delivered the opinion of the Court:
The single question before us is whether the criminal prosecution which is the basis of this action was terminated when the present suit was commenced. No warrant was issued on the second information. Plaintiff had been brought into court on the warrant issued in the case originally, and, upon being released for further appearance and notified of the filing of the second information, no warrant was subsequently necessary to insure his appearance unless he violated the terms of his release. The new information was filed to correct defects in the original information, which was quashed on motion of plaintiff. It was therefore a continuation of the original complaint. Plaintiff was fully advised of the existence of the new information, and that it was still pending. Besides, it does not appear that any effort was made by plaintiff to have the court dispose of the second information.
In Schippel v. Norton, 38 Kan. 567, 16 Pac. 804, where a criminal prosecution had been commenced before a justice of the peace, and dismissed to bring it in the district court, and on the same day it was so commenced, it was held that an action for malicious prosecution, based on the suit in the justice court, which was brought while the action in the "district court was still pending, could not be sustained.
The fact that in one information plaintiff was charged with violating the police regulations, and in the other with violating i..c miilding regulations, is not important. -The same facts *527furnished the basis for each complaint, and each was dependent upon the same proof. In the case of Gaiser v. Hurleman, 74 Ohio St. 271, 113 Am. St. Rep. 953, 78 N. E. 372, Gaiser filed an affidavit charging Hurleman and others with the crime of blackmail. The justice bound the defendants over to the court of common pleas, where at the next term the grand jury indicted them for assault with intent to commit robbery. Hurleman commenced an action against Gaiser for malicious prosecution on account of the action before the justice, while the indictment against him and the others was still pending. The court, holding that the indictment was a continuation of the criminal prosecution started before the justice of the peace, said: “The two indictments had a common root. Gaiser, on appearance before the grand jury, furnished the facts from which both indictments sprang. The dual form of the charge was at the instance, no doubt, of the counsel for the State. Again, had the indictment for assault with intent to rob been prosecuted to the conviction of Hurleman, he would have been convicted for the transaction of January 2, 1901, for the occurrences of that day would have been marshaled to secure such conviction.”
It must be remembered that at all times the prosecution of plaintiff was under the supervision of the corporation counsel of the District, and, where a prosecutor with reasonable diligence follows up the dismissal of a defective indictment or information with a new one, his action negatives an intention on his part to discontinue the prosecution, and the new indictment or information will be considered as merely a continuance of the prosecution. Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 666; Newell, Malicious Prosecution, 331; Marbourg v. Smith, 11 Kan. 554.
It is settled law that before an action for damages for malicious prosecution can be sustained, it must appear that the criminal prosecution which is the basis of the action in tort has terminated. It is incumbent upon the plaintiff in the civil action to allege and affirmatively prove a discharge and termination of the criminal proceeding, and, if it appears that the *528criminal- prosecution has not been finally terminated, it will furnish sufficient ground for the abatement of the civil action. Newell, Malicious Prosecution, 358.
Many of the cases cited by counsel for plaintiff are not in point. In those cases, the original indictment or information had been withdrawn, quashed, or dismissed; and it was contended that the mere possibility of a new indictment or information being filed constituted a bar to an action for damages for malicious prosecution growing out of the original prosecution. We arc in accord with those cases, and it may well be that unreasonable delay in filing a new indictment or information would justify the injured party in assuming that the prosecution had been abandoned, and estop a defendant from invoking it as a defense to an action for damages based on the original case. “If a criminal prosecution has been dismissed, with no intention of commencing it again, or if delay has been made in commencing the criminal prosecution again, so as to lead the plaintiff to believe that the criminal prosecution had been finally terminated, and if he had then, and at once, commenced his action for malicious prosecution, he might probably maintain the same. But in all reason he should not be allowed to maintain such an action when substantially the same criminal prosecution as the one. upon which he founds his action is still in the courts undisposed of.” Newell, Malicious Prosecution, 331.
Courts will move with great caution in a case of this sort, since public policy demands that every citizen be alert to prevent infractions of the law, and, where the law has been broken, to use his best efforts to bring the guilty to account. “Suits by which the complainant in a criminal prosecution is made liable to an action for damages, at the suit of the person complained of, are not to be favored in .law, as. they have a tendency to deter men who know of breaches of the law from prosecuting offenders, thereby endangering the order and peace of the community.” Newell, Malicious Prosecution, 21. On the other hand, it should not be so restricted as to suffer malicious and causeless prosecutions to escape its grasp. Stone v. Crocker *52924 Pick. 81. It would be difficult, however, to imagine a more serious miscarriage of justice than to permit a suit for malicious prosecution to proceed to a successful termination while the criminal prosecution upon which it was based was still pending, with the possibility of a conviction, or the much greater probability of the clear establishment of probable cause to justify the original complaint.
The judgment is affirmed, with costs. Affirmed.