But this view cannot be accepted without hesitation.  It is admitted that, on the one side, the existence of probable cause, believed in, is a justification notwithstanding malice; 2 that, on the other, “it is not enough to show [142] that the case appeared sufficient to this particular party, but it must be sufficient to induce a sober, sensible and discreet person to act upon it, or it must fail as a justification for the proceeding upon general grounds.” 1 On the one side, malice alone will not make a man liable for instituting a groundless prosecution; on the other, his justification will depend, not on his opinion of the facts, but on that of the court.  When his actual moral condition is disregarded to this extent, it is a little hard to believe that the existence of an improper motive should be material.  Yet that is what malice must mean in this case, if it means anything. 2 For the evil effects of a successful indictment are of course intended by one who procures all other to be indicted.  I cannot but think that a jury would be told that knowledge or belief that the charge was false at the time of making it was conclusive evidence of malice.  And if so, on grounds which need not be repeated, malice is not the important thing, but the facts known to the defendant.

Nevertheless, as it is obviously treading on delicate ground to make it actionable to set the regular processes of the law in motion, it is, of course, entirely possible to say that the action shall be limited to those cases where the charge was preferred from improper motives, at least if the defendant thought that there was probable cause.  Such a limitation would stand almost alone in the law of civil liability.  But the nature of the wrong is peculiar, and, moreover, it is quite consistent with the theory of liability here advanced that it should be confined in any given instance to actual wrong-doing in a moral sense.

The only other cause of action in which the moral condition [143] of the defendant’s consciousness might seem to be important is conspiracy.  The old action going by that name was much like malicious prosecution, and no doubt was originally confined to cases where several persons had conspired to indict another from malevolent motives.  But in the modern action on the case, where conspiracy is charged, the allegation as a rule only means that two or more persons were so far co-operating in their acts that the act of any one was the act of all.  Generally speaking, the liability depends not on the co-operation or conspiring, but on the character of the acts done, supposing them all to be done by one man, or irrespective of the question whether they were done by one or several.  There may be cases, to be sure, in which the result could not be accomplished, or the offence could not ordinarily be proved, without a combination of several; as, for instance, the removal of a teacher by a school board.  The conspiracy would not affect the case