MACDOUGAL V. MCLEAN, et al.

the judgment is contrary to the law. (3) because excessive damages have been awarded.
The law is well settled that to support an action for malicious criminal prosecution the complainant must prove: The prosecution, and that the defendant himself was the prosecutor, or that he instigated its commencement. He must prove that the charge preferred against him was unfounded and that it was made without reasonable or probable cause, and was actuated by malice. That there was an acquittal or successful termination of the proceedings in his favor. Proof of these several facts is indispensable to support the complaint. This was the early requirement of the law in actions of this nature 'and the same rule has not been changed. (26 Cyc., page 6, Morris vs. Corson, 7 Cow. 281.)
Applying such principles to the several phases of proof presented in divers late cases we find the courts to have enlarged or rather explained many of the requirements to a successful prosecution for malicious prosecution. From a deduction of these decisions it is clear that every person that puts the criminal law in force maliciously and without any reasonable or probable cause, commits a wrongful act, and if the accused is thereby prejudiced either in his person or property, the injury and loss so sustained constitute the proper foundations of an action to recover compensation.
Malice alone is not sufficient to sustain an action. Want of reasonable and probable cause is as much an element as the evil motive. Either of these allegations may be proved by circumstances, as they usually are, and it is unquestionably true that want of probable cause is evidence of malice, although not the same thing. I t is apparent that proof must appear, however, either from direct testimony or from the circumstances in and surrounding the case, of both malice and want of reasonable and probable cause. Nothing will meet the exigencies of the case so far as respects the allegation that probable cause was wanting, except proof of the fact, and the onus probandi is upon the plaintiff.(Purcell vs. McNamara, 9 East., 361. XWilliams vs. Taylor, 6th Bing., 184. Johnson vs. Sutton, 1 Tenn., 544.) 1Applying these uniform and well -established principles to the case at bar, we have studiously read and carefully observed the manner of trial and each ruling of the court as shown from the extensive record in this case, and can perceive no wrong, much less reversible error, either from the manner of proof or the admission of evidence in the prosecution and trial of said cae.p