malicious, and without probable cause, and the party had been injured or damaged thereby: See 68 Mich. 596-598, and cases there cited. I am still of the opinion there expressed, and have been fortified in my position by the facts of this case, and the decisions of other courts not cited in Brand v. Hinchman, 68 Mich. 590: McPherson v. Runyon, 41 Minn. 524; 16 Am. St. Rep. 727; Pope v. Pollock, 46 Ohio St. 367; 15 Am. St. Rep. 608; Allen v. Codman, 139 Mass. 136. See also discussion of this question by J. D. Lawson in 21 Am. Law Reg. 281, 353.

It is true that the general rule is, that to support an action for malicious prosecution the plaintiff must establish three things: 1. The fact of the alleged prosecution, and that it has come to a legal termination in the plaintiff's favor; 2. That the defendant had not probable cause; 3. That he acted from malicious motives: Hamilton v. Smith, 39 Mich. 222, 225.

In the case before us, the defendants had no probable cause against Antcliff. It was conclusively shown that June never had any claim against Antcliff, except one for fifty dollars for getting him a wife, and never pretended to have any other; and from Crowell's own testimony it is apparent that he knew this. He testified that June told him of some other items of account, but he cannot remember any except the one of fifty dollars. The judgment was taken for three hundred dollars. Witness swore that June told him he did this because Crowell told him he might just as well get a judgment for three hundred dollars as for fifty dollars. Crowell does not deny this in his testimony. The taking and collecting of a judgment for three hundred dollars, under these circumstances, shows malice.

But the defense urge that the other element is wanting; that the proceeding or suit did not terminate in plaintiff's (Antcliff's) favor. In this case, however, the judgment was void upon the face of the justice's docket and files. The summons was not issued under Howell's Statutes, sec. 7317. It was directed to any constable of Jackson County, and could not be served by an officer of Washtenaw County, the same as in any ordinary suit. The making of the affidavit upon the return day of the summons, and the judgment entry attempting to bring the case within section 7317, were futile. When a suit is commenced under this section, and the defendant is not a resident of the county where suit is brought, and it is intended to gain jurisdiction by service in the adjoining county, the process must be issued directed to an officer of

that county. He has no power to serve process directed to a constable of another county, unless specially authorized so to do by law. It was not intended by the legislature that an or dinary justice's summons, directed to any constable of the county within which the justice has jurisdiction, could be taken by the plaintiff, and handed to a constable or sheriff of another county for service, without some showing upon the writ that the suit was intended to be brought under section 7317. The act, if valid, is a special one, and applies only to special cases. The whole thing was a fraud from the beginning. The labor and services spoken of were not a valid claim if performed, as it would be against public policy to allow marriage brokerage.

But it is not necessary to determine whether the first count was a good one, in an action for malicious prosecution. It sets out fully a conspiracy between the defendants, June and Crowell, to defraud the plaintiff, and that he was defrauded out of the money paid upon this void judgment. It therefore clearly sets out an actionable wrong, one that can be recovered for in an action upon the case, - and it is immaterial what it is called.

The second count is also good. If process is willfully made use of for a purpose not justified by the law, this is an abuse for which an action will lie: See Cooley on Torts, and cases cited, 189, 190. I can conceive of no case of any greater abuse of process than this. There was nothing to base it upon in the beginning, and it was procured, in every stage of the proceeding thereafter, by fraud and perjury, which ought to be punished by a term in state prison to both of the defendants. It was used for no lawful or legitimate purpose. If "entering up a judgment and suing out execution after the demand is satisfied" is an abuse of process (Barnett v. Reed, 51 Pa. St. 190; 88 Am. Dec. 574), then, certainly, obtaining a judgment by fraud and perjury, when there was never any demand in favor of June against Antcliff, and suing out an execution upon such judgment, when the defendants knew that it was false and fraudulent, and extorting money under such execution, is also an abuse of process.

The learned judge of the Jackson circuit was in error in directing a verdict for the defendants. The judgment of the court below is reversed, and a new trial granted the plaintiff, with costs of this court.

AM. ST. REP., VOL XXL.—85

MALICIOUS PROSECUTION. — An action for damages may be maintained for the malicious prosecution of a civil suit without probable cause, to the injury of defendant therein, even though there was no interference with his person or property: McPherson v. Runyon, 41 Minn. 524; 16 Am. St. Rep. 727. Upon the question of the malicious prosecution of a civil sait, see note to Williams v. Hunter, 14 Am. Dec. 599–603; McCardle v. McGinley, 86 Ind. 538; 44 Am. Rep. 343, and note 346–348; note to Burton v. Knapp, 81 Am. Dec. 476480; Vela v. Guerra, 75 Tex. 595.

MALICIOUS PROSECUTION. - Three things must be shown to maintain an action for malicious prosecution; the want of probable cause, the existence of malice, and that the prosecution is ended when the action is commenced: Stoddard v. Roland, 31 S. C. 342; Livingstone v. Hardie, 41 La. Ann. 311. "Malice means wickedness of purpose, or a spiteful or malevolent design against another, or a purpose to injure another, or a design of doing mischief, or any evil design, or an inclination to do a bad thing, or a reckless disregard of the rights of others, or an intent to do an injury to another, or absence of legal excuse, or any other motive than that of bringing a party to justice": Shannon v. Jones, 76 Tex. 141. "Probable cause means a reasonable ground of suspicion, supported by facts and circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged ": Shannon v. Jones, 76 Tex. 141; Anderson v. How, 116 N. Y. 336. The question of malice is one of fact, and the existence of probable cause is a question both of law and fact: Shannon v. Jones, 76 Tex. 141. Where there is no dispute as to the existence of the facts, probable cause is to be determined by the court alone: Anderson v. How, 116 N. Y. 336; Gilbertson v. Fuller, 40 Minn. 413.

