
    Thaddeus Sterling against Aaron Adams and Hannah, his wife.
    If in an action of slander, the defendant art-raits the speaking of the words,but jgromd°*⅛⅛ they were true, he does . thereby admit probable cause, so [⅛,° '"from*10 showing the want of it in an action for a vexatious suit.
    A person may be liable for prosecuting, after he is of full age, a suit commenced by him maliciously, and without probable cause, while an infant.
    In an action for a vexatious suit, the plaintiff having stated, that in the original suit* he recovered his costs, alleged, that he rain most unjustly imfirisoned on said suit, for the space of twenty four hours, and in defending the same expended large sums oj mo-7ieyf to tvitt the sum of 200 dollars in employing counsel to defend; also the sum of -200 dollars in paying witnesses, and maintaining thorn when attending on the trial; also the sum of 100 dollars in making various journeys to procure testimony, and in attending on the trial; without showing that such damages exceeded the costs recovered: Held* this was a sufficient allegation of damages.
    An allegation that words charged as slanderous were known to the party and to the public in general, to be true, is a sufficient allegation of their truth.
    WRIT of error.
    This was an action brought by Sterling, against Adams . .. . and his wife, on the statute for preventing and punishing vexatious lawsuits.
    
    The declaration alleged, that said Hannah., whilst sole, . and before her intermarriage with said Aaron, to wit, on the 23d of July, 1801, wittingly and willingly, with intent most unjustly to vex, arid injure the plaintiff, and without any just or legal foundation, instituted and pro» secuted, by the name of Hannah Morehouse, against the plaintiff, a certain action on the case, for slander. The process was by attachment. The plaintiff was described asa minor under the age of twenty-one years, suing by the advice and with the consent of her father and natural guardian. The words charged as slanderous were, in substance, that the plaintiff had the venereal disease, and had given it to the defendant’s son. This action was returned to the Fairfield county court, held, on the third Tuesday in November following. The general issue was pleaded, and the cause continued to an adjourned term, held on the last 'Tuesday of February, 1802, when the plaintiff appealed the cause to the superior court. It was continued from term to term in that court, until January, 1804, when the parties joined issue on the plea of not guilty, and went to trial to the jury. After witnesses had been sworn, and had testified, on both sides, the plaintiff suffered a nonsuit. Whereupon the superior court rendered judgment in favour of the defendant to recover his costs. The declaration in this case then averred, “ That said action, in favour of said Hannah, was commenced by the wicked instigation of her, the said Hannah, who arrived at the age of twenty-one years on or about the 1st day of November, 1801,,and before the said writ in favour of the said Hannah was returned to said November county court in the year 1801; and said Hannah, after she arrived at the age of twenty-one years, and before her intermarriage with said Jaron. Adams, carried on and prosecuted said action in favour of said Hannah, so far as the same was carried on as aforesaid, against the present plaintiff, without any just, or reasonable, or probable foundation, and with intent and design most unjustly to vex, trouble and abuse the plaintiff in the premises; for that the said Hannah well knew, at the time of commencing said suit, and at the
    
      SUPREME COURT OF ERRORS. 413 lime slie carried on the same as aforesaid, that if the then defendant had spoken the words as alleged in her declaration, they were true; and said charges imputed thereby were long before known to her, and to the public in general, to be true.” The declaration further alleged, “ That the plaintiff was most unjustly imprisoned on said suit for the space of twenty-four hours; and, in defending the same, expended large sums of money, to wit, the sum of two hundred dollars in employing counsel to defend; also the sum of two hundred dollars in paying witnesses, and maintaining them when attending on the trial; also the sum of one hundred dollars in making various journeys to procure testimony, and in attending on the trial, to the damage of the plaintiff,” &c. To this declaration there was a demurrer. The superior court adjudged the declaration insufficient. The plaintiff brought a writ of error to this court, at the term in June, 1808; when the cause'" was argued by Gould, for the plaintiff, and by Daggett and Hatch, for the defendants. The court being divided in opinion, continued it to advise, and ordered a further argument at this term, Sherioood and Hatch, in support of the judgment below. The acl';»n in this case, is founded upon the statute for preventing and punishing vexatious lawsuits.(a) But that statute creates or defines no new injury. Of course, the questions which arise upon this record are to be determined upon common law principles. June, 1809. STERI.IS& V. Adams.
    
