
    John D. Ferguson, Resp’t, v. Thomas C. Arnow et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 5, 1894.)
    
    
      %. Malicious prosecution—Proof required.
    A recovery in an action for malicious prosecution against an unsuccessful plaintiff in a civil action should not be permitted without very clear and satisfactory proof of all the fundamental facts constituting the case. The costs awarded to 'the successful defendant are the indemnity for a groundless prosecution.
    S. Same—Probable cause.
    The fact that an order of arrest in the former action was obtained against the present plaintiff has no bearing upon the question of probable cause. If want of probable cause has been established, it would bear upon the question of malice.
    Appeal from judgment of the general term of the supreme nourt in the second judicial department, entered upon an order made the second Monday of December, 1892, which affirmed a judgment in favor oj: plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    This was an action* for malicious prosecution brought by plaintiff, who had been one of several defendants in an action for trespass, in which the defendants herein were plaintiff and in which they were defeated.
    The facts, so far as material, are stated in the opinion.
    
      J. W. Bariram, for app’lts; William C. Reddy, for resp’t.
    
      
       Reversing, 50 St. Rep. 852.
    
   Earl, J.

A party who brings an action for malicious prosecution against a plaintiff who has been unsuccessful in a civil action should not be permitted to recover without very clear and satisfactory proof of all the fundamental facts constituting his case. Such actions should not be encouraged.

The costs awarded to a successful defendant in a civil action are the indemnity which the law gives him for a groundless prosecution. Public policy requires that parties may freely enter the courts to settle their grievances, and that they may do this without imminent exposure to a suit for damages in case of an adverse decision by judge or jury.

Among other things the plaintiff was bound to show in this action a want of probable cause for the action the defendants brought against him, and in this we think he utterly failed, and the trial judge upon the undisputed evidence should have nonsuited him.

There was a highway in front of the defendants’ land which had existed from some time prior to 1804. In 1888 and 1889 it was about four rods wide. The highway commissioner of the town claimed that as originally laid out it was five rods wide, and that it had been encroached upon by the. veranda of the defendants’ house and by their fences, and he gave them notice of the encroachments requiring their removal. This they refused and then he caused them to be removed, the plaintiff being one of the principal actors engaged under the commissioner in the removal. The defendants then commenced an.action of trespass against the plaintiff and others to recover damages for.the removal of the veranda and fences, and in that action they obtained an order for the arrest of the defendants therein, and they were arrested and released upon giving the proper undertaking. The action was put at issue by the answer of the defendants, and it was subsequently brought to trial at a circuit court. There evidence w'as given upon both sides, and the case was submitted to a jury who rendered a verdict for the defendants. Thereafter this "plaintiff commenced this action for malicious prosecution of that action, and he recovered a judgment which is brought under review by this appeal.

The three defendants other than Thomas C. Arnow are women, and do not appear to have had anything to do personally with the prosecution of the action against the plaintiff. The defendants had inherited the land from their father, with the veranda and fences there, and they had all known the highway for many years, and had not themselves encroached thereon and did not know of any encroachment thereon by others. The Veranda and most if not all of the fences had stood where they were when removed by the plaintiff for at least forty years. The defendants had never heard of any complaint of any encroachment until about 1888. The highway as fenced out was of the usual width, and the claimed width was very unusual. There was no record of the laying out of the highway and no recorded survey thereof. There was a record of the alteration thereof,' made in 1804, which simply recited that the highway was five rods wide. But the defendants had never even seen that. They undoubtedly believed that their piazza and fences did not encroach upon the highway, and seemed to have abundant reason for so believing. Under all these circumstances, and others not here alluded to, the defendants commenced the action of trespass, acting under the advice of their counsel. If upon such evidence as we have here an action for malicious prosecution could be maintained, then, such an action could be maintained for the unsuccessful prosecution of many of the actions which come upon appeal to this court, and a large proportion of unsuccessful actions could be followed by such an action, and litigation be thus interminably prolonged.

The fact that an order of arrest in the trespass action was obtained against the plaintiff has no bearing upon the question of probable cause. If the want of probable cause had been established that fact would have bearing upon the question of malice. For the arrest the plaintiff had his indemnity in the undertaking given upon the granting of the order of arrest.

We' regard this as a plain case, and, without a further reference to the law or the facts, our conclusion ife that the judgment should be reversed and a new trial granted, costs to abide event.

All concur.

Judgment reversed.  