been committed, and that there was probable cause to believe the defendant guilty thereof, is prima facie evidence of probable cause for the prosecution. Miller v. Chicago etc. Ry. Co., 41 Fed. 898; Ambs v. Railway Co., 114 Fed. 317.

There is no proof that the proceedings begun before the committing magistrate were ever terminated in favor of plaintiff, or were ever terminated at all. This fact must be proven. Stewart v. Sonneborn, 98 U. S. 195, 25 L. Ed. 116.

Even if it can be said that the fact that the grand jury ignored and dismissed the charge against the plaintiff, then we contend that there exist two prima facie cases, and the one neutralizes the other, and the plaintiff, to sustain her case, was required to produce other evidence of malice and want of probable cause for instituting the prosecution against her, as alleged in the complaint. Miller v. Chicago etc. Ry. Co., 41 Fed. 898.

KENT, C. J.-This is an action for damages for malicious prosecution. The complaint alleges, in substance, that the defendants maliciously and without probable cause lodged a complaint with a justice of the peace charging the plaintiff with a felony, in the larceny of certain articles; that a warrant was issued thereunder, and plaintiff was arrested, arraigned on the charge, and held by the justice to await the action of the grand jury; that the grand jury refused and declined to present an indictment, and dismissed the charge, and the prosecution was thereby terminated; and further alleges general and specific damages. The answer of the defendants Wildman and Roberts specially denies any connection with the charge, and contains a general denial of all the allegations of the complaint. The answer of the remaining defendants admits the residence of the parties and the copartnership of the defendants, and denies specifically certain allegations of the complaint, and generally all allegations except those expressly admitted in the answer as above stated. Upon the trial the plaintiff gave testimony which related to her arrest, the complaint lodged against her, and the action of the justice of the peace in binding her over to await the action of the grand jury. She testified that she did not steal the articles. She was asked if she knew what was the result before the grand jury, but the question was not answered;

the court sustaining an objection thereto. No evidence was given as to what, if any, action was taken by the grand jury. Counsel for the plaintiff then endeavored to prove by the plaintiff the damages suffered by her, but was stopped; the court holding that proof must first be offered of malice or want of probable cause for the arrest, before proof as to her damages would be received. To this ruling the plaintiff took an exception, and, no further evidence being offered, judg ment was entered for the defendants, and the plaintiff now appeals.

The principal question raised by the assignments of error is whether the trial court was right in holding that proof showing malice and the absence of probable cause for her arrest was necessary, to enable the plaintiff to sustain the action. While it is true that malice may be inferred from the facts which go to make the proof of want of probable cause, it is incumbent on the plaintiff in an action for malicious prosecution to show, at least prima facie, want of probable cause. Counsel for the appellant contends that the pleadings and evidence show that the grand jury dismissed the charge, and he claims that this is sufficient evidence of want of probable cause. This we do not need to determine, for the record does not bear out the contention of the appellant. It was directly put in issue by the averments of the complaint and the denials of the answers that the grand jury had dismissed the charge; but no proof of this was introduced by the plaintiff, or any other evidence given either of malice, or of want of probable cause from which malice might properly have been inferred. On the contrary, as the case stood when judgment was taken, not only was there no evidence of want of probable cause, but the showing of the existence of probable cause, established prima facie by the action of the committing magistrate, had in no way been controverted. There is nothing in the evidence to show what action the grand jury took, or that the proceedings begun before the committing magistrate were terminated in favor of the plaintiff, and, indeed, nothing to show that they were terminated at all, except that the plaintiff, in response to a question by her counsel after the question as to what action the grand jury had taken had been excluded, testified that no further steps in the prosecution had been taken against her. The

court below therefore rightly held that the plaintiff, to sustain her action, must give some proof of want of probable cause. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Miller v. Railway Co., (C. C.) 41 Fed. 898; Ambs v. Railway Co., (C. C.) 114 Fed. 317; Bekkeland v. Lyons, 96 Tex. 255, 72 S. W. 56, 64 L. R. A. 479; Frost v. Holland, 75 Me. 108; Figg v. Hanger, 4 Neb. (unofficial) 792, 96 N. W. 658; Jordan v. Chicago etc. R. Co., 105 Mo. App. 446, 79 S. W. 1155; Sharpe v. Johnston, 59 Mo. 557; Rounds v. Humes, 7 R. I. 535.

