ought not to be allowed to invoke for his protection upon the issue of probable cause a conviction by the inferior magistrate when that conviction was procured by "fraud, conspiracy or subornation in its procurement." It is elementary that no defendant can set up in defence his own fraud or anything procured by his own fraud.

Griffis v. Sellars, 4 Dev. & Bat. 176, is the only case to the contrary, in which an attempt has been made to give a reason for the proposition that, even when procured by his own fraud or through a conspiracy to which he was a party, a conviction of the plaintiff by the inferior magistrate (reversed on appeal) is decisive in favor of the defendant of the issue of probable cause on his part. The reason there given is that when the case was heard by the inferior magistrate the plaintiff (in the subsequent action for malicious prosecution) had his day in court and that he is concluded by the decision then made convicting him of guilt. That is to say that the conviction by the inferior magistrate although reversed on appeal makes the issue so decided res judicata. It is only a final judgment which concludes the parties under the doctrine of res judicata. A conviction below followed by an acquittal on appeal does not establish the guilt of the person so convicted. So far from that being the fact the contrary is the established law of res judicata. A conviction below is wiped out by the acquittal on appeal so far as the doctrine of res judicata is concerned. A conviction below followed by acquittal above on which final judgment is entered establishes the innocence not the guilt of the prisoner. Under these circumstances it is not necessary to go farther and point out (in the first place) that the parties to the criminal prosecution and those to the subsequent action for malicious prosecution are not the same and (in the second place) that the issues tried in the criminal complaint and in the civil action for malicious prosecution are quite different. It is plain that the rule of Whitney v. Peckham is not based on the doctrine of res judicata. The only other reason found in Griffis v. Sellars for the decision there made is that if the conviction below (although reversed on appeal) does not establish probable cause on the part of the defendant in the subsequent action for malicious prosecution the parties could go on forever in bringing actions and cross actions for malicious prosecution. As soon as it is established that Whitney v.

Peckham does not rest on the doctrine of res judicata this further reason falls to the ground. We are of opinion that the reasoning in Griffis v. Sellars is not sound.

The conclusion thus reached on principle is established by the great weight of authority, although there is some conflict in the decisions on the point. As we have said already, it was decided in Griffis v. Sellars, 4 Dev. & Bat. 176, (and this was followed in Smith v. Thomas, 149 N. C. 100,) that even when procured by fraud conviction below is final upon the issue of probable cause. And Parker v. Huntington, 7 Gray, 36, has been cited as a decision to that effect. See also in this connection Clements v. Odorless Excavating Apparatus Co. 67 Md. 461; S. C. 67 Md. 605. But the overwhelming weight of authority is to the contrary. Burt v. Place, 4 Wend. 591, is the first decision upon the point; for subsequent cases in New York see Palmer v. Avery, 41 Barb. 290, 303; affirmed 41 N. Y. 619; Mesnier v. Benicke, 82 App. Div. (N. Y.) 404, 407; Johnson v. Girdwood, 7 Misc. (N. Y.) 651, 654, affirmed 143 N. Y. 660. For decisions to that effect see Carpenter v. Sibley, 153 Cal. 215; Boogher v. Hough, 99 Mo. 183. For statements to that effect in cases where the point was not actually decided, see Cloon v. Gerry, 13 Gray, 201, 202, 203; Dennehey v. Woodsum, 100 Mass. 195, 197; Crescent City Live Stock Co. v. Butchers' Union Slaughter-House Co. 120 U. S. 141, 151; Knight v. International & Great Northern Railway, 61 Fed. Rep. 87, 90; Grohmann v. Krischman, 168 Penn. St. 189, 203; MacDonald v. Schroeder, 214 Penn. St. 411, 414; Saunders v. Baldwin, 112 Va. 431, 441; Womack v. Circle, 32 Gratt. 324, 327; Payson v. Caswell, 22 Maine, 212, 226; Phillips v. Kalamazoo, 53 Mich. 33, 34; Thick v. Washer, 137 Mich. 155, 157; Welch v. Boston & Providence Railroad, 14 R. I. 609, 610; Memphis Gayoso Gas Co. v. Williamson, 9 Heisk. 314, 323; McElroy v. Catholic Press Co. 254 Ill. 290, 298; Topolewski v. Plankinton Packing Co. 143 Wis. 52, 64; Root v. Rose, 6 No. Dak. 575, 580; Holliday v. Holliday, 123 Cal. 26, 32; Hartshorn v. Smith, 104 Ga. 235, 238; Casey v. Dorr, 94 Ark. 433, 436; Spring v. Besore, 12 B. Mon. 551, 556; Duerr v. Kentucky & Indiana Bridge Co. 132 Ky. 228, 232.

Whether there is a conflict of authority on this point in this Commonwealth depends upon what the decision in Parker v. Huntington, 7 Gray, 36, ought to be taken to stand for. On one

side we have the statement of Chief Justice Shaw in Cloon v. Gerry, 13 Gray, 201, 202, 203 (part of which has been quoted above), and a more particular statement by Wells, J., in Dennehey v. Woodsum, 100 Mass. 195, 197, in accord with the great weight of authority set forth above. On the other hand the decision of this court in Parker v. Huntington, 7 Gray, 36, is to the contrary if that is to be taken to be a decision to that effect.

