* * * The defendant was not only under no legal duty to take the property, but he had no legal right to do so, for the possession of a trespasser is sufficient to give him the legal right to resist the taking by one having no authority from the owner. We have discussed the question involved upon principle, there being no authorities directly in point cited by the learned counsel on either side; and it is said there are none. If so, the inference is pretty strong that the common law will not sustain an action against a railroad conductor on the facts alleged in this case. In May v. Merchants & Mechanics' Bank, Pennsylvania Supreme Court, February 25, 1885, 16 Week. N. C. 263, it was held that a maker of a judgment note containing a waiver “of all rights under the bankrupt laws of the United States," is not thereby estopped from setting up a subsequent discharge in bankruptcy as a defense to his liability. The court said: "It was virtually conceded in the court below that if it were not for the waiver the discharge in bankruptcy would be a complete defense to the proceeding. The question therefore is, did the waiver above quoted keep alive defendant's personal obligation to pay the debt, notwithstanding his discharge as a bankrupt? The learned judge, considering the waiver effective for that purpose, substantially instructed the jury that it was in the nature of a covenant on the part of defendant, not to interpose his discharge as a defense either to the note or the judgment in which it was merged; and therefore directed a verdict in favor of plaintiff for the balance claimed to be due. If this construction is unwarranted the error was radical, and the judgment must be reversed. The power delegated to the general government to establish uniform laws on the subject of bankruptcies throughout the United States' is grounded on considerations of public policy, supposed to be promotive of the greatest good of the greatest number rather than the strictly personal benefit of any individual or class; and hence we think it is contrary to that policy to permit importunate creditors to exact from embarrassed debtors, who are always more or less in their power, a waiver of the benefits intended to be secured by beneficent legislation, and that too in advance of actual insolvency, and in anticipation of the circumstances which would entitle them to the benefits, not intended for themselves alone but for the community at large. To recognize such waivers as effective would to some extent interfere with the practical operation of a general bankrupt law, such as was recently in force, and was recently in force, and perhaps inure to the benefit of some individuals at the expense of others." The like has been held in respect to waiver of exemption from execution. Moxley v. Ragan, 10 Bush, 156; S. C., 19 Am. Rep. 61; Recht v. Kelly, 82 Ill. 147; S. C., 25 Am. Rep. 301. COMMON WORDS AND PHRASES. RANCH.-A "branch" of a railroad is merely a BRANCH. section, and may be an offshoot from the main line, or a direct extension from the terminus. McAboy's Appeal, Pennsylvania Supreme Court, Nov. 3, 1884. The court said: "Is the proposed extension a branch within the meaning of the act? We think it is. We cannot agree that the definition of such a structure shall depend either upon its length or direction. If the projection of a completed road for one square is too short for a branch, then what distance will be required to allow the use of this term? The question involves in itself its own absurdity. The mistake is found in giving too narrow a definition to the word 'branch.' According to Worcester it may mean any distinct article or portion; a section; a subdivision.' But if for the word 'branch' we use 'section,' the subject under discussion is relieved of all possible obscurity. In like manner are we delivered from hesitancy in the matter of direction; that is, whether we are to regard the word 'branch' as mérely an offshoot of the main road, or whether we may apply it to a direct extension from the terminus, since the substitution of the word 'section' dissipates any thing like doubt on this score. Moreover, the case of West. Pennsylvania Railroad Co.'s Appeal, 104 Penn. St. 399, is in principle so like the case in hand that it may be regarded as having settled the question we are now considering.” TRAVELLER. When does an angler become a traveller? At the Woolwich police court, on June 30th, two members of the Woolwich Angling Society were summoned by the police for being in a public-house at prohibited hours. On Sunday morning at twenty minutes to eleven a police inspector visited the "Plume of Feathers" at Plum stead, and found the two defendants there. They represented that they had come from Dartford, which was eight miles distant, but he recognized them as residents at Woolwich, and they admitted that they resided within a mile and