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An action cannot be maintained for the malicious institution of a civil suit in which no arrest, replevin, injunction, or attachment was issued. (Bay v. Law, 1 Peters C. C. It. 210; Potts v. Imlay, 1 South. E. 331; Samll v. Boherts, Salk. 15; Parlcer v. Langley, Sel. Cases, 161; and Allgor v. Stilwell, 1 Halst. N. J. 166.)

James C. Smith signed and swore to the petition filed in the Probate Court, under which last mentioned decree was made. This fully committed him to and bound him by the adjudication made in that proceeding. (Putnam v. Day, 22 Wall. 60, 64.) The decree of the Probate Court adjudged that Smith should pay “ all expenses attending the application of said petition, and the hearing thereon, and all expenses attending the making and execution of said deed.” Smith was bound by this decree. It was an adjudication of his rights under the agreement of January 15th, 1866. No appeal was taken, and that decree is a finality, unreversible and unattackable in this suit. The rights of Smith to a deed from the executors of Dooley depended upon that decree ; by it, through it, and under it, he was to have the conveyance. How was Smith entitled to his deed before he had *344complied with the terms of that decree? Were not the executors of Dooley fully justified in suing Smith in ejectment for the land, which he had obtained possession of under the agreement of January 15th, 1866, when he distinctly refused to comply with the decree into which that agreement had been merged ?

Byers & Elliott, for the Respondent, on the point that an action for malicious prosecution would not lie, cited Masten v. Eeyo, 2 Wend. 424; Bisson v. Southard, 10 hi. Y. 239; and Tatum v. Morris, 18 Ala. 302.)

After the case had been submitted the Court made the following order:

One of the points relied upon by the appellant is that the evidence did not justify the verdict, and he has referred us to such portions of the evidence as he deemed necessary in support of that proposition. On the assumption that we cannot review the evidence, as the case is presented by the record, the respondent has wholly omitted to refer us to such portions of the evidence, if any there be, as tend to support the verdict. We cannot perform the duty of counsel in searching through a voluminous record to ascertain whether there be any evidence to uphold the verdict; and it is, therefore,

Ordered, That within twenty days the respondent file an abstract of such portions of the evidence as he may claim justified the verdict, referring to the proper folios in the transcript.

After the abstract had been filed the opinion was delivered.

By the Court :

It is not necessary to determine in this action whether under any circumstances an action to recover damages for the malicious prosecution of a civil action, when no arrest of the person of the defendant, or seizure of his property has occurred, can be maintained in this State. The adjudged cases in England and America are conflicting upon the question, and depending to a considerable degree, it would seem, upon the prevailing statutory provisions as to the recovery of costs by the defendant upon the determination of a civil action in his favor.

*345But assuming in favor of the plaintiff here that such an. action will, under proper circumstances, obtain in this State, we are of opinion, that, upon the facts incontestably appearing in this case, there was probable cause for the bringing of the action in which the defendant here was a plaintiff. It was the plain duty of the plaintiff here, (if he intended to retain the possession of the land) under the terms of the decree of the Probate Court of San Mateo County, to pay the expenses mentioned in that decree, and upon his refusal to do so the defendant here was certainly at liberty, and perhaps it was his absolute duty to bring the action of ejectment—as much so as if the plaintiff here had refused to pay the amount of the promissory note mentioned in that decree.

Judgment reversed and cause remanded.

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