McGuirk v. O'Halloran

TOWFTfL, Circuit Judge. The plaintiff’s declaration is in two counts. The first alleges false imprisonment; the second malicious [910] prosecution. .The defendant demurred to both counts, but at the argument he did not press his demurrer to the first. The second alleges malicious prosecution in the common form, except that it substitutes, for the usual allegation of the plaintiff’s acquittal the following: “At said 'police court the plaintiff was, solely through and by means of perjury and subornation of perjury by said defendant, convicted, of the crime of keeping and maintaining a confmon, noisy, ill-governed, and disorderly house, and ordered by said court to pay a fine of forty dollars, which fine she thereupon paid.” ■ To establish' malicious prosecution the plaintiff must allege and prove, among other things, both (1) that the prosecution was without probable cause, and (2) that it ended in favor of the plaintiff. These aré separate requirements, riot to be confounded with each other. The-defendant may prove probable cause by showing a conviction of the plaintiff in a lower court, although this conviction has been subsequently reversed, and the plaintiff has been acquitted. But the presumption, of probable cause arising from the plaintiff’s conviction in a lower court may he overcome by evidence that this conviction, as alleged in the case at bar, was. procured solely by the defendant’s perjury. The defendant’s want of probable cause, however shown, does not excuse the plaintiff from proving that his prosecution ended in his acquittal, or in its equivalent. This requirement has no exception material to consider here. Hence, the second count of the declaration, which alleges final judgment against the defendant, is fatally defective (Pollock on Torts [Webb’s Am. Ed.] 392, 394), and for a recent illustration, Davis v. Johnson, 101 Fed. 952, 955, 42 C. C. A. 111. Demurrer to the' first count overruled. Demurrer to the second count sustained.