George

An action cannot be maintained for the malicious institution of a civil suit in which no arrest, replevin, injunction, or attachment was issued. (Bay v. Law, 1 Peters C. C. It. 210; Potts v. Imlay, 1 South. E. 331; Samll v. Boherts, Salk. 15; Parlcer v. Langley, Sel. Cases, 161; and Allgor v. Stilwell, 1 Halst. N. J. 166.)

James C. Smith signed and swore to the petition filed in the Probate Court, under which last mentioned decree was made. This fully committed him to and bound him by the adjudication made in that proceeding. (Putnam v. Day, 22 Wall. 60, 64 .) The decree of the Probate Court adjudged that Smith should pay “ all expenses attending the application of said petition, and the hearing thereon, and all expenses attending the making and execution of said deed.” Smith was bound by this decree. It was an adjudication of his rights under the agreement of January 15th, 1866. No appeal was taken, and that decree is a finality, unreversible and unattackable in this suit. The rights of Smith to a deed from the executors of Dooley depended upon that decree ; by it, through it, and under it, he was to have the conveyance. How was Smith entitled to his deed before he had *344…