accurate. This potential jurisdiction lies dormant and accomplishes nothing until called into exercise in some particular case embraced within it. It then comes into actual exercise, and the power thus put forth in hearing and determining the issues between the litigating parties, may be properly designated as its active jurisdiction. Though a given matter may be within the scope of a court's authority-potential jurisdiction-it may be presented to it in an irregular or inadequate way. The variations in the irregularity are very great, extending from immaterial matters of form to the most important matters of substance. Whether or not the particular manner in which the exercise of jurisdiction is invoked will be sufficient really to call forth its exercise in any given case will depend upon the particular facts and upon the law of procedure in the particular court. If the method is so contrary to law that it does not really call forth the exercise of any judicial power, the proceeding cannot be rightfully held to be a judicial one. If, however, the method is such that it does call forth the exercise of judicial power, then the proceeding is within the jurisdiction of the court, and, however irregular it may be, is the exercise of judicial function. Another matter to be taken into account in many of these cases is the doctrine of estoppel, which, stated briefly, is this: If one person has induced or compelled another to act upon a given state of facts as true, the former cannot thereafter deny the existence of such state of facts, whatever the real condition may be. Applied to the matter in hand, this means that in case a person has prosecuted another in a given tribunal and put him to the expense, inconvenience and injury of a trial before such tribunal, he cannot thereafter deny that the tribunal which he has selected had the power to perform the act which he has induced it to perform. It seems to be settled, both upon principle and by the decided weight of authority, that a proceeding instituted in a court which has no potential jurisdiction over the matter submitted to it cannot properly be regarded as a judicial prosecution." It is held by some courts that a prosecution, based upon facts which show conclusively and affirmatively that no criminal offense has been committed, because the facts set out could under no interpretation or method of pleading constitute a crime, comes within the principle now being considered, and will not support an action for malicious prosecution." These cases must be distinguished from those in which there is an imperfect statement of facts which do constitute a violation of criminal law. Such irregularities do not materially affect the jurisdiction of the court, and proceedings in which they occur are held to be judicial.s Very great irregularities are frequently overlooked in cases raising serious questions as to jurisdiction on the doctrine of estoppel." • Collum v. Turner, 102 Ga. 534, 27 S. E. 680; Bixby v. Brundige, 68 Mass. 129; Painter v. Ives, 4 Nebr. 122; Apgar v. Woolston, 43 N. J. L. 57. Contra: Morris v. Scott, 21 Wend. 281 (N. Y.). 7 Satilla Mfg. Co. v. Cason, 98 Ga. 14, 25 S. E. 909. 8 Wagstaff v. Schippel, 27 Kan. 450. 9 Stone v. Stevens, 12 Conn. 219; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650. In the case of Sutor v. Wood, 10 Sutor made complaint before a United States Commissioner, charging Wood with unlawfully opening a letter addressed to Sutor. The Commissioner forwarded all papers to the United States Circuit Court, and the district attorney, instead of presenting the matter to the Grand Jury for indictment, filed an information. The case was tried on the information and Wood was acquitted. Wood then brought suit against Sutor for the malicious prosecution of the case. The Supreme Court of the United States in the meantime had decided that this offense could be prosecuted only by indictment. Sutor interposed as a defense to the damage suit the contention that the proceeding before the United States Circuit Court upon information was without jurisdiction and void, and consequently it could not be called a judicial proceeding. After a careful consideration of the point and a review of a number of authorities, it was held by the Supreme Court of Texas that the defense was not available to Sutor. It was declared that, according to the weight of authority, as the court had potential jurisdiction over the subject matter, the proceeding was a judicial one. It was further decided that even though the proceeding were not in fact a judicial one, Sutor was estopped from setting this up as a defense. 5. Want of probable cause. It is universally agreed that the prosecution must be instituted with 10 Wood v. Sutor, 70 Texas 343, 8 S. W. 51; Sutor v. Wood, 76 Texas 403, 13 S. W. 321. out probable cause. No degree of malice will sustain a charge of malicious prosecution if the party instituting the proceeding had probable cause to believe, and did believe, the defendant therein to be guilty. [Probable cause has been defined as "the existence of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted."11 This definition has met with very general approval. It is entirely satisfactory, with the explanation that the word "knowledge" used with reference to the facts upon which the prosecutor acted, must be taken to include not only the facts actually known to him but such also as could have been ascertained by reasonable inquiry.12 Ordinarily the existence or non-existence of probable cause is to be determined by the facts as they were known, or could reasonably have been ascertained, at the time the prosecution was instituted: if the party sought to be held acted upon those facts in good faith, he is not liable. On the other hand, if those facts were insufficient to constitute probable cause, and the defendant in the prosecution was in fact innocent and is shown so to be on the trial of the action for damages, the defendant in this action cannot relieve himself by showing other incriminating facts developed between the date on which he 11 Wheeler v. Nesbitt, 24 How. 544 (N. S.), 16 L. Ed. 765; Carl v. Ayers, 53 N. Y. 14; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650. 12 Hill v. Palm, 38 Mo. 13; Sharpe v. Johnston, 59 Mo. 557; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650. instituted prosecution and the date of the innocent defendant's acquittal.13 The effect of the judgment in the case claimed to have been maliciously instituted, upon the question of probable cause differs under different conditions. If the court in which such judgment was rendered is one having final jurisdiction and the defendant is finally convicted, or has judgment rendered against him, such judgment will be conclusive as to probable cause. If the defendant in a criminal prosecution was convicted, but this judgment was later set aside in the trial court or appealed from and reversed, and the defendant has been thereafter acquitted, the weight of authority is that the original judgment established the existence of probable cause unless it was procured by perjury, or fraud, or other improper conduct on the part of the prosecutor.1 Other cases hold such convictions to be only prima facie evidence of probable cause subject to rebuttal. It may be that the rebuttal testimony referred to would be limited by these courts to proof of perjury, fraud or misconduct in procuring the judgment.15 Absence of probable cause is absolutely essential to a malicious prosecution. No matter how much or what kind of malice may actuate the prosecutor, if he has probable and reasonable cause to believe the defendant guilty, and does so believe, he is justi 13 Galloway v. Stewart, 49 Ind. 156; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 16 Atl. 554. 14 Crescent City, etc., Co. v. Butchers' Union, etc., 120 U. S. 141, 30 L. Ed. 614, 7 Sup. Ct. Rep. 472; Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703; Price v. Stanley, 128 N. C. 38, 38 S. E. 33. 15 Nehr v. Dobbs, 47 Nebr. 863, 66 N. W. 864; Knight v. I. & G. N. Ry. Co., 61 Fed. 87, 9 C. C. A. 376. |