a half of the tavern, but claimed the right to be served with refreshments, as they had walked to Dartford and back. The landlord's daughter deposed that be fore she consented to supply refreshments to the defendants they told her that they were travellers, and that they had slept in Dartford on the previous night. The defendants assured the magistrate that they had not intentionally broken the law. They left the angling club at Woolwich at twelve o'clock the previous night, and walked to Dartford to fish. They reached Dartford between three and four in the morning, and fished for three hours without any luck, and giving up the game in disgust they set off for home again. When they reached the "Plume of Feathers," which was the first house they came to in Plumstead, they were in need of refreshment, and having been out all night, and having walked sixteen miles, they thought they were entitled to demand a glass of beer and a biscuit, even though it was Sunday morning. The inspector said he had made inquiries, and found that one of the defendants, if not the other, had been out from a very early hour in the morning, but he had no proof that they had been to Dartford. Mr. Marsham said the defendants being within three miles of their homes were not bona fide travellers within the meaning of the statute. They had therefore committed an offense, and by so doing had jeopardized the landlord of the public-house. Each must pay a fine of 10s. and costs. The language of the act is where "the place where he lodged during the previous night is at least three miles distant," etc. As the Law Times says: "Now if the defendants in this case can be said to have lodged anywhere during the previous night, their lodging appears to have been on the cold ground somewhere in the neighborhood of Dartford, eight miles from the house where they called for beer and biscuits. Techuically therefore the men would appear to be as fully entitled to an acquittal as they undoubtedly are in the light of common sense, for it is outrageous that a man who has walked three miles and a yard should be admitted as a traveller, while the privilege is refused to another who has been out all night and walked sixteen miles." In regard to another case, before the Nottingham bench, the Times says: "But what is the definition of a traveller? Under the Sunday closing acts, as we know, travelling is defined for a special purpose, and the definition has been construed so as not to include a man who has walked from a distance to his own home. Semble therefore that a man cannot, even if he has walked fifty miles, be a bona fide traveller when he reaches the town in which he resides." BUSINESS OR VOCATION.- This phrase, in a statute "to prevent and punish wrongs to a child," and prohibiting the employment of children in "business or occupation dangerous to life or limb,' was construed in Hickey v. Taafe, N. Y. Ct. App., June 2, 1885. The court said: "We think that 'business or vocation,' to be within the purview of the statute, must be an employment either vicious in itself, or one which partakes of the character of an amusement, and that it has no application to productive industries, or useful or necessary business or occupation. The defendant's employment (collar) was undoubtedly of the latter character,' and although in the abstract he was engaged in 'business,' and the machine employed in its prosecution dangerous, there is no analogy with the avocations specified in the act, and we find nothing to show that any wider sense was intended. The trial court therefore erred in submitting the case to the jury as one in which the plaintiff might recover if in their opinion the employment of the child involved such risk to her as to bring the avocation within the meaning of the term 'dangerous to life and limb.' Much stress is laid by the learned counsel for the appellant upon the remarks of Folger, C. J., in Cowley case, 83 N. Y. 464; S. C., 38 Am. Rep. 464, that the life of a child might be endangered or its health injured 'by putting him to ride on a vicious or unmanageable horse, or by putting him to tend a dangerous piece of machinery.' The remarks were pertinent to the question then in hand a conviction under the fourth section (supra), but did not involve a consideration either of an inquiry or facts similar to those now before us." HARVEST.-"The word 'harvest' designates the time when crops of grain and grass are gathered, and does not apply to second crops cut out of the harvest season. Wendell v. Osborne, 56 Iowa, 103. CAUSED TO ATTEND SCHOOL.