
    Morris against Corson.
    NEW YORK,
    May, 1827.
    In an action for a tort, (e. g. malicious pros~ ecution,) cornmenced. in the 0. P. the plain tiff died the day before the trial, but after the first day of term. The court, notwithstanding, proceed."! to trial at the same term; and a verdict was found, and judgment rendered for the plaintiff, without regard to his death; though the proceeding was objected to; held, no error, but cured by the statute, (1 R. L. 144, s. 5,) the proceedings relating to the first day of term ; and, in contemplation of law, having taken place on that day.
    The statute, (1 R. L. 144, s. 5,) applies as well to actions for causes which do not survive, as those which do.
    To sustain an action for malicious prosecution, the plaintiff must, in general, prove a want of probable cause.
    But where the defendant pleaded singly the truth of the facts involved in the prosecution, which was for felony; held, that this was assuming to prove the truth on his own side; and that the plaintiff need not, on the trial, in the first instance, show the want of probable cause.
    
      On error to the 0. P. of the city and county of New York.
    Corson declared against Morris, in that court, in ease; *for that the latter maliciously, and without probable cause, preferred a complaint against the former for felony, whereon he was arrested. That a bill of indictment was exhibited to the grand jury, who returned it not a true bill. That thereupon the plaintiff was acquitted, and the prosecution ended. Plea: that the charges made against the plaintiff, of his having committed felony, were true. Replication : de injur a sua propria, &c.
    Where a defendant pleads specially, every traversable fact contained in the declaration, and not denied by the plea, is admitted of record, and needs no proof to support it.
    At the trial, the plaintiff gave in evidence the indictment, with the return of the grand jury j and rested bis cause.
    It was admitted, that the plaintiff had died the day before the trial, but since the first day of the term; and the defendant contended, that the action abated. The objection was overruled.
    The defendant then moved for a nonsuit, on the ground that the plaintiff had not shown a want of probable cause for the criminal prosecution. The motion was overruled, on the ground that the proof was not necessary upon the state of the pleadings. The defendant excepted.
    Verdict and judgment for the plaintiff below.
    
      J. D. Hammond, for the plaintiff in error.
    The suit abated by the death of the plaintiff below. (Cro. Car. 509. 3 Mass. Rep. 296.) The statute, (1 R. L 312,) does not apply. That relates to cases where the cause of action survives, and there has been an interlocutory judgment. (4 Taunt. 884.) The fiction that the whole term is but one day, applies to those cases only that are within the statute. (Id.)
    It will not be denied, that, in general, want of probable cause must be shown, to sustain this action. The plea here does not admit, but expressly denies the want of probable cause. It will be regarded after verdict, as an informal plea of the general issue. It is in substance nothing more.
    
      
      D. B. Tallmadge, contra.
    The statute, (1 R. L. 144,) is, that the death of either party in any action, between verdict and judgment, shall not be alleged for error, if the judgment be entered in two terms after the verdict. This statute *is copied from 17 Car. 2, c. 8, s. 1; the construction of which has always been, that if the party die after the assizes begin, though the trial be after his death, it is within the remedy of the statute; for the assizes is but one day in law; and this is a "remedial statute, and shall be construed favorably. (1 Salk. 8, pl. 21. 7 T. R. 31, 32, note.(a) Dunl. Pr. 747, note 20. 2 Archb. Pr. 78, .) The term is, in law, considered as but one day. (2 Cruis. Dig. 57, s. 22, citing 6 Mod. 191. Jac. L. Dict. Terms.)
    True, the plaintiff must, in general, show want of probable cause. But this was never intended of a case where it is admitted by the pleadings. That it is so admitted by the frame of this plea, there cannot be a question. (Steph. on Pl. 234; Summary of Pl. 59; 1 Phil. Ev. 131, 147; Bull. N. P. 298; 2 Esp. Dig. Gould’s ed. 504, 505; Com. Dig. Pleader, (s. 17, 18); Peak. Ev. 7, Norris, ed. id. 466; 1 Stark, on Ev. 295, 388; 2 id. 345.)
   Curia, per Woodworth, J.

Without inquring whether the fact, that the plaintiff below died before verdict, is regularly before us, on the bill of exceptions, I am satisfied it cannot be alleged" for error. This question is disposed of by the act, (1 R. L. 144, sec. 5.) “ The death of either party between verdict and judgment in any action, shall not be alleged for error.” At the common law, it was otherwise; the remedy is not confined to cases where the cause of action survives, but is general. It therefore applies to the present case. I am not aware of any authority that has given a construction to the statute restricting the operation of its general terms. (1 T. R. 31, 2, note(a.)) •

Where an interlocutory judgment only, has been obtained, there the statute remedy is different. In such cases the action does not abate, if it might originally be prosecuted by the executor or administrator of the plaintiff. (1 R. L. 312.) Under this provision, the present action would abate; but it is not governed by it. • It is ^protected by a statute applicable only to the case of verdicts. The ju¿g6 fie]ow decided correctly.

There is no doubt that, to sustain an action for a malicious prosecution, it is incumbent on the plaintiff to prove the want of probable cause. It is equally clear, however that it is immaterial whether the fact be established by proof derived from witnesses, or admitted by the pleadings; it is the same thing. The only issue joined in this cause was upon the plea .of justification; and consequently no evidence was admissible, which did not tend to establish the truth or falsity of that plea. Every traversable allegation in the declaration, not denied by the plea, was admitted on record and required no proof. (Phil. Ev. ch. 7, sec. 8, 126, 141; 1 Starkie, 295, 888.) Apply these rules to the case under consideration. The charge, stript of legal form, is this: that the defendant had, without probable cause, prosecuted the plaintiff for a felony. Here are two allegations. If there was probable cause, or if the defendant could prove the plaintiff guilty, his justification would be complete. Both allegations are material. Had the defendant pleaded the general issue, the plaintiff was bound to show want of probable cause. If the defendant omitted that plea, and preferred taking on himself to prove probable cause, he might do so by pleading the facts. He might have taken that course if he had so elected. The plea would be good; because, had he shown probable cause, there would be an end of the action. It was not necessary, however, to plead in that manner; because the defendant might avail himself of that defense under the general issue; with this advantage; that if the plaintiff failed to make out the want of probable cause in the first instance, the defendant would not be required to offer any proof. The defendant has waived any answer to the allegation of want of probable cause, and put his defense solely on the ground that the plaintiff was guilty of the felony. According to the established rules of pleading, every traversable fact, in the declaration, not answered by the plea, was admitted. If the defendant could verify his plea, he must prevail; if he could not prove the plaintiff ^guilty, he had no further defense. He could not resort to the want of probable cause, for he had not put that in issue; and by not putting that in issue, he admitted it. There was, therefore, no error in the decision of the j udge. The j udgment of the court below must be affirmed..

Judgment affirmed.  