The appellant contends that the court should have permitted the plaintiff to put in her proof as to damages sustained, and then other witnesses could have been examined to prove want of probable cause and malice. An inspection of the record shows, however, that no such application was made to the court, or that counsel made any suggestion that the defect in the proof might be supplied later, or intended to make such proof. In any event, the order of proof was a matter within the discretion of the trial court, and such court might very properly refuse to go into the question of damages until the proof necessary to sustain such damages had been adduced.

The judgment of the district court is affirmed.

SLOAN, J., and DAVIS, J., concur.

[Civil No. 882. Filed March 30, 1905.]

[80 Pac. 317.]

UNITED STATES OF AMERICA, Plaintiff and Appellant, v. ALBERT J. GRISWOLD et al., Defendants and Appellees.

1. POSTMASTER-BOND-REGISTERED PACKAGE-THEFT OF LIABILITY FOR -NEGLIGENCE-IMMATERIAL.-Where the bond of a postmaster is conditioned that he will "faithfully discharge all the duties and trusts imposed upon him, either by the law or the rules and regulations of the post-office department of the United States," and section 1051 of Postal Laws and Regulations provides for the separate keeping and handling of registered matter, and makes the

postmaster "accountable for all registered matter coming into his office," there is an absolute liability placed upon the postmaster and his bondsmen, and where a registered package delivered to said postmaster is stolen, without negligence on his part, he is liable for the value thereof.

APPEAL from a judgment of the District Court of the First Judicial District. George R. Davis, Judge. Reversed.

Statement of facts:

The United States brought this action on the official bond of Albert J. Griswold as postmaster, to recover for the value of a registered package containing money intrusted to Griswold as postmaster, and thereafter stolen from him. The case was submitted to the jury by the court under instructions which left it to the jury to determine the question whether the loss by reason of the theft was occasioned by the postmaster's negligence in respect to the custody of the package. From a verdict in favor of the defendant the United States has appealed.

Frederick S. Nave, United States Attorney, and John H. Campbell, Assistant United States Attorney, for Appellant. Richardson & Lockwood, for Appellees.

KENT, C. J.-The question presented, determinative of this appeal, is whether a postmaster is liable under his bond for the loss of a registered package intrusted to him, irrespective of whether such loss was occasioned by his negligence. It appears from the evidence that a package containing money was duly registered in the ordinary way and delivered to the postmaster. The package was thereafter stolen under circumstances which the jury found, by their verdict, freed the postmaster from negligence. The United States claims on this appeal that the trial court erred in submitting to the jury the question whether or not the postmaster had exercised reasonable care in the custody of the package; the contention here being that, as a matter of law, the postmaster, whether negligent or not, is liable under his bond for the loss, and that the jury should have been instructed to return a verdict for the United States. It is conceded by the appellee, in the brief of counsel, that if such liability exists, as a matter

IX Ariz.-20

of law, there was "no discretion left to the jury, and that the court should have instructed a verdict for the United States." In the case of Smythe v. United States, 188 U. S. 156, 23 Sup. Ct. 279, 47 L. Ed. 425, the supreme court of the United States, in an action upon his official bond, has held that a superintendent of a mint was liable for the loss of public moneys in his hands, under the condition of his bond that he would "faithfully and diligently perform, execute and discharge all and singular the duties of said office, according to the laws of the United States," and "receive and safely keep until legally withdrawn, all moneys or bullion which shall be for the use or expense of the mint"; holding to the general rule, as announced by that court in previous decisions, that the obligations of a public officer who receives public moneys under a bond so conditioned are not to be determined by the principles of the law of bailment, but by the special contract evidenced by the bond, so conditioned, and that, though public policy might not require an accounting for moneys which had been destroyed by an overruling necessity or taken from him by a public enemy, yet it was no defense in an action on such bond that the money had been destroyed by fire occurring without his fault or negligence. It is claimed by the appellee that this doctrine, as so announced, extends only to public moneys in the custody of public officials, and is founded upon public policy in regard thereto, and that it should not be held to embrace moneys belonging to a private individual, intrusted to such official; and we are cited to the case of People v. Faulkner, 107 N. Y. 477, 14 N. E. 415, where the court of appeals of New York held that a surrogate, under a bond conditioned that he should "faithfully apply and perform all moneys or effects that may come into his hands as such surrogate in the execution of his office, without fraud, deceit or delay," was not liable for the loss of such funds by the failure of a bank where he had deposited them; but whatever the rule may be in New York, and whether or not that case may properly be distinguished from this, we feel that the rule established by the supreme court of the United States in the Smythe case is determinative of the question before us. In the present case the bond is conditioned that the postmaster will "faithfully discharge all the duties and trusts imposed upon him, either by the law or the rules and