The actions of false imprisonment and malicious prosecution have often been confused together,91 but 89 Sugg vs. Pool, 2 Stew. & P., 196; Landrum vs. Wells, 7 Tex. Civ. App., 625.

90 Grace vs. Dempsey, 75 Wis., 313, where it was held that a letter written to the defendant charging him with crime was no justification of an unlawful imprisonment committed under the provocation of such letter.

91 The following cases illustrative of this confusion are culled in American & Eng. Enc. of Law, Vol. 12, p. 731: "In Brown's Law Dictionary (2nd ed), title False Imprisonment, it is stated with reference thereto; 'For the success of the action it is necessary to prove both malice on the part of the defendant and the absence of all reasonable or probable cause and, of course, that the accused was acquitted.' It is evident here that false imprisonment has been confused with malicious prosecution, for, as is shown in other parts of this article, none of the above - stated essentials is necessary for the maintenance of an action for false imprisonment."

Another instance of confusion is presented by the case of Perry vs. Sutley (Supreme Ct.), 18 N. Y. Supp., 633, in which the court begins its opinion by saying: 'The action was for false imprisonment." Then further: "The rules of law applicable to actions of this character are very simple and familiar. There must be want of probable cause, and malice, but if the former is established the latter may be inferred therefrom." Thus it appears that either the action was not false imprisonment, but more in the nature of an action for damages for malicious prosecution, or the court misstates the rules of law applicable thereto. In fact, it further appears that the arrest of the plaintiff was under legal process, valid and regular, and the point upon which the case was turned was whether or not there was probable cause for the prosecution, the conclusion being that under the circumstances it was a question of fact for the jury.

And also in the case of Brown vs. Chadsey, 39 Barb. (N. Y.), 262, the court said with reference to an action for false imprisonment; "Malice in the defendant will be inferred, so far at least as to sustain the action."

Likewise in another case the action, though stated in the opinion of the court to be one for false imprisonment and malicious prosecution, seems to have been regarded only in its latter aspect and a verdict was directed for the defendent, althe two actions nevertheless present striking differences. These differences are shown by the following decisions: In the case of Hobbs vs. Ray92 it was said with reference to the distinction between false imprisonment and malicious prosecution: ' These actions are quite distinct from each other. An action of trespass and false imprisonment lies for an arrest or some other similar act for an arrest or some other similar act of the defendant, which, as is said, 'upon the stating of it is manifestly illegal;' while malicious prosecution, on the contrary, lies for a prosecution which upon the stating of it is manifestly legal." In the case of Mc-Connel vs. Kennedy93 in distinguishing between an action for false imprisonment and one for malicious prosecution, the court said: "It is quite true that one arrested and restrained of his liberty even under lawful process, may have a cause of action if it is alleged and shown that the prosecution was malicious and was without probable cause and has terminated; but that is a different cause of action and depends upon different allegations and proofs, and the action for malicious prosecution must not be confounded with an action for false imprisonment." though from the facts stated it would seem that an action for false imprisonment might have been sustained. Casdro vs. De Riarte, 16 Fed., 93,

Again in the case of Warren vs. Dennett, 17 Misc. Rep., N.Y. (City Ct.), 86, the court, in distinguishing between actions for false imprisonment and those for malicious prosecution, said: "In the one for false imprisonment the plaintiff must show that the defendant had him imprisoned or deprived of his liberty, and that the mode or process was unlawful, i. e., without due process of law. He must prove want of probable cause, and malice is presumed. The defendant may, however, disprove malice. In an action for malicious prosecution the plaintiff must prove that the process was regular, and the arrest under it lawful, or by lawful authority acting for itself, and must also prove a want of probable cause and that the same was malicious. Here malice is not presumed, as in the action for false imprisonment, but must be proven."

92 18 R. I., 84.

93 29 S. Car., 180.

In the case of Herzog vs. Graham94 the court said with reference to false imprisonment and malicious prosecution: 'The distinction is that false imprisonment is some interference with the personal liberty of the plaintiff which is absolutely unlawful and without authority. Malicious prosecution is in procuring the arrest and prosecution under lawful process on the forms of law, but from malicious motives and without probable cause." A clear and concise statement of the distinction under discussion is to be found in the case of Colter vs. Lamb 95 wherein it was observed that if the imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. If it has been extrajudicial, without legal process, it is false imprisonment.

Section 23. Elements Of False Imprisonment

The two constituent elements of false imprisonment are: (1) the detention or restraint; and (2) the unlawfulness of such detention or restraint.96