Mitchell v. Davies

Gilfillan, C. J. The evidence in this case, both as to want of probable cause and as to malice in prosecuting the suits against the plaintiff, justified a recovery. And in an action for malicious prosecution the plaintiff, in case of recovery, may recover as part of his damages the necessary cost of defending the malicious suit, including the proper fees of his attorney; but, as he cannot be held to have necessarily incurred for attorneys’ fees more than the services are worth, the value of them must be shown, before they can enter into the damages allowed. In this case, although there was no evidence of their value, the court refused an instruction asked' by defendant, that plaintiff could not [170] recover anything on account thereof, because the value was not shown. This was error, for which there must be a new trial. Order reversed. (Opinion published 53 N. W. Rep. 363.)