
    * Commonwealth versus James M’Culloch.
    Whether three acts of barratry constitute the perpetrator of them a common barrator, qumre.
    
    Where one purchased three promissory notes made by the same person, and left them with an attorney to collect the money due upon them, and the attorney brought three several actions thereon before a justice of the peace, when they might have been joined in one action if brought to the Court of Common Pleas; and the creditor afterwards took the executions, and caused them to be levied under circumstances indicating a disposition to oppress the debtor, and received the money thereon, —this was holden not 10 constitute him a common barrator.
    
      The defendant was indicted, at the last May term of this Court, at Greenfield, in the county of Franklin, as a common barrator.
    On the trial before Putnam, J.,. it appeared that one Ross was indebted to one Carpenter on three several promissory notes, two of them being for 15 dollars each, and the third for 9 dollars 50 cents; which were given in so small sums that Ross might be sued upon them before a justice of the peace, if he neglected to make payment when Carpenter should require it. The defendant purchased these notes of Carpenter, paying the amount in cash; and there was some evidence tending to show that his motive, in making the purchase, was unfriendly to Ross. Soon after he was possessed of the notes, he caused them to be placed in the hands of an attorney, that they might be put in suit. Three actions were accordingly commenced by the defendant, in the name of Carpenter, on the three notes, respectively, before a justice of the peace, and judgment rendered in each action by the default of Ross. It did not appear that the defendant gave any instructions to his attorney whether the notes should be thus sued in three actions before a justice, or in one action at the Court of Common Pleas. There were some circumstances which indicated a disposition, on the part of the defendant, to oppress Ross, in the collection of the money upon the executions.
    The judge instructed the jury that three acts of barratry must be proved, to constitute the crime of which the defendant was accused; that if he bought the notes merely with a view to the property, it was an innocent transaction; and if he had bought them with a view to harass and oppress, and had sued one action only, that the transaction would amount to one act of barratry. And the judge left it to the jury to consider and determine whether the defendant purchased these notes innocently ; and if they should be of that opinion, they were to acquit him; but if * they should be of opinion that he bought them with a view to oppress the debtor, then the jury were to determine whether the defendant had stirred up and prosecuted three suits upon them ; and if they were of that opinion, from the evidence, they must convict him.
    The judge further observed to the jury, that a subsequent assent was equivalent to a previous command ; and he called their attention to the circumstance that no evidence was offered that the defendant disavowed those suits, or manifested any disapprobation that three were commenced instead of one ; observing to them, also, that they should take into consideration the knowledge the defendant had that there were three suits, and his directions concerning the levying of the executions, and his receiving the debts of the executions, as facts in the case tending to prove that his attorney had conducted the business as he desired.
    The jury having returned a verdict against the defendant, the judge continued the indictment for judgment; and if, in the opinion of the whole Court, the directions to the jury were wrong, or if the evidence was insufficient to support the indictment, the verdict was to be set aside, and a new trial had, or the defendant to be discharged, as the Court should think proper.
    
      Bliss and Alvord, for the deféndant.
    Here were not three acts of barratry ; and if there had been, it is not a necessary inference that the defendant is therefore a common barrator. No particular number of acts constitute the offence ; but it is the province of the jury to determine whether, upon the whole evidence before them, the party charged is within the legal definition or description of a common barrator. The common description of such an offender is, that he is a common mover of suits and quarrels, either in courts or elsewhere in the country ; that is himself never quiet, but at variance with one or another. The crime must be continued, frequent, perpetual, &c. He must be a common disturber of the peace of neighborhoods. 
    
    *The case, in fact, shows no act of barratry. The disposition to oppress cannot make the crime, unless followed by a sufficient number of actions, or a course of conduct to bring the party within the legal description. The bringing of three actions, instead of one, was not even oppressive; since the costs of the three were less than those of one would have been, if commenced in the Common Pleas. If it were otherwise, it did not appear that the defendant gave directions to that effect; and it is going too far to make his mere recognition of the act of his attorney equivalent, in a criminal prosecution, to a precedent direction or command.
    
      Morton, (Attorney-General,) for the commonwealth.
    There are two species of this offence, — as it may be committed by stirring up quarrels in the country, or in promoting vexatious suits in court. The authorities cited by the counsel for the defendant relate to the former kind; whereas the evidence proves the defendant guilty of the latter species. The jury have found that he purchased these notes with a design to oppress Boss, and the case finds three distinct suits prosecuted under that design. This is sufficient to constitute the defendant a common barrator.
    
      
      4 Black. Comm. 134. — Gilb. L. of Ev. 653. — 1 Lord Rayan. 146. — 1 Mod. Rep 286. — 8 Co. 36, 72.
    
   Per Curiam.

Without deciding at this time that three acts of barratry, absolutely and in all cases, constitute the perpetrator of them a common barrator, — on which point the books seem less explicit than we had thought, — we think the evidence reported does not show that three such acts have been committed by the defendant. The evidence shows, without question, an indictable offence; but legal distinctions must be maintained. The commencing of three suits, where one would have served every justifiable purpose, might have been evidence of three acts of barratry, had he given particular directions therefor, with a malicious design to harass and oppress the debtor. But there was not evidence of this. He directed the notes to be sued, probably leaving the manner of suing to the discretion of his attorney ; and it seems to be understood, that the mode * adopted by the attorney in this case is conformed to common practice in this part of the commonwealth. There being, then, no evidence of his direction, from which an inference might be drawn of an intention to oppress, (and without that intention there is no barratry,) we cannot say that the indictment is supported. In collecting his money on the executions, there was evidence of a malicious disposition ; but his enforcing payment on the executions cannot be carried so far as to become evidence of his previous direction, or even assent, as to the commencement of the suits. No creditor, in such a case, could be held to neglect the collection of his just demands, let him disapprove ever so strongly the conduct of his attorney in conducting the suits for their recovery. The defendant is discharged of the indictment. 
      
      
         Qucere, whether, in such case, it ought not to be proved that the suits were false, feigned, or groundless ? It has been holden, that a man shall not be adjudged a barrator in respect of any number of false actions brought by him in his own right > but this is doubted in case such actions be merely groundless and vexatious, and without any manner of color, and brought only with a design to oppress the defendant.— 2 Russell, 185,2d ed.
     