NOTES. 223 against him, and that he would be released from arrest and imprisonment," the plaintiff pleaded guilty, and promptly got ten months in jail. Pryor, J., and DaJy, C. J., in able opinions, said that it was not possible that for such a confessed wrong the plaintiff should be remediless ; that the judg- ment was an estoppel only between the plaintiff and the government, and that it certainly could not under these circumstances be used as a shield for the defendant, whether or no the action came within the lines of any previous cases. They ordered judgment for the plaintiff, with costs, Bischoff, J. concurring. The case may go through one or more stages of appeal before final decision, and final comment on it is therefore not possible. But there are considerations which may for the sake of convenience be put in the form of an argument against this result. The court appear to regard the action as for a new species of grievance ; but it certainly bears a suspi- cious resemblance to the familiar action for malicious prosecution ; and if viewed in this light its maintenance upon the admitted facts is ap- parently at variance with one of the fundamental legal doctrines under that head of the law ; for, among other requisites to the maintenance of that action, it has been considered essential, not only that the original prosecution should have been terminated, but also that it should (except in ex parte cases) have terminated favorably to the original defendant. This decision practically dispenses with the latter requirement in cases where the original complainant has by fraud prevented the accused from making a successful defence. Unless the general rule is to be completely abolished, is not the expediency of this exception open to doubt? The original judgment ought to be vacated for fraud, and in at least one jurisdiction that would probably be done {Buzzell v. State, 59 N. H. 61). But so long as it stands unreversed, is it desirable to allow an action for maliciously procuring it? In Severance v. yudkins, 73 Me. 376, it was held that judgment upon a verdict of guilty, though procured by the per- jured testimony of the complainant, effectually bars an action for mali- cious prosecution. What difference is there between the complainant's testifying falsely against the accused, and his fraudulently inducing the accused to testify falsely against himself? What difference is there be- tween wrongfully procuring a verdict of guilty, and wrongfully inducing a plea of guilty? Is not the judgment procured by fraud in the one case as well as in the other? Or if there be a distinction between the two cases, is there not more reason for denying an action to one who has himself confessed his guilt, than to one who has been convicted of guilt upon the testimony of others? It is believed that the denial of remedy in cases like Severance v. 'yudkins is not properly based upon the theory that the judgment operates as a technical estoppel, nor is it based solely upon the protection which the law affords to witnesses, but rather upon the general public policy of discouraging actions for malicious prosecu- tions. It has been said that where a conviction in a court of the first instance, subsequently reversed in a higher court, was procured by the fraud of the complainant, he could not avail himself of the convictien as evidence of probable cause, or as a bar to an action. See cases in Cooley, Torts, 2d ed., 214, n. 3, and Burt v. Place 4 Wendell, 591. But it will be noted that in these cases the prosecution had finally termi- nated favorably to the accused. They do not go so far as to hold that the original defendant could have maintained an action if he had not ap- pealed, or if his conviction had not been reversed in the higher court.
