It is the normal rule in malicious prosecution cases that mere passive knowledge of, or acquiescence or consent in, the acts of another who causes a prosecution is not sufficient to make one liable, and that in order to impose liability there must be some affirmative action by way of advice, encouragement, pressure, etc., in the institution, or causing the institution, of the prosecution or in affirmatively encouraging its continuance after it has been instituted. It is commonly stated that an action for malicious prosecution is not favored in the law, and this is so because of the obvious public policy of having criminals brought to the bar of justice and encouraging citizens to come forward to aid in the prosecution of criminals without fear of civil suits for damages for their acts in so doing. These rules have been formulated, however, in the usual malicious prosecution cases in which the defendant being sued was not the perpetrator of the crime *258 for which the innocent person was unfairly prosecuted. The fundamental and underlying basis for liability for malicious prosecution is stated in many cases and in secondary authorities in the language of proximate causation. Typical is the rule laid down in 54 C.J.S. Malicious Prosecution § 14, at 966, as follows: The test of liability in an action for malicious prosecution is: Was defendant actively instrumental in putting the law in force? In order to sustain the action, it must affirmatively appear as a part of the case of the party demanding damages that the party sought to be charged was the proximate and efficient cause of maliciously putting the law in motion, and, if such fact appears, defendant is liable, although he did not actually make or sign the affidavit on which the warrant was issued, or although he was not the prosecutor of record. https://courtlistener/njsuperctappdiv/cVwK/seidel-v-greenberg/
Posted on: Tue, 07 Oct 2014 03:23:09 +0000
Trending Topics
Recently Viewed Topics
© 2015