Anderson v. Coleman

By the Court : Irrespective of the other points relied upon by the appellant, and which it is not necessary to notice now, we are satisfied that there was error in the refusal of the Court below to give the second instruction asked by the defendant and refused by the Court. That instruction, as asked, was as follows :■ “ Second —If the defendant instituted the action against W. W. Anderson and E. Dubois to obtain an injunction in good faith, without malice, and with no other motive than to protect his own property from threatened injury, the plaintiffs cannot, in this action, recover against him.”

In order to sustain an action for malicious prosecution, malice and want of probable cause must concur. If either of these be [190]wanting the action must fail. This is the settled rule, and was conceded by the counsel for the respondents at the argument. Nor was the error in this respect cured by the other instructions given at the trial.

Judgment and order denying a new trial reversed, and cause remanded.