In Cloon v. Gerry, 13 Gray, 201, 202, Chief Justice Shaw speaking for this court said: "The question of reasonable and probable cause, when the facts are not contested, is a question of law. And when the plaintiff had been convicted by a tribunal, constituted by law, with authority to render a judgment, which, if not appealed from, would have been conclusive of his guilt, and such judgment is not impeached on the ground of fraud, conspiracy or subornation in its procurement, although afterwards reversed on another trial, it constitutes sufficient proof that the prosecution was not groundless, and defeats an action for malicious prosecution. The case of Whitney v. Peckham, 15 Mass. 243, is directly in point, and we think it is well sustained by authorities." In Dennehey v. Woodsum, 100 Mass. 195, 197, Wells, J., said: "The plaintiff seeks to take this case out of the general rule, on the ground that the conviction before the trial justice was obtained by the false testimony of the defendant himself, in pursuance of his original malicious purpose. If the conviction had been obtained solely upon the defendant's own false testimony, there would be strong reason for holding that it afforded no evidence of probable cause; and then the ultimate acquittal might warrant the maintenance of the action. But we do not think that the declaration sufficiently shows that the conviction before the trial justice was obtained solely upon the false testimony of the defendant." While these are statements only and not decisions they are more than mere obiter dicta. They are careful statements of the limitation of the rule first established by Whitney v. Peckham which was applied in both those cases.

Parker v. Huntington, 7 Gray, 36, was a case in which the plaintiff brought an action for malicious prosecution against the district attorney of Middlesex County in that he had caused the plaintiff to be indicted for perjury. It appeared that at the first trial for perjury the plaintiff was convicted but that he had

been subsequently acquitted. He thereupon brought the action for malicious prosecution which was before this court in 7 Gray, 36. The opinion in Parker v. Huntington, 7 Gray, 36, was in these words: "There is nothing in this case, as it now stands before us, which has not heretofore been decided against the plaintiff, in Parker v. Farley, 10 Cush. 279, and Parker v. Huntington, 2 Gray, 124, or, at least, intimated in the latter case to be insufficient to maintain his action. What we then intimated, we now adjudge. This case furnishes no exception to the rule, that a conviction of a party, by a jury, is conclusive evidence of probable cause for the prosecution. See also Phelps v. Stearns, 4 Gray, 105, that an injury caused by perjury is not a legal ground of action." The case of Parker v. Huntington, 2 Gray, 124, was before this court upon a demurrer to the declaration in an action for malicious prosecution against both the district attorney and the man (Farley by name) whose false testimony caused the plaintiff (Parker) to be convicted for the perjury of which he was acquitted in the end. In the case in 2 Gray, 124, the demurrer was special and for that reason this court did not then decide whether the declaration in that case set forth a cause of action, but they intimated that it did not. They intimated that it did not although it was alleged in that declaration that there was a conspiracy between the district attorney and Farley to have Parker indicted on the testimony of Farley which was known by both of them to be false. Under the statement of Chief Justice Shaw in Cloon v. Gerry, ubi supra, the declaration in 2 Gray, 124, did set forth a cause of action. If the court in 7 Gray, 36, decided what was intimated by the court in 2 Gray, 124, we have a decision which is in conflict with the statement of Chief Justice Shaw in Cloon v. Gerry. But that does not seem to have been the view which this court subsequently took of the decision in 7 Gray, 36. In Dennehey v. Woodsum, ubi supra, Wells, J., immediately before the part of his opinion quoted above, said: "In the first count it is alleged that the plaintiff was convicted of the criminal charge before the trial justice, but, upon appeal to the Superior Court, was there acquitted. This does not show want of probable cause. On the contrary, it is ordinarily held to be conclusive evidence of probable cause, and to defeat the action. Whitney v. Peckham, 15 Mass. 243. This is so, even when the first conviction is obtained by

false testimony. Parker v. Huntington, 7 Gray, 36." This means construed in the light of what follows: "This is so when the first conviction is obtained by the false testimony of persons other than the defendant in the subsequent action." If this is the extent of the decision in Parker v. Huntington, 7 Gray, 36, it is not in conflict with the opinions in Cloon v. Gerry and Dennehey v. Woodsum, ubi supra. It seems to be pretty plain that this must be taken to be the extent of that decision. The opinion in Cloon v. Gerry was rendered within three years after the decision in Parker v. Huntington, 7 Gray, 36. Chief Justice Shaw must have had it in mind when he delivered his opinion in Cloon v. Gerry. It is hardly conceivable that he would not have referred to it in that opinion if he had thought it inconsistent with the law there laid down.

There is one possible difference between the decision in Parker v. Huntington and the rule laid down in Cloon v. Gerry, namely: In Parker v. Huntington there does not seem to have been any affirmative evidence of fraud or conspiracy not before the tribunal which made the first conviction which was reversed on appeal, while it seems to be assumed in Cloon v. Gerry that, to take a case out of the rule in Whitney v. Peckham, there must be evidence aliunde of fraud or conspiracy. It is hard to believe that it was upon this ground that Parker v. Huntington was decided. For in deciding Parker v. Huntington the court said: "There is nothing in this case, as it now stands before us, which has not heretofore been decided against the plaintiff, in Parker v. Farley, 10 Cush. 279, and Parker v. Huntington, 2 Gray, 124, or, at least, intimated in the latter case to be insufficient to maintain his action. What we then intimated, we now adjudge." In Parker v. Huntington, 2 Gray, 124, it was in terms alleged that the whole proceeding was had pursuant to a conspiracy between Farley and the district attorney and both of them knew that Parker did not commit perjury.

If it is necessary to choose between the decision in Parker v. Huntington, 7 Gray, 36, and the statement by Chief Justice Shaw in Cloon v. Gerry we are of opinion that the rule stated by the Chief Justice (the rule which is right as matter of principle and the one supported by the great weight of authority) ought to prevail.

If the plaintiff in the case at bar had made one offer of proof and that had been an offer to prove what (as stated in the bill of ex