must fail as a justification for the proceeding
upon general grounds." /1/ On the one side, malice alone will not
make a man liable for instituting a groundless prosecution; on
the other, his justification will depend, not on his opinion of
the facts, but on that of the court. When his actual moral
condition is disregarded to this extent, it is a little hard to
believe that the existence of an improper motive should be
material. Yet that is what malice must mean in this case, if it
means anything.
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