-In London School Board v. Wood, Q. B. Div., July 2, 1885, Lord Coleridge, C. J., said: "The question is whether a parent who sends a child to a board school without the penny fee prescribed by the board rules incurs the penalty for not 'causing the child to attend the school.' It was held in Saunders v. Richardson that a parent does not cause a child to attend the school merely by sending the child to the door of the school when the child is sent away. And in the case of London School Board v. Wright it was given as the clear and unanimous opinion of the Court of Appeal that in a case in which a parent sends his child to the school without a fee, and the child is admitted and instructed, the proper course is to proceed for the penalty; their main reasons for so holding being that otherwise the act would be made inoperative, as parents would be able to send their children to the schools without the fees, and to do so with impunity, as they held that an action could not be brought. It appears to me that putting these two cases together, and looking at the terms of the act and the construction it has received, it is plain that the decision in this case must be against the defendant, as he has not, within the meaning of the act, caused the child to attend the school. It is true that in this case the | child has in fact attended the school and received instruction; but it is not the less true that the parent has not caused the child to attend the school, and it follows therefore that the parent has violated the act and has incurred the penalty, and was liable to be convicted." DOMESTIC USE.- Water for a garden is for "domestic use "in a dwelling-house, within the law of water-rates. Bristol Waterworks Co. v. Uren, 52 L. T. Rep. (N. S.) 661. The court said: "That section is as follows: 'Provided also that a supply of water for domestic purposes shall not include a supply of water for baths, or for cattle, or for horses, or for washing carriages, if the same horses or carriages are kept for hire, or by common carriers, or are the property of a dealer, or for steamengines, or for railway purposes, or for warming or ventilating purposes, or for working any machine or apparatus, or for any trade, manufacture or business whatsoever, or for watering gardens by means of any tap, tube, pipe or other such like apparatus, or for fountains, or for flushing sewers or drains, or for public baths, or for any ornamental purpose whatever.' By section 68 of the act of 1862 the mestic purposes within the meaning of the statute in question." MALICIOUS PROSECUTION OF CIVIL SUIT. There is no reason in a rule which would compel him to show that the action itself has likewise been decided in his favor. In such a case, as we have already seen, the injured party may maintain his action even though the suit in which the attachment, injunction or order of arrest was granted, was won by the plaintiff therein. See 1 Hill on Torts, 496, note a. In Cotterell v. Jones, 11 C. B. 713, the court held that ma per or insolvent without probable cause was actionable. But the court decided in the same case that where the person in whose name the suit was brought by a third party was solvent, no action would lie, because the costs would in contemplation of law compensate the injured party for his damages by reason of the suit. Maliciously causing an extent to issue against a party who is indebted to the crown, under the pre. tense that the debt is in danger of being lost to the crown, when the defendant has no reasonable ground for believing that the crown is in danger of losing the debt, renders the defendant liable in an action for malicious prosecution, after the proceeding has terminated in favor of the plaintiff. Craig v. Hassell, 4 Q. B. 481. company is to furnish, at the rates therein specified, every occupier of a private dwelling-house, or part of a private dwelling-house, with a sufficient supply of water for domestic use. The question here is, what is meant by supplying a private dwellinghouse or part of it with water for domestic use? Does it mean or imply the dwelling-house per se, or the dwelling-house with its appurtenances, as they may happen to stand assessed to the poor rate in the rate-book? We do not think that it necessarily means the dwelling-house with its appurtenances as assessed to the poor rate in the rate-book, for it might well be that the property occupied as a whole, and so assessed, might consist of a dwelling-liciously commencing an action in the name of a pauhouse together with such appurtenances, the supplying of which latter with water would clearly not be for domestic use. Suppose a dwelling-house, together with such an amount of land, to be assessed to the poor rate upon the rate-book, that the occupier keeps thereon a herd of cows or other animals, could it be said that the watering of such animals was a domestic use or purpose? It seems to us not, though as was pointed out by the late Master of the Rolls in the unreported case of Love v. Lambeth Waterworks Co., if only one cow or so were kept, and the milk was used in the house, the watering of such cows might well be held a domestic use. It seems to us to be in each case a question