
    John Welch vs. Boston & Providence Railroad Corporation.
    In an action for malicious prosecution brought by A. against B.:
    
      Held, that a judicial finding in the former action in favor of B. and against A. by the court of original jurisdiction is conclusive of probable cause, when such finding is not procured by unfair means, even if such finding is reversed on appeal.
    Trespass on the case for malicious prosecution. On demurrer to tbe declaration.
    
      December 31, 1884.
   Carpenter, J.

This is case for malicious prosecution founded on three actions brought by tbe Boston & Providence Railroad Corporation against John Welch, in the Justice Court of the city of Providence. The declaration sets out these actions, and in each of them states that “ upon trial of said action ” the Justice Court gave judgment in favor of the railroad corporation and against Welch. As to two of these actions, the declaration does not charge that the judgment of the Justice Court has ever been reversed. As to the third, the declaration charges a reversal on appeal. The railroad corporation has demurred to the declaration, and argues that the conviction of Welch in the court of first instance is conclusive evidence of probable cause for the actions brought against him. We think the demurrer must be sustained.

It was early decided in Reynolds v. Kennedy, 1 Wils. 232, that the finding against the plaintiff by the tribunal before which the, complaint was made is conclusive evidence that there was probable cause for the complaint, even although that finding was after-wards reversed on appeal. This case is cited with apparent approval by Lord Mansfield and Lord Loughborough in Johnstone v. Sutton, 1 Term Rep. 510. The same doctrine has been applied in numerous cases in this country. Whitney v. Peckham, 15 Mass. 243; Cloon v. Gerry, 13 Gray, 201; Palmer v. Avery, 41 Barb. S. C. 290; Spring v. Besore, 12 B. Mon. 551; Griffis v. Sellars, 4 Dev. & Batt. 176.

Page $ Owen and Amasa M. Baton, for plaintiff.

Arnold Green, for defendant.

In Burt v. Place, 4 Wend. 591, the court carefully examine and expound the doctrine of Reynolds v. Kennedy, and sustain the declaration on the clear ground that it goes beyond the declaration in that case, inasmuch as it alleges that the defendant, well knowing that the plaintiff had a good defence, prevented the plaintiff from procuring the necessary evidence to make out that defence by causing him to be detained a prisoner until the judgments were obtained, and that the imprisonment was for the purpose of preventing a defence to the actions. In this case, however, there is no allegation that the judgments of the Justice Court were obtained by any unfair means practised on the part of the defendant. We think the true rule is, that a judicial finding by the court of original jurisdiction, not alleged to have been procured by unfair means, must be held to be conclusive on the question of probable cause.

There are, indeed, cases which hold to the contrary, but they are few in number, and do not seem to us to be otherwise sufficient to control the general current of the authorities. Goodrich v. Warner, 21 Conn. 432; Mayer v. Walter, 64 Pa. St. 283. It is to be noted that in Virginia the court were divided in opinion on this question. Womack v. Circle, 29 Gratt. 192.

In this view of the case, we must say that the declaration conclusively shows that there was probable cause for bringing each one of the three suits. The action therefore cannot be maintained. Proof of malice will not sustain the action if it appears that there was probable cause for the prosecution. King v. Colvin, 11 R. I. 582. Demurrer sustained.  