him to jail, but for the whole period of his imprisonment. And in Mandeville v. Guernsey, 51 Barb. (N. Y.) 99, the Court says: "The arrest being wrongful, the defendant is liable for all the injurious consequences to the plaintiff which resulted directly from the wrongful act. A person who has arrested a party without process, or on void process, wrongfully, cannot detain him on valid process, until he has restored such party to the condition he was in at time of his arrest, at least to his liberty. The law will not permit him to perpetrate a wrong for the purpose of executing process, nor to use process for the purpose of continuing an imprisonment, commenced without authority, and by his wrongful act." On the other hand, in Locke v. Ashton, 18 L. J. Q. B. 76, the plaintiff was a carman in defendant's employ, and had been sent to bring 20 sacks of oats from the premises of certain grain merchants to those of the defendant. Plaintiff brought back with him only 19 sacks, whereupon the defendant gave him into custody on the charge of stealing the missing sack. The magistrate, before whom the complaint was preferred, remanded the plaintiff, but subsequently discharged him, upon it appearing that the missing sack was left with the city toll collector as security for tolls. The judge instructed the jury that the plaintiff was entitled to damages for the whole time that he was kept in custody. The case was heard on appeal before Chief Justice Denman and Judges Coleridge, W. Wightman and Earl. It was there argued that defendant was liable for all the consequences of his wrongful act within the doctrine of Scott v. Shepard, 2 W. B. 892. The Court held as follows: "The remand, in respect of which the jury gave damages, was the act of the magistrate, not the act of the defendant; and therefore ought not to have been taken into consideration by the jury in assessing the damages." In Langford v. Boston & Albany Railroad Company, 144 Mass. 431, 11 N. E. 697, where the agent of the defendant made a complaint to a trial justice against the plaintiff for unlawfully refusing to pay his fare, and the magistrate issued his return in due form for plaintiff's arrest, it was held that defendant was not liable in trespass for the acts done by the officer in serving the return, even though the magistrate had no jurisdiction to issue the return. Barker v. Stetson, 7 Gray (Mass.) 53, 66 Am. Dec. 457, is to the same effect. The au thorities are conclusive that, when a person does no more than to prefer a complaint to a magistrate, he is not liable in trespass for the acts done under the warrant which the magistrate thereupon issues, even though the magistrate has no jurisdiction. . This Court is not agreed as to the general rule of liability for damages applicable in such cases where the evidence fails to show any action on the part of a defendant other than such as is necessary to place the person arrested under the control of the magistrate. In the case at bar, however, it appears that the mate pointed the plaintiff out and told the officer to arrest him, saying, "Catch that fellow, take him"; that he charged him with being one of the men who had caused the disturbance; that he made the complaint before the magistrate on which plaintiff was committed, and in said complaint charged plaintiff with using threatening, abusive, and insulting behavior with intent to provoke breach of the peace. The evidence shows that these accusations were not justified by the facts, and that plaintiff merely defended himself against an unprovoked assault. The mate admitted that the first thing he saw was that somebody struck plaintiff in the face, and that he told plaintiff that he, plaintiff, had been abused, and that a great wrong had been done him. In these circumstances we think the conduct of the mate after the arrest may be justly regarded as a continuation of the original wrong for which defendant was liable, and that the subsequent proceedings were the direct result of the unjustified and pernicious activity and urgency of the mate, and only indirectly and remotely attributable to the action of the committing magistrate. We think, furthermore, that in either view of the case the plaintiff was entitled to a verdict, and we are not prepared to say that the damages imposed would have been excessive if they had been assessed for the indignity and suffering endured prior to the proceedings before the magistrate. The judgment is affirmed, with costs. SUB-TOPIC B. LEGAL PROCESS RESORTED TO ... 