of fact, to be determined as each case arises. In our judgment the assessment in the rate-book is not necessarily to be taken as the standard. Does it then mean dwelling-house with its appurtenances, or only dwelling-house or part of it per se? It is admitted on all hands that these waterworks statutes supply a rough-and-ready way of estimating upon what and at what rate the water rate is to be levied and paid. Section 71 of the Bristol Waterworks Act, 1862, seems to us to contemplate that the supply of water to a private dwellinghouse for some garden purposes might well be considered as for domestic use, for it therein enacts what shall not be considered as domestic purposes, though, as was pointed out by Sir George Jessel in Love v. Lambeth Waterworks Co., every purpose not enumerated in the section cannot be considered a domestic purpose. The case of Busby v. Chesterfield Waterworks Co., El., Bl. & El. 176, upon the statute then in question, shows that water used for washing a private carriage and watering a private carriage-house may well be considered as a domestic use. The court in that case would not adopt the argument that domestic use' meant solely the use by the family for the consumption and cleanliness of those resident within the house. In Lowe v. Lambeth Waterworks Company Sir George Jessel held that the word 'house'in the act meant the tenement supplied with water, and not merely the house itself. In our judgment the water used for the mere amenities of the house, such as in this case, the watering of a flower garden surrounding and attached to and occupied with the house, may legitimately and fairly be held to be used for do Although a civil suit has been commenced, or any proceeding therein has been instituted without malice and with probable cause, yet if such suit be carried on or such proceedings be prosecuted with malice and after the plaintiff has ceased to have any probable cause for the continuance of the suit or proceeding therein, the plaintiff will be liable in an action on the case for malicious prosecution. Wetmore v. Mellinger, 22 Am. Law. Reg. (N. S.)711, decided by the Iowa Supreme Court. The court said: "If an action is commeuced without probable cause, an action for malicious prosecution can be maintained. Although commenced with probable cause it seems to us to necessarily follow that if it is prosecuted when there is no probable cause there can be a recovery. Such continued prosecution cannot be for the purpose of vindicat ing a right, but to vex, harass and oppress. If there was probable cause, the right to bring the action existed; but when such cause ceased, and there was a bad motive for its continuance, then from such time the party became a wrong-doer. In principle we do not think such a case differs materially from that when a party rightfully enters on real estate and afterward becomes a wrong-doer." The court in this case however held that the plaintiff is not bound to discontinue an action when the fact of want of probable cause is developed for the first time on the trial of the action, and the reasoning by which it supported this position seems to be unanswerable. "We do not think a plaintiff is bound to dismiss an action, or that he can be held liable in an action for malicious prosecution, if he does not do so when the evidence adduced on the trial sufficiently shows there is no probable cause for its further prosecution. In the first place a party has the right to take the chances of a verdict in his favor; and in the second place a party cannot, during the excitement of the trial, be expected to give the matter the requisite thought and attention. The fact therefore that probable cause had ceased to exist must otherwise appear than from the evidence introduced fendant for the malicious prosecution of a suit without on the trial." If the plaintiff intends to hold the deprobable cause, and not for the malicious commence ment of the action without probable cause, he must allege the former and not the latter cause of action in his complaint. The Massachusetts Supreme Court in Stone v. Swift, 4 Pick. 389, held that an allegation that defendant maliciously commenced a suit against the plaintiff and attached his property is not supported by evidence that the defendant, having made the attachment under a belief that he had a good cause of action, maliciously detained the property after he had learned that his suit was groundless. in the defense of that original suit in excess of the taxable costs obtained by him; and to maintain an action to recover such damages, it is not material whether the malicious suit was commenced by process of attachment or by summons only." In Marbourg v. Smith, 11 Kans. 554, the court approve and adopt the same doctrine: "We suppose the only question of law arising upon the last assignment of error is whether an action for malicious