Dreux v. Domec

Citations

• 18 Cal. 83

Syllabus

<p>In suit against three defendants for malicious prosecution, the complaint averred that “defendants contriving and maliciously intending to injure the plaintiff,” etc., falsely, maliciously and without probable cause, procured him to be indicted for murder: Held, that the complaint sufficiently avers a joint agency • on the part of defendants in instituting the prosecution.</p> <p>An action for malicious prosecution lies against several defendants, and the gist of the action is the malicious prosecution, and probably the cause of action is complete before acquittal.</p> <p>An action of conspiracy for unjustly prosecuting a party also lies, but probably differs in form at least from an action for malicious prosecution. The gist of an action of conspiracy is the “ conspiracy ”—the combining of two or more to do an unlawful and injurious act, and acquittal or termination of the prosecution is necessary to maintain the suit.</p> <p>In an action for malicious prosecution, only the substantial matter constituting the action, that is facts, and not the evidence of facts, need be set out.</p> <p>In this case defendants filed a general denial, and also averred that they had notho ing to do with the prosecution except as witnesses. Plaintiff filed a replication taking issue on this averment: Held, that if plaintiff chose to consider this a good defense and join issue on it, defendants cannot complain— though, probably, this matter was put imissue by the general denial and the replication was unnecessary.</p> <p>In an action for malicious prosecution, plaintiff, to show malice, may introduce the docket and proceedings before the Justice of the Peace, and show what the defendants—who had plaintiff arrested for assault with intent to kill— there did and swore to. '</p> <p>Whe'rc the objection to the introduction of testimony was in general terms that it was irrelevant, the objection will not be considered in the Supreme Court, if the testimony could, under any possible circums