      To constitute a civil suit vexatious, in a legal sense, three requisites are indispensable, viz. malice, want of probable cause, and damages either actually fallen, or else inevitable. Esp. Dig. 527.529. 6 Mod. 25. The inquiry now is, whether the plaintiff shows the suit, of which he complains, to have been thus vexatious.
    1. For the defendants, it is contended, that the declaration contains no sufficient allegation of damages.
    In the first place, no precise and ce.rtain rule is given, by which damages are to be assessed. The declaration admits, that costs were recovered in the original suit; but does not show, to what sum they amounted. A claim is now made for the extra costs in that suit; it ought, therefore, to appear, that the actual costs exceeded the taxed costs, and by how much; otherwise, it will be intended, that the taxed bill was a full satisfaction; or, at any rate, as the one bears no stated proportion to the other, it cannot be ascertained how great a part remains unsatisfied.
    To the claim on account of the imprisonment alleged, a distinct answer will be given.
    In the second place, no damages whatever are set forth, for which, under the circumstances of this case, a recovery can be had. The plaintiff avers, first, that he has been damnified, by imprisonment, and, secondly, that he has suffered expense.
    As to the imprisonment: This being an action against husband and wife, for a vexatious suit instituted and prosecuted by the wife, duin sola; the present inquiry rrlust be, whether she was liable at the time of the intermarriage. From the plaintiff’s own showing, it appears that, at the commencement of the original suit, the wife yas a minor; the suit was commenced by guardian; the writ bore date the 23d of July, 1801, and the plaintiff was arrested on the same day. It further appears, 1 * that the wife came of full age on or about the first of November, 1801; so that the arrest and imprisonment took place during her infancy. Upon these tacts, the general question arises, whether an infant is liable to an action for a vexatious civil suit ? For, if not liable generally, in this action, it cannot be claimed, that the wife could have been subjected, for any vexation or damage sustained, prior to her completing full age.
    Here we are told, that an infant may be liable in this action; because, as it is said, he has it in his power to commit the injury. This is denied. We are not now’ considering the case of an action for false imprisonment; for which an infant is unquestionably liable, as for all torts, which are vi et armis. But an infant is not capable of commencing, or prosecuting a suit. If plaintiff, he must appear by guardian or firochein amy; if defendant, by guardian; but, in no case, can he appear by attorney; for the appearance of an infant’s attorney is held to be without warrant. In England, the guardian, by whom he appears, is assigned either by the court, or by writ out of chancery. Both here and in England, the guardian has his warrant from the court, and not from the infant. 3 Eac. Abr. 148, 149. and authorities there cited.
    An infant being thus incapable of prosecuting a suit, is it- not a contradiction, in terms, to say, that he may prosecute vexatiously ? Besides, the guardian, as we have seen, acts independently of the infant, deriving his powers from the appointment of the court. Can the infant be subjected for acts done in pursuance of such appointment, or for an abuse-of the powers which it confers ? The infant could neither cause, nor prevent, nor in any respect control the prosecution. How then can malice be impuu-d to him? Indeed, he is not mi Jur**> the law presumes him wanting in discretion. Shall he, then, be holden to judge of probable cause ? No , ■ ... . precedent of an miunt s liability in this action can be found. Indeed, it does not appear, that it was ever attempted to subject an infant for this injury.
    As to the expense: A claim is here made to recover for those items of expense, which, by law, are taxable in a bill of cost in favour of the prevailing party.
    In an action for a malicious criminal prosecution, expense alone is a sufficient ground of damage; and the reason undoubtedly is, that no costs are recovered by •the party prosecuted. Esfi. Dig. 528. Not so, however, in an action for a vexatious civil suit.
    In such case, if the action be instituted before a court of competent jurisdiction, be prosecuted in the ordinary manner, and be not attended by a malicious arrest and holding to bail, there is not any ground of damage which the law recognises. At any rate, it is claimed, that those items of expense which are ordinarily taxed in bills of cost, cannot be gone for, though the actual cost do in fact surmount the taxed cost. The forms of declaring, in this action, seem fully to warrant this conclusion. It is necessary that damages be specially alleged. Savil v. Roberts, 1 Ld. Raym. 379, 380. S. C. 1 Salk. 13. Why is this required? Expenses are always incurred in defending a civil suit; and, so far from being a special, they are an ordinary grievance. Indeed, why is it not actionable simply to bring a groundless- and malicous civil suit ? It is because the party prosecuting is amerceable firo falso clamors, and is liable to cost. The judgment ascertains and remunerates the claim of the defendant. Thus, the forms of the law in this, as in other cases, serve to show what the law is.
    