prosecution can be maintained in a case like the one at bar, where neither the person nor property was seized, nor bail nor security required, and the ordinary costs of defending the alleged malicious prosecution have already been allowed. We supose that an action for malicious prosecution can be maintained in any case where a malicious prosecution without probable cause has in fact been had and determined, and the defendant in such prosecution has sustained damage over and above his taxable costs in the case." In Woods v. Finnell, 13 Bush, 628, the court said: "Where the claim is not only false, but the action is prompted alone by malice and without any probable cause, the defendant's right of recovery for the expenses incurred and damages sustained, should be as or his body taken charge of by the sheriff." The general doctrine of liability for the malicious institution or prosecution of a civil suit without probable cause, even though there had been no seizure of person or property, is supported by the adjudications of many States. McCardle v. McGinley, 86 Ind. 538; S. C., 44 Am. Rep. 343; Easton v. Bank of Stockton, 31 Alb. L. J. 63 (Cal. Sup. Ct., Nov. 1884); Closson v. Staples, 42 Vt. 209; S. C., 1 Am. Rep. 316; Whipple v. Fuller, 11 Conn. 582; S. C., 29 Am. Dec. 330; Marbourg v. Smith, 11 Kans. 554; Burnap v. Albert, Taney Cir. Ct. Dec. 244; Wood v. Finnell, 13 Bush, 628; Wetmore v. Mellinger, 22 Am. Law Reg. (N. S.) 711 (Iowa Sup. Ct.); Pangburn v. Ball, 1 Wend. 345; Dempsey v. Lepp, 52 How. Pr. 11; Pierce v. Thompson, 6 Pick. 193. In McCardle v. McGinley, 86 Ind. 538; S. C., 44 Am. Rep-fully recognized as if his property had been attached 343, the court said: "It is too clear for discussion that the costs which the law gives a successful party are no adequate compensation for the time, trouble and expense of defending a malicious and groundless civil action. The party sued must devote some time to the defense of the suit; he must look up his evidence and employ counsel. This waste of time and necessary expenditure of money, by its results, affects the property of the defendant. For these expenses, the costs recovered in the action are no compensation at all. In some of the States reasonable attorneys' fees for the successful party are included in the taxable costs. It is not so here. No good and sufficient reason can be given why he, who has maliciously and without probable cause instituted a suit against another, should not be required to pay the party so sued such sum as will make him entirely whole, and so a majority of the decided cases in the country hold." The opinion of the court in Closson v. Staples is convincing: "The early English cases show very clearly that before the statutes entitling defendants to costs existed, they had a remedy at common law for injuries sustained by reason of suits which were malicious and without probable cause. It would seem however from more recent decisions that the present English rule, which restricts or limits the right of action for maliciously prosecuting civil suits without probable cause, stands mainly upon the ground that the costs which the statute provides that the successful defendant shall recover, are an adequate compensation for the damages he sustains; but under this rule it does not appear that the right of action is restricted to those cases where the process is by attachment." And the court, after stating the mode of commencing actions under the Vermont statutes, says: "The principle of the common law recognized by the English courts before the statutes allowing costs to defendants, and which gave a remedy for injuries sustained by reason of suits, which were malicious and without probable cause, is and ought to be operative still, and we think it affords a remedy in all such cases where the taxation of costs is not an adequate compensation for the damages sustained." The court thus clearly and tersely states the true doctrine: "We are of opinion that where a civil suit is commenced and prosecuted maliciously, and without reasonable or probable cause, and is terminated in favor of the defendant, the plaintiff in such suit is liable to the defendant in an action on the case for the damages sustained by him In Whipple v. Fuller, the court enunciated the same doctrine in these words: "But we wish to place our decision of this question upon broader principlesprinciples which we believe have received the sanction of the common law in earlier ages. Before the statute of Malbridge, which was passed in the fifty-second year of Henry III, no costs were recoverable in civil actions. This statute, and others subsequently enacted, gave costs to the successful defendant, as it is said by way of damage against the plaintiff pro falso clamore. Whatever might have been true when the several statutes giving costs were enacted, we cannot at this day shut our eyes to the