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, *347secs. 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,