970. Sir FREDERICK POLLOCK and FREDERIC WILLIAM MAITLAND. A History of English Law before the Time of Edward I. (1895. vol. II, p. 537.) . . . Wrongful prosecution may be regarded as an aggravated form of defamation. It is a wrong of which ancient law speaks fiercely. In England before the Conquest one might lose one's tongue, or have to redeem it with one's full "wer," if one brought a false and scandalous accusation. Probably the law only wanted to punish the accuser who made a charge which he knew to be false; but it had little power of distinguishing the pardonable mistake from the wicked lie, and there was a strong feeling that men should not make charges that they could not prove. Roman influence would not tend to weaken this feeling. The law of the later Empire required that any one bringing a criminal charge should bind himself to suffer in case of failure the penalty that he had endeavored to call down upon his adversary. So soon as our judicial records begin, we see that an amercement is inflicted upon every unsuccessful plaintiff "pro falso clamore suo," whatever may have been the cause of his failure. In the "appeal"1 of felony the appellor, vanquished in battle, still pays the old "wite" of sixty shillings to the king. For a time, however, "appeals" were being encouraged, and we may see an appellor excused from punishment "quia pugnavit pro Rege." Under Edward I. the tide turned, and a statute decreed that if the appellee were acquitted his accuser should lie in prison for a year and pay damages by way of recompense for the imprisonment and infamy that he had brought upon the innocent. This statute is a typical piece of medieval legislation. It desires to punish malicious "appeals"; it actually punishes every "appeal" that ends in an 1 [Here used in the ancient sense of a mixed civil and criminal prosecution. - ED.] acquittal. Even before this statute an acquitted appellee may have had an action against his accuser. A few years later it was necessary to invent the writ of conspiracy for use against those who were abusing the new process of indictment. Section 1. Process obtained without Just Cause 971. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1763-5. Book III, p. 126.) . . . A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this, however, the law has given a very adequate remedy in damages, either by an action of conspiracy, which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case for a false and malicious prosecution. It is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. However, any probable cause for preferring it is sufficient to justify the defendant. 972. JOHNSTONE v. SUTTON. (1786. 1 T. R. 510, 544.) Lord MANSFIELD, C. J. . . . There is no similitude or analogy between an action of trespass or false imprisonment, and this kind of action [of malicious prosecution]. An action of trespass is for the defendant's having done that which, upon the stating of it, is manifestly illegal. This kind of action is for a prosecution, which, upon the stating of it, is manifestly legal. The essential ground of this action is, that a legal prosecution was carried on without a probable cause. We say this is emphatically the essential ground; because every other allegation may be implied from this: but this must be substantively and expressly proved, and cannot be implied. From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied. From the most express malice, the want of probable cause cannot be implied. A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action. 973. Austin v. DoWLING. (1870. L. R. 5 C. P. 534, 539.) WILLES, J. . . . So long, of course, as the plaintiff remained in the custody of a ministerial officer of the law, whose duty it was to detain him, until he could be brought before a judicial officer, [and] until he was so brought before the judicial officer, there was no malicious prosecution. The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment. There is, therefore, at once a line drawn between the end of the imprisonment by the ministerial officer and the commencement of the proceedings before the judicial officer. THIS was an action upon the case for a malicious prosecution, wherein the plaintiff declares, that the defendant arrested him in the sum of 100l. on purpose to hold him to special bail, where not one penny was due. Defendant demurs specially, and shows, for cause of demurrer, that the plaintiff had not in his declaration shown what became of this malicious prosecution. It was argued for the defendant . . . that no action will lie for a malicious indictment, without showing what became of that indictment. ... The reason of all which cases is founded in this, that otherwise there might be a clashing of jurisdictions, and contrary