truth known by everybody, that taxable costs afford a very partial and inadequate remuneration for the necessary expenses of defending an unfounded suit; and of course this remedy is not adequate to repair the injury thus received, and the common law declares that for every injury there is a remedy. Before the statutes entitling defendants to costs existed, they had a remedy at common law for injuries sustained by reason of suits which were malicious and without probable cause; and this principle is and ought to be operative still in all cases where the taxation of costs is not an ample remedy." As in actions for criminal prosecutions, the plaintiff must show that the proceeding or suit has terminated in his favor. Wood v. Laycock, 3 Metc. (Ky.) 192; O'Brien v. Barry, 106 Mass. 300; S. C., 8 Am. Rep. 329; Grantv. Moore, 29 Cal. 644; Cardival v. Smith, 109 Mass. 158; S. C., 12 Am. Rep. 682; Bird v. Lime, 1 Com. 190; Fisher v. Bristow, 1 Doug. 215; Tatum v. Morris, 18 Ala. 302; Poynton v. Forster, 3 Camp. 60; Whitworth v. Hall, 2 B. & Ad. 698; Howell v. Edwards, 8 Ired. 516; Spring v. Besore, 12 B. Mour. 551. But it is not necessary that there should be a trial or a judgment in favor of the defendant. A voluntary discontinuance by the plaintiff is sufficient. Burhans v. Sandford, 19 Wend. 417; Nicholson v. Coghill, 6 D. & Ry. 12; Wetmore v. Mellinger, 22 Am. Law Reg. 711 (Iowa Sup. Ct.); Green v. Cochrane, 43 Iowa, 544; Cardival v. Smith, 109 Mass. 158; S. C., 12 Am. Rep. 682; Watkins v. Lee, 5 M. & W. 270; Ross v. Norman, 5 Exch. 359; Bicknell v. Dorion, 16 Pick. 478-487; Savage v. Brewer, 16 id. 453. A voluntary dismissal of a civil suit or proceeding is prima facie evidence of want of probable cause. (Same cases.) This doctrine is based upon sound principle. The reason upon which it rests is clearly stated in Wetmore v. Mellinger, supra. "When a person causes a criminal prosecution to be commenced, he cannot dismiss it. This can only be done by the proper officers of the government. There is therefore much reason in holding the dismissal of a criminal prosecution should not cast on the defendant in a civil action for malicious prosecution the burden of showing he had probable cause for commencing the criminal prosecution. But the plaintiff in a civil action has full control of it and may dismiss it at his pleasure, and when he does so we are of opinion it should be regarded as prima facie evidence that he did not have probable cause for commencing it. If he did, he can as readily so show as for the other party to show he had not." While it is the general rule that judgment against the defendant in a civil suit is conclusive evidence of probable cause, this rule does not apply to a case in which such judgment has been reversed on appeal. The judgment of the lower court is then only prima facie evidence of probable cause. Burt v. Place, 4 Wend. 591; Goodrich v. Warner, 21 Conn. 432; Mayer v. Walter, 64 Penn. St. 283. But in Palmer v. Avery, 41 Barb. 290, the court inclined to the contrary view. Palmer sued Avery for the malicious prosecution of a civil suit against him by Avery. The suit was tried in justice's court and a verdict rendered in favor of Avery. Palmer then appealed to the county court and the jury rendered a verdict in his favor in that court. Avery insisted that the first verdict in his favor was conclusive evidence, and the court so held and nonsuited the plaintiff, Palmer. On appeal this decision was affirmed, Morgan, J., writing the opinion and Foster, J., concurring. Mr. Justice Bacon dissented from this view of his associates, although he concurred in affirming the judgment on another ground. It will be seen however that there is a marked and important distinction between this case and Burt v. Place. In Burt v. Place, the action alleged to have been instituted without probable cause was not tried de novo in the appellate tribunal as in Palmer v. Avery. The judgment was reversed for error; and therefore it was a cogent answer to the argument of probable cause predicated on the judgment in the court below, 'that that judgment was erroneous and might have been in favor of the other party, had not the mistake for which it was reversed been committed. In other words, the principle of law that controls this question is that the success of the plaintiff in the original suit is conclusive evidence of probable cause only when the defendant has not been debarred by the error of the court from doing all that he was prepared to do, and proving all that he was ready to prove, in order to defeat the plaintiff's claim. Of course the only proper evidence of mistake on the part of the court should be a judgment of reversal. Until the defendant reverses the judgment against him he will be confronted by an undisturbed decision in favor of the plaintiff, which under all the authorities he has no power to assail