      Again, no case can be found, in which a recovery ;has been had, for those items oR expense which are the subjects of allowance in bills of cost. All the instances, ' . in which it is laid down by Espinante, and other elementary writers, that this action lies, are cases, in which either no -costs could be taxed; or where no costs could be taxed against the party guilty of the vexation or where the ground of, damage was some grievance, which is not the subject of allowance in the taxation of costs. Esfi. Dig. 525j 526, 527. Dub. edit.
    First, where no costs could have been taxed This happens in all cases, where, as in Atwood v. Monger.. Style, 378. it is apparent from the record, that the court has not cognisance of the cause ; or where, though the court have cognisance of the subject matter, its jurisdiction extends not to allow costs, as in Hocking v. Matthews, 1 Vent. 86. which was an action for suing the plaintiff in the spiritual court; or where the vexation is done under colour of final process, as in Watern v. Freeman, Hob. 260 266. where the defendant had sued a second ft. fa. and sold the plaintiff's goods, though he had before taken goods under a former fi. fa.
    
    Secondly, where no costs could have been taxed against the party guilty of the vexation. Such was the case of Thurston v. Eunnes, March, 47. where a stranger, without the privity of the person to whom a sum of money was due, sued out a writ, and arrested the debtor for it.
    Thirdly, where the damages are of such a nature as could not have been the subject of allowance in the bill of cost. This is the case in all actions for maliciously holding to bail. Under one or other of these heads, it is believed, may be classed all the cases of actions for vexatious civil suits, to be found in the books.
    Further, the elementary writers all agree in assigning as the reason, why it is not generally actionable to bring an unfounded suit, that costs are recoverable. Esp. Dig. 525. Gilb. L. Ev. 621. 624. In this, many judges of the highest reputation have concurred, and expressly made it the foundation of their judgments, as may be seen on a reference to the cases already cited. The instances in which this action lies, are treated as mere exceptions to the rule; because, in those instances, the reason of the rule ceases.
    Indeed, in one case, that of Rogers v. Illscombe, [MS. cited Esp. Dig. 535, 536/] this point seems to have been directly decided in our favour. An action was there brought for a malicious holding to bail. The plaintiff offered, as evidence of part of her damages, the costs she had been put to, in defending the former action; to which it was objected, that those costs had been taxed upon that action. On the other hand, it was urged, that as the extra costs always exceeded the taxed costs, they might go for these; but Justice Buller refused to receive the evidence. There was, indeed, another distinct ground of objection; but we are informed, that “ the judge rejected the evidence apparently on both grounds.”
    2. The plaintiff’s declaration shows, that there was a probable cause for the original suit. It admits the slanderous words to have been spoken, but alleges them to have been true.; and it avers, that the first action was groundless only for the reason, that the defendant in that action, had a justification.
    What shall lie considered as probable cause, though a question of law, seems not to be very precisely defined.
    
