case jones against gwynn in a action for a malicious prosecution it must  appear to have be malicious and without probable cause S c post S c salk S c  pale yellow a action for a malicious prosecution will lie although the  indictment be have for it equal serve the purpose of malice as if it have be  good this be a action upon the case for false and malicious indict a man for  use the trade of a badger without a licence to do it one exception to the  declaration be that the indictment be say to be falsely et wickedly and not  without commendable causan but it be resolve that in the case of a indictment  falsely et wickedly without modern report er p without commendable causan be  enough but have it be a action for a malicious prosecution those word must  have be in a cro James Mod Jones but see Farrel v nun bull n p fisher v  Bristol dougl Lewis v Farrel stram Morgan v Hugh term Rep a but another  exception be take by the court that this be a action bring on a indictment for  use c and not be licence and yet the plaintiff do not show that he be licence  then it be doubt whether this be a matter indictable and then the question  will be whether modern report a action will lie for false and malicious indict  a man for a matter not indictable nor yet contain scandal the court incline to  the opinion that it will not and that the law stand thus videlicet that a  false and malicious indictment for a matter not indictable yet contain scandal  be actionable but that if it be neither indictable nor scandalous it be not  actionable b raym side and the case of Savil v Robarts salk b and that if it  be for a matter indictable though it do not import scandal it be actionable to  this opinion of the court it be object by the counsel that in the reason of  the thing they can not see why its be for a matter indictable or not  indictable shall occasion such a difference since a person by be false and  malicious indict for a matter not indictable be put to the same expense and  trouble as if it be for a matter indictable and the maliciousness of the  prosecution be rather more the court allow this way of reason to have weight  in it c the court take time to consider of this case and in Hilary term in the  twelve year of queen whether Parker chief justice deliver the opinion of the  judge and give judgement for the plaintiff see S c post see also the case of  chamber v Robinson stram pain v porter cro James wicks v Fentham term Rep c