The sole question raised in argument on this appeal is whether, in the absence of an arrest of his person or a seizure of his property, the successful defendant may have an action against the plaintiff who has proceeded against him to his damage in a civil action maliciously and without probable cause. So far as we are advised, this question has never arisen for decision in this court. It has, however, been much debated and differently decided in other jurisdictions. We think it enough to briefly indicate the reason and authority for our conclusion that the question at issue should be answered in the affirmative.
The legislative history of this question — and it is an ancient one — is stated in Lehigh Valley R. R. Co. v. McFarland, 44 N.J. Law, 674. At the ancient common law an action for the malicious prosecution without probable cause of a mere civil action would lie. Kolka v. Jones, 6 N.D. 461,71 N.W. 558, 60 Am. St. Rep. 615, where the authorities are cited. It has been supposed in England and in some of our states that the statute of Marlbridge, 52 Hen. III, c. 6, anno 1267, denied the right of action in such cases, and so established for the courts of this country the common law to the effect that the award of costs to a successful defendant is in lieu of all damages; but, as shown by Corliss, C. J., in Kolka v. Jones, supra, the statute referred to gave to the successful defendant in a civil action maliciously prosecuted not merely his costs, but also his damages, thus conferring upon him a summary remedy in such case, instead of compelling him to seek redress in an independent action. "The effect of the statute," as stated in 19 Am. Eng. Ency. 652, "was therefore to supersede the subsequent action for the malicious prosecution of a civil suit, unless there was a wrongful arrest of the person, or seizure of property, or other special injury which would not necessarily result in all suits prosecuted to recover for like causes." There is a wide and obvious difference between such legislation and the statutory enactments of this country, and the learned Chief Justice has observed in the case supra "that our meager bill of costs was intended to recompense the victim of the malicious prosecution of a civil suit is, to our minds, unthinkable."
It is to be conceded that formerly the numerical preponderance of authority in this country lay on the side of the negative of the question under consideration. But, it seems, the majority of the courts have come around to the other view. Many of the decisions pro and con are cited in Kolka v. Jones, supra. Many cases are also cited in the note to McCormick Harvesting Co. v. Willan, 93 Am. St. Rep. 449, 467, 468, where the editor, Judge Freeman, says:
"Perhaps it may be safe to state that the weight of authority sustains the rule, that for *Page 349 a malicious prosecution of a civil action without probable cause, to the injury of the defendant therein, the plaintiff is answerable to him, though the latter was not arrested nor his property or rights therein interfered with in any manner."
The learned editor announces his belief that this is the better rule and the one which ought to be maintained in this country. Still another list of cases supporting the action is found in the note to Luby v. Bennett, 87 Am. St. Rep. 897.
Several arguments are advanced against the right of action in such cases: (1) The successful defendant is fully compensated by the award of costs. As to this point we concur in the statement of Corliss, C. J., quoted above. It seems quite plain that a judgment for costs under our statutes cannot compensate for the necessary and reasonable expenses of the defense to which the defendant may be put, nor make good an injury to reputation suffered by reason of the plaintiff's malicious allegations. (2) The courts should be open to litigants who ought not to be deterred from the assertion of their honest claims by the fear of retaliatory suits for damages in the event of a failure. But we lay down a rule for cases in which civil actions have been prosecuted maliciously and without probable cause. No policy of the law encourages suits of that character. (3) On the other hand, it is said that under the rule we have approved suit may follow suit in interminable succession, and there ought to be an end of litigation. The principle of this argument is refuted by the law's declaration that for every wrong there is a remedy, and especially is this so where the injury is malicious. As for practical results, the testimonies of the judges in other jurisdictions concur to the effect that this rule has brought to the courts no crowd of rashly importunate litigants.
A number of the courts and some very respectable text-writers hold otherwise. But our judgment, upon consideration of the authorities, may be expressed in the language of the text on the subject of malicious prosecution, 26 Cyc. 15, 16, written by Prof. Jaggard, as follows:
"The general American opinion * * * is that costs in that [this] country, unlike the English costs, awarded per falsum clamorem, are not designed to and in fact do not amount to a remedy of compensation for the wrong so committed by the party who first put the law vexatiously in motion and who can be charged in malicious prosecution only after plaintiff in that action has faced the sufficient deterrent of the burden of proof as to the many elements of that tort. The prevailing rule is accordingly that the action may lie, although the original proceeding was begun by a civil summons only and the party seeking recovery was not arrested and his property was not seized, and he suffered no peculiar injury."
And the text-writer adds, with what logic or effect we need not now require, "but only when the want of probable cause is very palpable."
The complaint alleges special damages — and perhaps, in view of our statute awarding costs in every case, that was necessary — and the judgment of this court is that the demurrer should have been overruled.
The court is further of the opinion that the question discussed has been sufficiently raised by the assignments of error.
Reversed and remanded.
SOMERVILLE, GARDNER, and THOMAS, JJ., concur. ANDERSON, C. J., and McCLELLAN and MAYFIELD, JJ., dissent.