1. If a criminal process is sued out without probable cause, and an arrest is made under it, the remedy of the accused depends on whether or not he is actually prosecuted under the warrant. If after' the arrest the warrant is dismissed or not followed up, the remedy is for malicious arrest. But if the action is carried on to a1 prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie. Grist v. White, 14 Ga. App. 147 (80 S. E. 519). Therefore, where a petition was brought in two counts, one for malicious prosecution and the other for malicious arrest, alnd it affirmatively appeared from the allegation of the petition that the plaintiff had actually been prosecuted under the criminal process sued out by the defendant, the action for malicious arrest was not maintainable, and the court did not err in striking it on demurrer.
2. Where an action is brought for malicious prosecution under the Code, § 105-801, which provides that “a1 criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action,” and it appears from the evidence that the defendant made an affidavit on which a warrant was issued, charging the plaintiff with a violation of § 13-9933, in that he did give to the defendant a check on a named bank, knowing that at the time he did not have sufficient funds in or credit with such ba!nk (upon which charge the plaintiff was acquitted), and it further appeared from the evidence that before the time the plaintiff gave to the defendant the check in question the defendant, a wholesale dealer in gasoline and oil, had sold to the plaintiff his products for which plaintiff had given his cheeks, many of them being returned by the bank for insufficient funds, and the plaintiff testified that upon each occasion where a check was returned it had been the understanding between him and the defendant in these transactions that the plaintiff did not have the money in the bank sufficient to cover the checks, and that they were to be paid as soon as he obtained the money and could deposit it, and further testified that at the time he gave the check in question he told the defendant that he did not have sufficient funds in the bank to cover it, and there were other facts and circumstances which would have authorized the jury to find that the defendant did actually extend credit to the plaintiff at the time the check was given, and that it amounted to no more than a promise to pay in the future, which facts if true would not authorize a conviction under the above section, the court committed error in granting a) nonsuit. The gravamen of the offense charged against the plaintiff by the defendant was an intent to defraud (Neidlinger v. State, 17 Ga. App. 811, 88 S. *221E. 687), which is not shown where there is an extension of credit at the time the check is given; and the question whether or not the criminal process was instituted without probable cause and with malice, under facts authorizing conflicting inferences, should have been submitted to the jury under proper instructions from the court. Hearn v. Batchelor, 47 Ga. App. 213 (170 S. E. 203).
Decided May 13, 1937. Rehearing denied July 16, 1937. N. F. Culpepper, C. C. Thompson, for plaintiff. J. F. Hatchett, Beclc, Goodrich <& Beclc, for defendants.Judgment reversed.
Broyles, O. J., and MacIntyre, J., concur.