Smith v. Swett , 63 Me. 344 ( 1871 )

Virgin, J.

To maintain an action for malicious prosecution not only malice on the part of the defendant must be proved, but also a want of probable cause.

The case finds that the defendant was the city marshal of Portland, and as such made the complaint upon the information derived from others among whom were the owner of the property and the city marshal of Biddeford. There being no other evidence reported upon this branch of the case, it apparently is sufficient to show there was probable cause.

The judge’s instruction on the subject of malice was imperfect, and technically incorrect; but the illustrations were quite as favorable to the plaintiff as he was entitled to. Actions of this nature against officers are not to be too much encouraged since in a large majority of cases, as in this, they are obliged to act-at once, and upon information derived from others. Cloon v. Gerry, 13 Gray, 202.

There is nothing in this case as presented to this court to indi cate that injustice was done by the verdict.

Exceptions overruled.

Appleton, C. J., Cutting, Dickerson, Barrows and Peters, J J., concurred.