
    No. 2582.
    George W. Ward v. John R. Sutor.
    1. Malicious Prosecution.—One who maliciously and without probable cause puts in operation the machinery of judicial proceedings under which an arrest and trial is had, thereby incurs liability from which, when sued for malicious prosecution, he is not relieved by the fact that the subsequent proceedings in the prosecution so begun and in a court having jurisdiction, were so irregular that had a conviction resulted, the judgment would have been a nullity. ■
    9, Evidence.—In a suit for malicious prosecution, based on the voluntary affidavit of the defendant, which put in motion a prosecution in a United States circuit court, resulting in trial and verdict of not guilty, the fact that in the opinion of the Texas court trying such suit for malicious prosecution the United States court had no jurisdiction to try the cause, will not be sufficient to exclude the transcript of the prosecution proceedings when offered in evidence for the purpose of showing the affidavit, the information based thereon and the verdict and judgment of not guilty.
    3. Copies—Certificate.—The custodian of judicial records in giving certified copies should set them out only as the originals appear, and need not certify that an affidavit contained therein was made by the party who on the face of the copy of the paper appears to have made it.
    Appeal from Harris. Tried below before the Hon. James Masterson.
    Appellant sued for damages for malicious prosecution, and alleged that appellee had made an affidavit before the United States commissioner, at Houston, charging that the appellant had taken a letter from the post office at* Lynchburg, Texas, which was addressed to appellee, with design to pry into business or secrets of appellee, which charge was a crime against the laws of the United States; that the United States district attorney, basing his action upon said affidavit, made by the appellee, presented and returned into the United States circuit court at Galveston a criminal information, charging appellant with said crime, and thereupon a warrant for appellant’s arrest issued from said court, and he was arrested at his home in Harris county and carried to Galveston, and was there detained for four days, and until he gave bail; that on April 6, 1885, appellant was tried for said crime before said court on said criminal information, and appellee appeared at the trial and testified, and maliciously prosecuted appellant, although he (appellee) knew that the charge made and prosecuted was false and without cause er ground, but appellant was found not guilty by a jury and discharged. The petition alleged the falsity of the charge, and claimed damages, actual and exemplary.
    Appellee answered by general denial. At the trial in the court below appellant offered in evidence a transcript containing, first, the affidavit made by appellee before the commissioner; second, the criminal information; third, the verdict of the jury in the case of The United States v. George Wood, certified from the United States circuit court. On appellee’s objection, the court excluded the offered evidence, on the ground that the United States circuit court had no jurisdiction to try said crime on an information; that its proceedings were void, and that this action could not be supported by such evidence. Under the court’s instruction, the jury returned a verdict for defendant.
    Hutcheson, Carrington & Sears, for appellant:
    The court erred in holding that, as the proceedings in the circuit court of the United States were void, and said court had no jurisdiction to try plaintiff on information filed, that plaintiff could not maintain an action for malicious prosecution against the prosecutor in the said circuit court, nor introduce in evidence certified copies of proceedings had in said court. (2 Greenleaf on Evidence, sec. 449; Morris v. Scott, 21 Wendell, 281; Bouer v. Clay, 8 Kansas, 580; Stone v. Stephens, 12 Conn., 219; Sweet v. Negus, 30 Mich., 406; Parli v. Reed, 2 Pac. Rep., 635; Hays v. Younglove, 7 B. Monroe, 545; Blackstone, book 3, p. 127; Bigelow on Torts, 88, 89, and cases cited; U. S. Rev. Stats., sec. 3892.)
    The circuit court of the United States having held its process sufficient, and having tried appellant thereon, the appellee can not now question their sufficiency. (Parli v. Reed, 2 Pac. Rep., 635.)
    In order to prove the fact of prosecution, it was necessary for appellant to produce in evidence certified copies from the United States circuit court of the voluntary affidavit, this information, and acquittal. Parol evidence was not admissible to show that he was prosecuted. The exclusion of these rendered all other evidence inadmissible. (Sublett v. Kerr, 12 Texas, 367; Sayles v. Briggs, 4 Metcalf, 421; 2 Greenleaf on Ev., sec. 450; 2 Addison on Torts, sec. 877; Blackstone, book 3, p. 126; 2 Starkie on Evidence, star page 677; 3 Phillips on Evidence) star pages 567, 568.)
    
