JUDGES: Currey, C. J. Mr. Justice Sanderson expressed no opinion.
OPINION
CURREY, Judge
By the Court, Currey, C. J., on petition for rehearing:
In the petition for a rehearing, the appellants' counsel takes the ground that the report of the referee finding that when Moore commenced his action against Grant and issued the attachment in that suit, there was due from the latter to the former three hundred and thirty-nine dollars and eight cents, was not a finding authorized by the terms of the stipulation. And in support of this, it is said that by the stipulation, dated May 6th, 1864, the parties agreed what the referee should pass upon, and that he was to go on and settle all matters in which they were mutually interested; and the parties agree that the duty of the referee consisted in finding the actual state of the accounts at the time the stipulation was made, and not the state of the accounts at the commencement of the action of Moore against Grant. Be it so; and it then appears that the finding of the state of the accounts between the parties at the date of the stipulation involved an investigation of their condition when the suit of Moore against Grant was commenced. The report of the referee stated in detail the condition of the accounts between the parties to the suit before him, and showed that Grant was indebted to Moore over three hundred dollars when the attachment was issued. The condition of the account at that time was a matter involved in the investigation, and was not open to contradictions on the trial of the suit of Grant against the Moores. If the position of the appellant's counsel, that the referee had nothing to do in determining the issues joined between the parties in the action of Moore against Grant was assumed to be correct, then it would follow as a matter of law that the subject-matter of that action has never been determined, and consequently that the action of Grant against the Moores could not be maintained. Before an action for malicious prosecution can be maintained, it must appear that the action alleged to have been prosecuted maliciously and without probable cause was determined in favor of the party injured by it. ( Gorton v. De Angelis, 6 Wend. 420; Vanderbilt v. Mathis, 5 Duer, 307; McCormick v. Sisson, 7 Cow. 715.)
The stipulation entered into on the 6th of May, 1864, was in effect that the referee should decide all matters in evidence in relation to the accounts between the parties without reference to the pleadings as they then stood, and that the pleadings should be considered as amended so as to cover the whole case, and that judgment should be entered in conformity to the finding of the referee as to the then true state of the accounts between the parties. The issues joined in the case of Moore against Grant had been referred when the parties entered into this stipulation, and by the stipulation, matters which were not embraced in that issue were submitted for the decision of the referee. The subject-matter of the controversy between the parties was thus enlarged, and to that degree changed, and the judgment reported by the referee was different from what it necessarily could have been had the investigation been confined to the matters originally in issue, assuming that the referee found the facts truly. We are inclined to the opinion that the stipulation so changed the issues between the parties as to render the submission to the referee to ascertain what was the true state of the accounts between them at that time and to report a judgment accordingly, an arbitration of and concerning all matters in difference respecting the accounts between the parties up to that date.
The petition for a rehearing must be denied, and it is so ordered.
Mr. Justice Sanderson expressed no opinion.