collaterally. But the moment that that decision is overruled, he clearly has the right to object to the original termination of the suit in favor of the plaintiff, that he did not have a fair trial because of the error which led to the reversal of the judgment, aud that had that error not been made, the suit might have been decided in his favor. But in the case of Palmer v. Avery there was nothing to show that the verdict of the first jury in the court below was not correct, except the fact that the jury in the county court came to a different conclusion. Palmer could not complain of the verdict. He did not appeal because the court had denied to him any legal right. In cases like that in which he was defeated, the party who is vanquished has an absolute right to appeal and retry the issues of fact before a jury in the county court, irrespective of the question whether any error was committed in the court below. It therefore appeared that a jury in a case in which the defendant had had a fair trial, had rendered a verdict in favor of the plaintiff and had thus decided that the plaintiff had probable cause for prosecuting the suit. Such a verdict should be conclusive evidence of probable cause, although another jury should come to a different conclusion; for if the judgment of a jury on a fair trial sustaining a plaintiff's claim is not to be taken as conclusive evidence of probable cause, no man would be safe in instituting a suit which might be retried in another tribunal, although there was no error on the first trial. There are several cases that support the general doctrine that a verdict or decision in favor of the plaintiff is conclusive evidence of probable cause notwithstanding the reversal of the judgment by an appellate tribunal. These however are all cases of criminal prosecution. Whitney v. Peckham, 15 Mass. 243; Cloon v. Gerry, 13 Gray, 201; Witham v. Gowen, 14 Me. 362; Payson v. Caswell, 22 id. 212. And it is doubtful whether the Massachusetts cases go so far. All of the authorities agree that if the judgment in favor of the plaintiff is procured through fraud, conspiracy or perjury on his part, it is not an absolute bar, but that want of probable cause may be shown in spite of it provided it has been reversed; for the defendant in the original suit must always show a legal termination of the suit in his favor before he can maintain his action. See last above cases, and also Burt v. Place, 4 Wend. 591; Palmer v. Avery, 41 Barb. 290; Ewing v. Sanford, 19 Ala. 609; Womack v. Circle, 32 Gratt. 324. It must be confessed however that the weight of authority is in favor of the doctrine that a judgment in favor of the defendant in the malicious prosecution suit is conclusive on the question of probable cause, even though the judgment is afterward reversed for error, provided there has been no fraud or unfair means resorted to by the defendant to secure such judgment. Spring v. Besore, 12 B. Monr. 551; Griffis v. Sellars, 4 Dev. & Batt. 174; Welch v. Boston R. Corp., 32 Alb. L. J. 99, to be reported in 14 R. I. Reports. The case of Reynolds v. Kennedy, 1 Wils. 232, is invariably cited as an authority to sustain this doctrine, but an analysis of the case confirms the construction placed upon the decision by Judge Marcy in Burt v. Place. He says that "the question seems to have been what was sufficient rather than what was conclusive evidence of probable cause." In Womack v. Circle, 29 Gratt. 192, the Supreme Court of Virginia was divided in opinion on this question; but on a second appeal the broad doctrine of the conclusive effect of a judgment on the question of probable cause, though subsequently reversed for error, was affirmed, the court deciding that in an action for malicious prosecution the judgment of the justice before whom the plaintiff was brought upon the complaint of the defendant that plaintiff had attempted to bribe one H. to burn defendant's property, requiring plaintiff to give security for good behavior is conclusive evidence of probable cause, unless defendant knew that the testimony before the justice was false, even though upon appeal th judgment is reversed and the plaintiff in the maliciou y prosecution discharged. 32 Gratt. 324. It will be ropticed however that this case, like most of the authner ties already cited, was a case of a criminal and r a civil prosecution. The vital importance to socitatute the due enforcement of the criminal law mrelative justify the absolute protection of the unsu prosecutor of a criminal proceeding, who hasid intera judgment against the defendant in the firs-atute prewhich has been subsequently reversed, reen considcourse, such prosecutor has resorted to no ey must be to secure such judgment. No other to which the than this consideration of public policy regin v. B. C. support such a doctrine, for it is too 459. ment that whether the proceeding alleg |