put the plaintiff in the penitentiary, or that the defendant was in any way active in forwarding the suit. The papers in the original action are probative evidence. A search warrant properly identified, with indorsement and return of the officer thereon, shows the charge made by the defendant, followed by the command in the warrant to search the plaintiff's premises. Likewise the affidavit sworn to by the defendant in instituting the prosecution is competent. A certified copy of the indictment has been held admissible, the production of the original being unnecessary. If the proceedings against the plaintiff were before a justice court, it has been held that the original papers and docket are not self proving, but must be identified and authenticated, either by sworn copy or by certificate of the magistrate. It has, however, been held sufficient to prove proceedings in a foreign country by depositions and the defendant's own letters, on the ground that requiring copies would be too rigid in such a case. To prove that the defendant was instrumental in procuring the indictment against the plaintiff, a member of the grand jury may prove that the defendant carried the indictment before the grand jury, and may testify what passed between the defendant and the jury, there being no oath of secrecy on the grand jurors.7

9. Extent to Which Proceeding Must Have Been Carried.-To what extent the original proceeding must have been carried to constitute the basis of an action for malicious prosecution does not seem entirely clear. In civil cases the point has been little discussed. It has been declared to be quite evident that no action would lie for the malicious prosecution of a civil action if the plaintiff had not been arrested or his property attached, or he had not even been summoned. It has often been held, however, that the mere issuance of various forms of civil process for service or other execution is sufficient, independent of statute, to effect the commencement of a case or proceeding. As to the stage which a criminal prosecution must attain before the prosecutor becomes answerable in an action of malicious prosecution the decisions are in conflict. The

1. Bitting v. Ten Eyck, 82 Ind. 421, 42 Am. Rep. 505.

2. Chicago, etc., R. Co. v. Holliday, 30 Okla. 680, 120 Pac, 927, 39 L.R.A. (N.S.) 205.

3. Seibert v. Price, 5 Watts & S. (Pa.) 438, 40 Am. Dec. 525.

4. Yant v. McDaniel, 1 Brev. (S. C.) 173, 2 Am. Dec. 660.

5. Lunsford v. Dietrich, 86 Ala. 250, 5 So. 461, 11 A. S. R. 37; Hickman v. Griffin, 6 Mo. 37, 34 Am. Dec. 124, overruled on another point by Vansickle v. Brown, 68 Mo. 627.

majority seem to affirm that it is not until an arrest has been made that a cause of action arises, 10 and that where one has not been apprehended nor a process for his arrest issued, an action for malicious prosecution will not lie merely for the preferring of a charge before a magistrate.11 On the other hand, it is held by some authorities, and apparently with the better reason, that the person accused is injured by the mere fact that a criminal charge is maliciously and wantonly preferred against him, whereby his reputation is injuriously affected and he is exposed to disgrace and infamy; that after the charge has been made, and the person accused is thereby injured in his reputation, its dismissal without making any arrest does not absolve the prosecutor from liability. An action should lie under such circumstances, it is asserted, if for no other reason than to satisfy that principle of law which demands an adequate remedy for every legal wrong.12 In some jurisdictions the action does not lie for the mere arrest of the plaintiff, without further proceeding, 18 but none of the authorities insist that any actual imprisonment is essential to support the action.14 Proceedings under a search warrant the issuance of which has been brought about by the defendant are a sufficient basis for an action for malicious prosecution.15 But it has been held that if the warrant is never executed there is no liability, and the defendant cannot be held responsible for the unauthorized arrest of the plaintiff under such a warrant where he did not order it.16

10. Effect of Want of Jurisdiction; Void, Irregular, or Defective Process or Proceedings. As to whether an action for malicious prosecution will lie where the court in which the original proceedings were instituted was without jurisdiction, there is a conflict of authorities, some holding that under such circumstances trespass, and not case, is the proper remedy,17 while others take the view that an action

10. Mitchell v. Donanski, 28 R. I. 94, 65 Atl. 611, 125 A. S. R. 717 and note, 12 Ann. Cas. 1019 and note, 9 L.R.A. (N.S.) 171 and note.

Note: 26 A. S. R. 130.

11. Cooper v. Armour, 42 Fed. 215, 8 L.R.A. 47.

12. Halberstadt v. New York Life Ins. Co., 194 N. Y. 1, 86 N. E. 801, 16 Ann. Cas. 1102 and note, 21 L.R.A. (N.S.) 293 and note.

Notes: 26 A. S. R. 130; 9 L.R.A. (N.S.) 171; 12 Ann. Cas. 1021.

In Schock v. McChesney, 4 Yeates (Pa.) 507, 2 Am. Dec. 415, it was held that malicious prosecution would lie when the plaintiff was charged before a justice of the peace with for

gery, and in pursuance of such accusation was bound over to appear, but was discharged at a subsequent session, no indictment having been preferred against him.

13. Note: 12 Ann. Cas. 1021, 1022. 14. Note: 26 A. S. R. 130.

15. Page v. Citizens' Banking Co., 111 Ga. 73, 36 S. E. 418, 78 A. S. R. 144, 51 L.R.A. 463; Chicago, etc., R. Co. v. Holliday, 30 Okla. 680, 120 Pac. 927, 39 L.R.A.(N.S.) 205 and note; Sprangler v. Booze, 103 Va. 276, 49 S. E. 42, 1 Ann. Cas. 995 and note. Note: 10 Ann. Cas. 372.

16. Ton v. Stetson, 43 Wash. 471, 86 Pac. 668, 10 Ann. Cas. 369. 17. Vinson v. Flynn, 64 Ark. 453,

on the case for malicious prosecution will lie notwithstanding the court's want of jurisdiction, provided the proceedings were malicious and unfounded.18 The decisions are also at variance as to whether an action for malicious prosecution can be maintained by one arrested on a charge not amounting to a crime, or where the process was void; some courts denying the right in such case on the ground that no prosecution ever legally existed. 19 Other authorities, however, hold that it is no defense to an action for malicious prosecution that the complaint or affidavit made by the prosecutor failed to state any offense, or that the warrant issued thereon was void.20 As pointed out by some of the decisions upholding the right to maintain the action, the injury to the accused is the same, whether the warrant is legal or illegal, the defendant is the cause of the prosecution, and since he has done all he could in furtherance of it, the officer's error should not excuse him. If the proceedings are merely irregular or defective, it is generally conceded that the action for malicious prosecution will not be denied, as for instance where a crime was charged nominally, but the information or affidavit failed to state facts constituting the offense, or was formally insufficient.

Termination of Proceedings in Plaintiff's Favor

11. Necessity for Successful Termination.-It is a well recognized requirement that before one can maintain an action for malicious

43 S. W. 146, 46 S. W. 186, 39 L.R.A. 415; Bixby v. Brundige, 2 Gray (Mass.) 129, 61 Am. Dec. 443 and

note.

Notes: 26 A. S. R. 130; 93 A. S. R. 455; 2 L.R.A. (N.S.) 1102.

18. Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611; Calhoun v. Bell, 136 La. 149, 66 So. 761, Ann. Cas. 1916D 1165; Anteliff v. June, 81 Mich. 477, 45 N. W. 1019, 21 A. S. R. 533, 10 L.R.A. 621; Morris v. Scott, 21 Wend. (N. Y.) 281, 34 Am. Dec. 236; Ailstock v. Moore Lime Co., 104 Va. 565, 52 S. E. 213, 113 A. S. R. 1060, 7 Ann. Cas. 545, 2 L.R.A. (N.S.) 1100 and note.

Notes: 20 Am. Dec. 97; 61 Am. Dec. 444; 26 A. S. R. 130; 2 L.R.A.(N.S.) 1100 et seq.

19. Krause v. Spiegel, 94 Cal. 370, 29 Pac. 707, 28 A. S. R. 137 note, 15 L.R.A. 707; Satilla Mfg. Co. v. Cason, 98 Ga. 14, 25 S. E. 909, 58 A. S. R. 287; Maher v. Ashmead, 30 Pa. St.

344, 72 Am. Dec. 708; Kramer v. Lott, 50 Pa. St. 495, 88 Am. Dec. 556 and note; Segusky v. Williams, 89 S. C. 414, 71 S. E. 971, 36 L.R.A. (N.S.) 230 and note.

Notes: 30 A. S. R. 352; 2 L.R.A. (N.S.) 1103 et seq.

20. Shaul v. Brown, 28 Ia. 37, 4 Am. Rep. 151; Calhoun v. Bell, 136 La. 149, 66 So. 761, Ann. Cas. 1916D 1165; Finn v. Frink, 84 Me. 261, 24 Atl. 851, 30 A. S. R. 348; Williams v. Vanmeter, 8 Mo. 339, 41 Am. Dec. 644 and note; Dennis v. Ryan, 65 N. Y. 385, 22 Am. Rep. 635; McIntosh v. Wales, 21 Wyo. 397, 134 Pac. 274, Ann. Cas. 1916C 273.

Notes: 72 Am. Dec. 710; 26 A. S. R. 129; 2 L.R.A.(N.S.) 1103; 36 L.R.A. (N.S.) 230.

1. Williams v. Vanmeter, 8 Mo. 339, 41 Am. Dec. 644.

2. Forrest v. Collier, 20 Ala. 175, 56 Am. Dec. 190; Kline v. Shuler, 30 N. C. 484, 49 Am. Dec. 402; Chicago,

1

prosecution against him he must allege and prove a termination of the original proceeding in his favor, whether such proceeding was a wrongful civil action or criminal prosecution. The reason for the rule is apparent. Until a complaining party has shown that the action against him was unsuccessful, he has not shown that he has suffered any damage, and if he were permitted to sue before he had won the first suit, he might secure a recovery for the bringing of an action which the court entertaining such cause found to be well brought. The rule that a malicious prosecution must have termi

nated before a suit for damages can be based thereon has, however, been held not to apply to a just cause of action in respect to which the only grievance is that an excessive attachment of goods was made, not to secure the debt, but to injure the defendant. So where the plaintiff is suing for an abuse of legal process, it is not necessary that he show termination of the action in his favor. In actions for malicious arrest in civil cases it is sometimes held that the main action must be at an end before the plaintiff can begin, but sometimes he is not obliged to wait so long. As far as any distinction may be gathered from the cases it is this: Where the plaintiff's grievances have nothing to do with the result of the original action, he may go ahead without regard to it; otherwise not. If a judicial determination is required before process can issue, an action for malicious prosecution cannot be brought until the plaintiff at least gets the process out of the way.8

12. What Is Successful Termination Generally.-Some authorities apparently take the view that where the action complained of was a criminal prosecution, nothing less than an acquittal will be a sufficient showing of a successful termination for the plaintiff to support an action for malicious prosecution, but such expressions are believed to be mostly dicta. To require a trial of the action on the merits resulting in an acquittal would be to permit a prosecutor to do all the damage which a malicious prosecution can possibly effect, and then deny the accused the opportunity to vindicate himself by a trial, by having the proceeding quashed or dismissed, and thus escaping all liability for the wrong unlawfully inflicted. So, as a general rule, all that is required is that there be an end to the particular proceeding. That the party can again be brought into court for the same alleged offense will not matter if in order to do this it will be necessary to start afresh.10 The weight of authority in this country is apparently to the effect that the entry of a nolle prosequi without the procurement or consent of the defendant is such a termination of a proceeding as will support an action for malicious prosecution,11 though in England and in some of the states the contrary

son v. Davis, 109 Tenn. 99, 70 S. W. 65, 59 L.R.A. 501.

6. Zinn v. Rice, 154 Mass. 1, 27 N. E. 772, 12 L.R.A. 288 and note. For a full discussion of the question as to when the cause of action for wrongful attachment arises and becomes complete, see ATTACHMENNT, vol. 2, p. 902 et seq.

7. See supra, par. 2. And see ABUSE OF PROCESS, vol. 1, p. 102 et seq. 8. Note: 2 L.R.A. (N.S.) 948.

9. Cardival v. Smith, 109 Mass. 158, 12 Am. Rep. 682.

Note: 2 L.R.A. (N.S.) 929.

10. Notes: 39 Am. Rep. 432; 26 A. S. R. 135.

11. Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35; White v. International Text Book Co., 156 Ia. 210, 136 N. W. 121, 42 L.R.A.(N.S.) 346 and note; Yocum v. Polly, 1 B. Mon. (Ky.) 358, 36 Am. Dec. 583; Hatch v. Cohen, 84 N. C. 602, 37 Am. Rep. 630; Wilkin