MALICIOUS PROSECUTION PROPER FORM OF ACTION. -Action on the case is the proper remedy against a person sought to be charged with liability for a malicious prosecution: Stone v. Stevens, 12 Conn. 219; 30 Am. Dec. 611, and note. But see Kramer v. Lott, 50 Pa. St. 495; 88 Am. Dec. 556, and note.

SHIPLEY V. COLCLOUGH.

(81 MICHIGAN, 624.]

NEGLIGENCE-LIABILITY FOR DAMAGE DONE BY CATTLE UNLAWFULLY IN HIGHWAY. One who turns his cattle loose into a highway, leaving them unattended, in violation of a statute, assumes all the risks of such action, and is liable for damage done by them in overturning a sulky lawfully in the highway.

Brooks and Conway, for the appellant.

Herbert A. Forrest, for the respondent.

CAHILL, J. In December, 1888, the defendant, Colclough, was the owner of land lying on both sides of a public highway in Buena Vista township, Saginaw County. He was accustomed, at that time, to drive his cattle every morning from his field on the south side of this highway, and in a westerly

direction, about forty-five rods along the highway, and into his field on the opposite side of the road. This highway was very little traveled, but crossing it at nearly right angles, and not far from this place, was the Genesee plank-road, a great thoroughfare. Plaintiff's son, Colon Shipley, was in the habit of driving plaintiff's cattle along this highway every morning, to a field east of Colclough's land. In doing this, he drove a horse hitched to a sulky.

Plaintiff's claim is, that Colon, returning one morning from this task, and riding in the sulky, was met by two of Colclough's cows on this road opposite Colclough's land; that one of the cows booked and pushed the other against and down under the wheel of the sulky, and that the cow, in rising up, overturned the sulky, and it was thus broken, and otherwise injured. He further claims that the cows were at the time running at large by reason of defendant's carelessness and negligence in turning them into the road, and in going off and leaving them unattended. It was admitted that the statute prohibiting cattle running at large in the highway was in force there at that time. Plaintiff sues for damages thus done to the sulky.

Colclough defended on two grounds, claiming,—1. That the cattle were not at large; 2. That even if they were at large, plaintiff could not recover, because the circumstances did not constitute actionable negligence, and because it was not shown that the cows had any vicious or dangerous habit or propensity which should have led defendant to anticipate and guard against such injury.

And the defendant took the position that the fact of the cows being at large in the public highway did not change this rule. This raises the only question in the case. The judge charged the jury as follows:

"By the statutes of our state, cattle are not allowed to run at large, unless there is permission granted by the board of supervisors in certain cases. For the purpose of this case, I might say to the jury that cattle of the character described by the witnesses here are not allowed to run at large in the highway in the township of Buena Vista, this county. Where cattle are in the highway, and are attended by the owner, or some person in his behalf, being driven along the highway, they are not considered as running at large. It would be entirely proper for the owner of cattle driving them from one inclosure, or one field, across the highway, or up and down

the highway, to enter another field for purpose of pasture; and if he did so, he is not doing an unlawful act.

"In this case, if you find as a matter of fact that Mr. Colclough, the defendant, drove his cattle from the field upon his farm, into the highway, for the purpose of having them enter another field on the opposite side of the highway, where he had a pasture, the question then for you to consider would be, whether in doing that act he exercised reasonable care in taking the cattle from one field to the other; that is, so that they would not go astray, and be in fact at large. In determining that question you will consider the number of cattle that he had in charge that morning (if you find that he was in charge of the cattle), the character of the cattle, and the time when they were driven into the road by him, the time in the morning, the extent of the travel in the cross-road, in determining the question of reasonable care on his part."

This instruction was as favorable to defendant as he was entitled. In turning a herd of cattle loose into the highway, and going away and leaving them unattended by any one, defendant violated a statute of the state, and he assumed all the risks of such action. The authorities are almost uniform that "the violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur": 1 Shearman and Redfield on Negligence, sec. 13.

"These principles apply not only where the statute or ordinance declares that persons violating it shall be liable for any damage sustained by reason of its breach, but also where it contains no such provisions, and simply imposes a penalty, by way of fine or otherwise, for disobedience. Nor is the plaintiff, in such a case, bound to prove that the act required by the law was one which by its nature was essential to the exercise of due care by the defendant": 1 Shearman and Redfield on Negligence, sec. 13.

In the case of Holden v. Shattuck, 34 Vt. 336, 80 Am. Dec. 684, upon which counsel for defendant rely, the court clearly intimated that if the horse had been unlawfully in the highway the conclusion of the court would have been different; but in that case it was held that the horse was not unlawfully in the highway. The court uses this language: "The whole trial, including the charge of the court, proceeded upon the