verdicts. . . . It was argued for the plaintiff, that this action was founded upon malice, and brought for holding to excessive bail, which was collateral to the prosecution. . Chief Justice PARKER delivered the resolution of the Court to be, that the declaration was naught, for want of showing what became of the former action; whereas it ought to have been shown that that was false and hopeless. As the declaration now stands, the first suit may either, 1st, Be determined; or 2dly, It may be deserted; or, 3dly, It may be still regularly going on; non constat which of these three is the matter of fact. If the 1st, non constat whether determined for or against the plaintiff; if for the plaintiff, then there is no colour for this action. If the 2d were the matter of fact, desertion is an indication of its being false and hopeless, and then indeed this action would be maintainable. . . . If the 3d be the matter of fact, then the action is brought too soon. 2 Rich. III, 9, held by all the judges, that the first action must be first determined, because non intelligitur (says the book), quousque terminetur, that the action was unjust. Dyer 285. Hobart 267. No man can say, of an action still depending, that it is false or malicious. The same rule holds in criminal cases. Yelverton 116. Siderfin 15. 1 Saunders 228. 2 Keeble 476. In an action for a malicious indictment, the plaintiff must in his declaration show what became of the indictment. Judgment given pro def. . 975. CARDIVAL v. SMITH SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1872 109 Mass. 158 TORT. Writ dated November 26, 1869. The declaration alleged that the defendant maliciously and without probable cause procured Yott Wher the arrest of the plaintiff and his holding to bail on a writ returnable to the Superior Court at September term, 1869; that the plaintiff "duly appeared at said court to which said writ was returnable; but that the defendant did not appear, well knowing that he had no probable cause to maintain the action against the plaintiff, nor was said writ ever returned into the office of the clerk of said court." The defendant demurred on the ground that it appeared "that the suit alleged to be malicious was not determined in favor of the defendant therein by a judgment of court." The Superior Court sustained the demurrer, and the plaintiff appealed. G. Stevens, for the defendant. C. Cowley, for the plaintiff. GRAY, J. The general rules of law governing actions for malicious arrest and prosecution have long been well settled. In the words of Lord CAMDEN, "this is an action for bringing a suit at law; and courts will be cautious how they discourage men from suing; when a party has been maliciously sued and held to bail, malice, and that it was without any probable cause, must be alleged and proved." Goslin v. Wilcock, 2 Wils. 302, 307. "The new action must not be brought before the first be determined; because till then it cannot appear that the first was unjust." Buller, Nisi Prius, 12. When the prosecution alleged to have been malicious is by complaint in behalf of the government for a crime, and in pursuance thereof an indictment has been found and presented to a court having jurisdiction to try it, an acquittal by a jury must be shown, and a nolle prosequi entered by the attorney for the government is not sufficient; for the finding of the grand jury is some evidence of probable cause, and another indictment may still be found on the same complaint. Buller, Nisi Prius, 14. Bacon v. Towne, 4 Cush. 217. Parker v. Farley, 10 Cush. 279. Bacon v. Waters, 2 Allen, 400. But if it is commenced by complaint to a magistrate who has jurisdiction only to bind over or discharge, his record, stating that the complainant withdrew his prosecution and it was thereupon ordered that the accused be discharged, is equivalent to an acquittal. Sayles v. Briggs, 4 Met. 421, 426. If the accused, after being arrested, is discharged by the grand jury's finding no indictment, that shows a legal end to the prosecution. Jones v. Givin, Gilb. 185, 220. BULLER, J., in Morgan v. Hughes, 2 T. R. 225, 232. Freeman v. Arkell, 2 B. & C. 494; s. c. 3 D. & R. 669. Michell v. Williams, 11 M. & W. 205. Bacon v. Waters, 2 Allen, 400. And if the prosecutor, after procuring the arrest, fails to enter any complaint, this with the attending circumstances is sufficient to be submitted to the jury as evidence of want of probable cause. Venafra v. Johnson, 10 Bing. 301; s. c. 3 Moore & Scott, 847, and 6 C. & P. 50. McDonald v. Rooke, 2 Bing. N. C. 217; s. c. 2 Scott, 359. When the suit complained of is a civil action, wholly under the control |