/2/ For the evil effects of a successful
indictment are of course intended by one who procures all other
to be indicted. I cannot but think that a jury would be told that
knowledge or belief that the charge was false at the time of
making it was conclusive evidence of malice. And if so, on
grounds which need not be repeated, malice is not the important
thing, but the facts known to the defendant.
Nevertheless, as it is obviously treading on delicate ground to
make it actionable to set the regular processes of the law in
motion, it is, of course, entirely possible to say that the
action shall be limited to those cases where the charge was
preferred from improper motives, at least if the defendant
thought that there was probable cause. Such a limitation would
stand almost alone in the law of civil liability. But the nature
of the wrong is peculiar, and, moreover, it is quite consistent
with the theory of liability here advanced that it should be
confined in any given instance to actual wrong-doing in a moral
sense.
The only other cause of action in which the moral condition [143]
of the defendant's consciousness might seem to be important is
conspiracy. The old action going by that name was much like
malicious prosecution, and no doubt was originally confined to
cases where several persons had conspired to indict another from
malevolent motives.
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