      Charles E. Dwyer, for appellee:
    The ruling of the court below in excluding the evidence offered and referred to in appellant’s bill of exceptions, was correct, because it appears affirmatively from the record that the circuit court of the United States never acquired any legal jurisdiction of the subject matter, or of the person of appellant, for the reason that all the proceedings in that court were void ab initio. The proceedings in that court having been commenced by information filed by the United States district attorney, for an infamous crime, an offense that could only be prosecuted by indictment, they were absolutely void in their inception, and there is no legal evidence in the record to connect appellee therewith. (Fifth amendment, Constitution of United States; Statutes of United States, sec. 3892; Bixby v. Brundige, 2 Gray, 129; Ex parte Wilson, 114 United States Rep., 417; Braveboy v. Cockfield, 2 McMullen, South Carolina Court of Appeals, 270; 1 Hilliard on Torts, 426, note and cases cited; 1 American Lead. Cases, note, star page 209; Statutes of United States, sec. 1014.)
    An action for malicious prosecution will not lie for making an affidavit charging another with an offense if no warrant is issued or arrest is made thereen; the action must be for slander. The United States commissioner was the only authority that could issue a warrant for the arrest of appellant upon the alleged affidavit offered in evidence, and it not appearing from the record that he did so, no -cause of action is disclosed. (Munn v. Dupont et al., 1 Am. Lead. Cases, note star, 209; 1 Hill on Torts, 422, and note and authorities cited.)
    It is admitted that the authorities are conflicting upon the question as to whether or not a void criminal proceeding is a sufficient basis for a suit for malicious prosecution; but, regardless of that question, there was no evidence offered in the court below to show that appellant has been injured by. the rulings of that court. Appellant failed to offer any evidence tending to prove that any warrant was ever issued by the United States commissioner, or any other action taken by him upon the alleged affidavit, or any legal evidence tending to prove that appellee had any voluntary connections with any alleged proceedings in the circuit court of the United States in the case of the United States v. George Wood, or any legal evidence' tending to prove that the said case of the United States v. George Wood has been terminated, or any evidence that appellant has been damaged by any act of appellee. (Collin v. Kay, 6 S. W. Rep., 5, last clans-e of decision; Roundtree v. City of Galveston, 42 Texas, 623; Guerin v. Patterson, 55 Texas, 124; King v. Pfeiffer, 62 Texas, 307; Bowles v. Beal, 60 Texas, 322; McCarty v. Wood, 42 Texas, 39; 1 Am. Lead. Cases, note and authorities .cited, star page 208.)
   Walker, Associate Justice.

The questions of practice raised by appellee are not well taken. The bill of exceptions shows the precise grounds of the ruling of the court in excluding the certified copy from the United States circuit court, viz., ••'that the United States circuit court had no jurisdiction (Ex parte Wilson, 114 U. S. Rep., 429); that the proceeding was a nullity, and the evidence offered was not competent for any purpose in this cause.” The petition setting out these proceedings as cause of action, it is manifest that, without evidence of them, the plaintiff must necessarily fail; nor could the defect have been cured by any testimony whatever. The ruling, if error, was necessarily injurious to the plaintiff.

As to the failure of the clerk to certify that the copy was of an affidavit by defendant, etc., the failure was unimportant unless the certificate to these matters would have been testimony. The custodian of judicial records, in giving copies, only sets them out as they appear, and so certifies. The record and the copies of affidavit and verdict speak for themselves.

Upon the effect of the excluded testimony authorities are conflicting. Following the preponderance in them, and giving due regard to the rights of individuals suffering personal injury, we hold that one maliciously and without probable cause putting into operation the machinery of judicial proceedings resulting in the arrest and trial of the accused, thereby incurs liability from which, when sued for malicious prosecution, he is not relieved by the fact that the subsequent proceedings in the prosecution so begun and in a court having jurisdiction of the subject matter, were so irregular that, had a conviction resulted, the judgment would have been a nullity. (11 Greenl., sec. 449; 1 Am. Lead. Cases, 209; Wait’s Actions and Defenses, secs. 338, 339; Morris v. Scott, 21 Wend., 281; Bouer v. Clay, 8 Kan., 583; Stone v. Stephens, 12 Conn., 225; Sweet v. Negus, 30 Mich., 406; Bixby v. Brundige, 2 Gray, 129; 7 B. Mon., 545;. Turpin v. Remy, 3 Blackford, 215; and Allen v. Greenlee, 2 Devereaux, 371.)

Opinion delivered March 23, 1888.

For the error in excluding the certified transcript of the proceeding in the United States circuit court, the judgment below is reversed and the cause remanded.

Beversed and remanded,  