was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause; and lastly,
90 that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice. All those three propositions the plaintiff has to make out, and if any step is necessary to make out any one of those three propositions, the burden of making good that step rests upon the plaintiff.... in an action for malicious prosecution the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that a judge can see no reasonable or probable cause for instituting it...".
91 FALSE IMPRISONMENT Tort of False Imprisonment simply means a total restraint of the liberty of a person, for however short a time, without lawful excuse. The person imprisoned need not be aware of his or her imprisonment. Thus a person may be falsely imprisoned while asleep. Nor need the restraint have been imposed by physical force. It is sufficient if the person imprisoned is restrained by fear of the application of force or submits to legal authority. There is however no imprisonment where a person is lawfully arrested. Elements constituting the Tort of False Imprisonment include:
