some instances, escape liability on the presumption, when the wrongful act was done in the presence of her husband, that it is to be imputed to him, rather than to her; and when a tort involves some element of design or of guilty intent or purpose not imputable to an infant on account of his tender age or his want of capacity, he cannot, unless his capacity is affirmatively shown, be adjudged guilty of its commission, and if very young, the presumption of his incapacity is indisputable. The court of appeals of New York appears, in Cussin v. Delany, 38 N. Y. 178, to have proceeded on the assumption that when a husband and wife prosecute a charge of embezzlement, she may be held liable in damages, though she acted in his presence, upon proof that she acted upon her own motion, and not by his direction. If a civil action is brought in the name of a minor, without his authority or knowledge, by a prochein ami, the infant, though he subsequently assents to the suit upon being informed of it, cannot be held liable for its prosecution, for the reason that he had no power to discontinue it during his minority: Burnham v. Seaverns, 101 Mass. 360; 100 Am. Dec. 123. His prosecution of an action after coming of age would undoubtedly make him liable: Sterling v. Adums, 3 Day, 411. A criminal charge may be preferred by a minor, and if unfounded and malicious, the wrong done is not less than if it were preferred by a person of more advanced years. If the age of the minor, and his manifest capacity and discrimination, and the circumstances accompanying the making of the charge, are such as to demonstrate that his act was malicious and without probable cause, we know of no reason in the law, or elsewhere, for not obliging him to respond in damages for the injury maliciously in flicted by him.

Real Prosecutor, Evidence to Show Who was. The person sued for malicious prosecution is generally the one who made the affidavit or complaint, or preferred the charge, or otherwise set the machinery of the law in motion, and thereby brought about the arrest of the accused. The person who makes the affi lavit upon which the arrest is effected may undoubtedly be regarded as the prosecutor, and held liable as such: Weil v. Israel, 42 La. Ann. 955; Walser v. Thies, 56 Mo. 89. Nor is it essential to the character and liability of the prosecutor that he should have made the affidavit for the purpose of procuring the arrest. Thus it has been decided that he who by means of his perjured evidence leads a judge to believe that another witness has been guilty of perjury, and to hold the latter to answer and be tried therefor, is liable in damages as for a malicious prosecution: Fitzjohn v. Mackinder, 9 Com. B., N. S., 505; 7 Jur., N. S., 1283; 30 L. J. Com. P. 257; 9 Week. Rep. 477; 4 L. T., N. S., 149. But liability does not attach to one who fairly discloses to a magistrate or a prosecuting officer all the information in his possession, and leaves him to judge of the propriety of proceeding with the charge: Smith v. Austin, 49 Mich. 286; Teal v. Fissel, 28 Fed. Rep. 351. When one has set the machinery of the law in motion, so that in the regular and ordinary course of its action an arrest must be made, or will probably follow, it need not be shown that he ordered or directed the warrant or other process to issue, or participated in its execution: Walser v. Thies, 56 Mo. 89; McLeod v. McLeod, 75 Ala. 483. On the other hand, he is not answerable for acts which do not properly result from this charge, and were not intended by him, as for a wrongful and unauthorized proceeding of the officer in serv ing the warrant: Bartlett v. Hawley, 38 Minn. 308. The liability of a person for the prosecution of a criminal case need not appear from the record therein. The question is, not whether it proceeded in his name, but whether it proceeded by virtue of his authority or procurement. If he was the real, or one

of the real, prosecutors, he cannot escape liability by keeping some other person in the position of apparent prosecutor. Hence evidence outside of the record is always admissible to show who was in fact prosecutor: Knauer v. Morrow, 23 Kan. 360. For he who conducts a prosecution in the name of another is not less liable than if he conducted it in his own name: Cotterell v. Jones, 11 Com. B 713; 16 Jur. 88; 21 L. J. Com. P. 2; Clements v. Ohrly, 2 Car. & K. 868. If the defendant is the person, or one of the persons, who caused the prosecution, he is liable, whatever may be the means he employed. He may have incited some other person to present and verify the complaint, or have procured the action of some prosecuting officer, or have acted by his servant or agent. In employing either of these supposed means of action, he is equally culpable and equally liable: Stansbury v. Fogle, 37 Md. 369; Kline v. Shuler, 8 Ired. 484; 49 Am. Dec. 402; Wells v. Parsons, 3 Harr. (Del.) 505; Grant v. Deuel, 3 Rob. (La.) 17; 38 Am. Dec. 228.

A Principal Acting by or through his Agent may be answerable for a malicious prosecution. If he directs the agent in what the latter does, there can be no question that his liability must be the same as if he had acted without the aid or intervention of an agent. But where he did not direct the agent, and the latter acted without his knowledge, then the questions most likely to arise are: 1. Was the act of the agent within the limits of his powers? and 2. If so, can the principal be subjected to exemplary damages, where, from his ignorance of what was done in his name, it is not possible to impute to him actual malice, desire to injure the accused, or reckless and wanton disregard of the latter's rights or feelings? With respect to the first question, it is clear that the agent must have been acting in the business of his principal and within the power delegated to him, either expressly or by implication. Hence where the ticket-seller of a railway corporation, acting at the suggestion of a police-officer, and with a view of aiding in the apprehension of persons engaged in passing counterfeit money, sold tickets and received payment in a bank bill which the agent believed to be counterfeit and worthless, and then caused the arrest of the ticket-buyer while he was yet in the station waiting for his train, it was held, by a divided court, that in what he did the ticket-seller was not transacting the business committed to him, and his principal was not answerable: Mulligan v. New York etc. R. R. Co., 129 N. Y. 506; 27 Am. St. Rep. A principal is not, in an action for a malicious prosecution, necessarily chargeable with whatever knowledge his agents may have had, "Actual malice implies a wrongful purpose or intent in the mind of the person whose conduct is in question. It is not to be conclusively presumed or legally imputed to him merely because of the mental condition or the knowledge of another person, however related to him": Reisan ▼. Mott, 42 Minn. 49; 18 Am. St. Rep. 489. To render one liable for a criminal prosecution, where he acts by his agent, it is not necessary that he know of or contemplate the action taken by the agent, if it was within the power delegated to him, or though not within that power, was ratified after being done: Kinsey v. Wallace, 36 Cal. 462; Forbes v. Hagman, 75 Va. 168; in each of which events both the principal and the agent are liable, and may be joined as defendants in the same action: Hussey v. Norfolk etc. R. R. Co., 98 N. C. 34; 2 Am. St. Rep. 312; unless the agent, in what he did, either had probable cause or acted without malice. Therefore, an attorney at law is liable as well as his client when he aided in a prosecution which he knew to be unfounded and malicious: Staley v. Turner, 21 Mo. App. 244; Warfield v. Campbell, 35 Ala. 349; Burnap v. Marsh, 13 Ill. 538. On the other hand, an attorney is not liable who does not know that the action is groundless, even

though he is aware that his client is actuated by malice. He may act upon the statement of facts made to him by his client, and is not under a duty to institute an inquiry for the purpose of verifying his statement before giving advice thereon. Therefore, an instruction to a jury that an attorney is liable if he, "by the exercise of reasonable diligence, might have known that there were no facts sufficient to constitute probable cause " is erroneous: Peck v. Chouteau, 91 Mo. 138; 60 Am. Rep. 236; Bicknell v. Dorion, 16 Pick. 478. TERMINATION OF PROSECUTION. The prosecution on which the action is based must have terminated without resulting in the conviction of the plain. tiff. It is sometimes said that it must have terminated in his acquittal, but this is not true. A trial on the merits or otherwise is not essential. It is sufficient that the prosecution has ended so that it cannot be reinstated nor further maintained without commencing a new proceeding, but it must have terminated in some of the several modes in which it is possible for a criminal proceeding to reach a stage beyond which the accused cannot be further prosecuted therein: Casebeer v. Drahoble, 13 Neb. 465; Mc Williams ▼. Hoban, 42 Md. 56; Blalock v. Randall, 76 Ill. 224; Gillespie v. Hudson, 11 Kan. 163; Schippel v. Norton, 38 Kan. 567. The propriety of this rule is obvious, for if the civil action could be maintained before the termination of the criminal prosecution, it might happen that, after the defendant had been called upon to respond in damages as a malicious prosecutor acting without probable cause, the good faith of his prosecution would be vindicated by a verdict of the jury convicting the accused. In Texas, as we have already shown, the malicious prosecution of criminal cases for certain purposes has been made criminal. As the Penal Code of the state did not expressly require the termination of the malicious prosecution before the prosecution of the prosecu tor for instituting it, an information against the defendant for instituting a malicious criminal prosecution need not aver that it has terminated: Dempsey v. State, 27 Tex. App. 269; 11 Am. St. Rep. 193. We shall now refer to the different means, other than by a trial on the merits, by which a criminal prosecution may so terminate as to support a civil action.

Discharge by Committing Magistrate. — The criminal practice in most of the states requires the accused, if the offense charged is of a serious nature, to be brought before a magistrate for a preliminary examination for the purpose of determining whether the evidence against him is such as to warrant his being beld to answer before the grand jury, or before some court having jurisdic tion to try him after the information shall have been filed by the proper prosecuting officer. If the examining magistrate finds that there is not suthicient cause to hold the accused to answer, and therefore discharges him, that prosecution is thereby ended; and the consideration that other prosecutions may be brought against the same person on the same charge, and that the grand jury, on its presentation to them, may find an indictment thereon, cannot prevent the action of the magistrate from having its effect as a termination of the prosecution before him, sufficient to support the civil action: Moyle v. Drake, 141 Mass. 238; Costello v. Knight, 4 Mackey, 65; Fay v. O'Neill, 36 N. Y. 11; Jones v. Finch, 84 Va. 204.

Failure of Grand Jury to Find Indictment. — If the grand jury considers the charge against the accused, whether after he has been held to answer or otherwise, and refuses to indict, this is also generally regarded as a final termination of a prosecution authorizing an action to be maintained thereon, if it was malicious and without probable cause: Morgan v. Hughes, 2 Term Rep. 225; Potter v. Casterline, 41 N. J. L. 22; Graves v. Dawson, 130 Mass. 78; 39 Am. Rep. 429; Apgar v. Woolston, 43 N. J. L. 57; Stuncliff v. Palmeter,

18 Ind. 321; Hower v. Lewton, 18 Fla. 328; Mitchell v. Williams, 11 Mees. & W. 205; 12 L. J. Ex. 193; though in some of the states the action of the grand jury must be supplemented by an order of court discharging the ac cused from custody or from the duty of further appearing to answer the charge against him: Thomas v. De Graffenreid, 2 Nott & McC. 143; O'Driscoll v. McBurney, 2 Nott & McC. 54; Knott v. Sargent, 125 Mass. 95. Whether an order of court is necessary or not depends upon the practice in the particular state in which the question arises. It is not the mere failure of the grand jury to indict at any particular time which terminates the prosecution; for their non-action, instead of proceeding from their judgment that no cause for prosecution exists, may be the result of their not being able to secure the attendance of the requisite witnesses, and their consequent postponement of the investigation to some later day, in which event it is clear that the prose. cution is not yet at an end: Knott v. Sargent, 125 Mass. 95; and whenever, by the practice in the state, the court, notwithstanding no indictment has been made, retains the right to refer the charge to another grand jury, it is proba ble that a formal order discharging the accused is a condition precedent to the maintenance of an action for his malicious prosecution.

Entry of Nolle Prosequi. There has been a disinclination to admit that the termination of a prosecution by the entry of nolle prosequi will support an action for malicious prosecution, and some cases have affirmed in general terms that it cannot be so supported: Garing v. Fraser, 76 Me. 37; Parker v. Farley, 10 Cush. 279; Perker v. Hemtington, 2 Gray, 128; Brown v. Lakeman, 12 Cush. 482. But we think they must all, as to this extreme view, be regarded as dicta. If some action or proceeding on the part of the court, or otherwise, is required to make an entry of nolle prosequi operative as a final termination of a prosecution, then, of course, such action or proceeding must supplement such entry; but when it is manifest that the prosecution is at an end, and cannot be revived, it is not material how it came to its end, and the right of the party injured by it to seek redress is complete: Kennedy v. Hol laday, 25 Mo. App. 503; Lowe v. Wartman, 47 N. J. L. 413; Brown v. Randall, 36 Conn. 56; 4 Am. Rep. 35; Yocum v. Polly, 1 B. Mon. 358; 36 Am. Dec. 583; Hatch v. Cohen, 84 N. C. 602; 37 Am. Rep. 630; Briggs v. Burion, 44 Vt. 124; Graves v. Dawson, 130 Mass. 78; 39 Am. Rep. 429; 133 Mass. 419; Woodworth v. Mills, 61 Wis. 44; 50 Am. Rep. 135; Richter v. Koster, 45 Ind. 440. Perhaps if the accused procures or assents to the entry of a nolle prosequi, he thereby waives his right to redress by civil action against his prosecutor: Langford v. Boston etc. R. R. Co., 144 Mass. 431; Parker v. Far ley, 10 Cush. 279; Coupal v. Ward, 106 Mass. 289.

Other Means of Terminating Prosecution. — The only reasonable ground for denying that the termination of a prosecution by the entry of a nolle prosequi will support an action for malicious prosecution was, that there had been no trial on the merits, and therefore no acquittal of the accused; but it is settled, as we think, beyond dissent that a trial on the merits is not essential: Schip pel v. Norton, 38 Kan. 567; Bell v. Matthews, 37 Kan. 686; Gilbert v. Emmons, 42 Ill. 143; 89 Am. Dec. 412. To hold it essential 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. Therefore, any mode by which a prosecution may be dismissed or ended, though without a trial, is sufficient. The indictment may be insufficient, and for that reason may be quashed be fore trial, or upon trial may require the jury to return a verdict of acquittal.

In either event. if the accused is discharged by the court, the prosecution is finally terminated in the sense that an action for malicious prosecution may be institute and sustained, though there is nothing to prevent the finding of another indictment, sufficient in form: Hays v. Bizzard, 30 Ind. 457; Lytton v. Baird, 95 Ind. 349; Wicks v. Fentham, 4 Term Rep. 247; Pippet v. Hearn, I Dowl. & R. 266; 5 Barn. & Adol. 634. A prisoner may be dis charged from custody after a hearing upon a writ of habeas corpus. If the legal effect of his discharge is such that the prosecution against him can be carried no further, it must necessarily be such a termination as will justify the commencement of a civil action for redress: Zebley v. Storey, 117 Pa. St. 478. If, on the other hand, the prosecution may still go on and the accused may possibly be convicted, his discharge on habeas corpus, because it does not relieve him from the duty of further defending himself, cannot support his action for malicious prosecution: Walker v. Martin, 43 Ill. 508; Merriman v. Morgan, 7 Or. 68. If, before a trial, the prosecution is terminated in any way, as by the failure of the prosecutor to appear, or by the entry of a dismissal by competent authority, the civil action may be at once begun: Leerer v. Hamill, 57 Ind. 423; Kelley v. Sage, 12 Kan. 109; Clegg v. Waterbury, 88 Ind. 21: Swensgaard v. Davis, 33 M nn. 358; Brown v. Randall, 36 Conn. 56; 4 Am. Rep. 35; Fay v. O'Neill, 36 N. Y. 11. But if the prosecutor dismisses his prosecution for the purpose of recommencing it in another court, and proceeds without delay to execute such purpose, it is said that the action for malicious prosecution cannot be maintained until the second prosecution has been disposed of: Schippel v. Norton, 38 Kan. 567. Whether the fact that the judgment has been appealed from will destroy its effect, so that the action for malicious prosecution cannot be maintained while the appeal is pending, is unsettled; some of the courts conceding this effect to an appeal: Reynolds v. De Geer, 13 Ill. App. 113; and others denying it: Marks v. Townsend, 97 N. Y. 590.

Prosecutions Resulting in Convictions. — The reason already suggested for requiring a final disposition of a criminal charge before permitting any civil ac tion to be maintained for having instituted the prosecution implied that if such prosecution should not result in favor of the person accused he could under no circumstances recover damages on the ground that it was unfounded and malicious. His conviction, in all cases where he had an opportunity to be heard in his defense, is, while it remains in force, conclusive against him that his prosecution was not without probable cause, and that he cannot recover damages from his prosecution: Severance v. Judkins, 73 Me. 376; Griffis v. Sellars, 2 Dev. & B. 492; 31 Am. Dec. 422. If, however, the proceeding of which plaintiff complains was ex parte, or one in which the court was obliged to act upon the accusation alone, as where an affidavit is filed to require a party to give sureties to keep the peace, upon the filing of which it is the duty of the magistrate to exact such sureties, the fact that they were exacted, and the accused required to furnish them, is not conclusive against him that his pros ecutor did not proceed without probable cause: Stewart v. Gromett, 29 L. J. Com. P. 170; 7 Com. B., N. S., 191; 6 Jur., N. S., 776; Hyde v. Greuch, 62 Md. 577. Commitments to an insane asylum, though not necessarily ex parte, do not rank as final adjudications of probable cause, nor preclude the person committed from sustaining an action against the person procuring his commitment: Kellogg v. Cochran, 87 Cal. 192. In civil actions the defendant may be arrested and imprisoned, maliciously and without probable cause, and Jet the plaintiff have a right to judgment on the cause of action upon which he sued. If such judgment when rendered does not necessarily