      Our inquiries on< this point must be principally aided by detached cases and general rules. ⅞' '
    In the ancient proceedings in conspiracy, it is said, reasonable suspicion was probable cause. Per Cur. in Sutton v. Johnstone, 1 Term Rep. ^07.
    In one case [6 Mod. 25.] it is laid down, that the prosecution must be “ without any colour of cause,” to lay the foundation of an action.
    In Reynolds v. Kennedy, 1 Wile. 232. it was held, that an erroneous sentence of condemnation by the sub-commissioners of excise, which sentence was alleged to have been “ most justly reversed” by the commissioners of appeal, nevertheless showed a foundation for the defendant’s prosecution.
    In Smith v. McDonald, 3 Esfi. Rep. 7. the defendant in the original prosecution was acquitted, without calling a witness. He thereupon brought his action against the prosecutor; . in which, however, Lord Kenyon directed a nonsuit, remarking, “ that if the evidence offered to the jury, at the trial of the indictment, was sufficient to cause them to pause, he should hold it a probable cause.” From these and other authorities, it is to be collected, that a very slight matter amounts to probable cause, and that courts hold a severe hand upon this sort of actions.
    Whether in slander, if the speaking of the words be admitted, and the defendant justify on the ground that they were true, the action shall be held to be. without probable foundation, is now the question.
    It is readily conceded, that this point has never arisen, or been determined upon this precise state of facts; but ⅛ an’alogous cases, ¡n-«ases decisive of the principal one, it is believed to be well settled. From all the adjudications on the subject, this -ule or principle seems pi.-inly deducible, that where the defence in the first suit or p~o-secution is merely some collateral matter set up by way of avoidance, it implies or admits probable cause.
    In the case of Waterhouse, v. Bawde, Cro. Jac, 133. it was fully recognised, or rather laid down almost in totidem -verbis. The court there held, that it was not actionable to sue in the spiritual court for any matter, which was properly demandable there, though the plaintiff had no cause of action; but if it appear on the face of the [ibid, that such matter was not properly suable there, and that the court hath no jurisdiction, then “ action on the case lieth.” “ But,” the court say, “ if the suit be there for a thing demandable and recoverable there, by any thing, which appears by the libel; and by the defendant's Jilea, or by any collateral matter., he is barradle there, no action on the case lieth.”
    _ The determination in the case of Fish v. Scott is still more directly applicable to the point in debate. There the first prosecution was for an assault and battery, and the defence, that the assault was committed by the defendant se defendendo. For this prosecution action was brought, and came on to be tried before Lord Kenyon at Msi Prius. But, upon the bare statement of the case, his lordship interposed and directed a nonsuit, upon this ground, as well as another, that self-defence being mere matter of justification, admitted the assault, and of course probable cause. This decision must have been acquiesced in; for it does not appear ever to have been brought up for revision at Westminster-Hall. .Peake’s JY. P. Cas. 1 35.
    The same doctrine was settled in the case of Suttim 
      Vi Johnstone, 1 Term - Refit 493. 784. a case which was decided after repeated argument, and upon the fullest consideration. It should be added, that although there were opposite decisions had in this case before the two different courts, where it was tried in the first ⅛. stances; yet, upon the point on which it finally turned, there was no diversity of opinion among the judges. The case was as follows: An action was brought for a malicious prosecution before a court-martial, for an alleged disobedience of orders. The declaration set forth the proceedings and sentence of the court-martial; from which it appeared, that the court found the fact oí disobedience, but also found, that the disobedience was justified. The defendant in the original prosecution was acquitted therefore solely upon the ground of his justification; and thereupon the question arose in this action, whether, as the justification was the sole ground of acquittal, the declaration did not admit a probable cause ? The court, upon a writ of error in the exchequer chamber, held that it did, and therefore adjudged the declaration insufficient. This judgment was afterwards confirmed in the home of lords.
    
    An attempt is here made to distinguish this case from the one at bar. In Sultan v, Johnstone it is said-, that the prosecutor could not have been taken to know the facts which constiluted the justification, and this is inferred from certain loose expressions, which fell from the bench.
    To this it may be answered, that the science of the defendant as to these facts was expressly charged in every one of the four counts in the declaration. Term Rep, 494, 495. 500, 501.]
    Bu( further, those averments, however necessary or proper, had not, and could not have had, any possible connection with the question upon which, that case turned- The' question was, does this declaration show a want of probable cause ? Science is properly averred in such a case only to show malice; but it was in that very case, that Lord Mansfield and Lord Loughbo-rough remarked, that “ from the most express malice, the want of probable cause cannot be implied.” [1 Term, Left. 545.] Had the averment of malice been omitted, such omission would, indeed, have furnished a distinct topic of objection to the declaration; but, whether made or omitted, the question as to probable cause would still present itself in the same shape. The very conclusion, therefore, against which their lordships seemed most solicitous to guard, is now attempted to be supported by their authority.
    It should here be observed, that, in each of the two cases last cited, the plaintiff had far more colour of claim, and the application of the rule, by which they were decided, was more apparently technical and arbitrary than in the present. In Pish v. Scott, the battery was supposed to have been committed in self-defence; in Sutton v. Johnstone, the disobedience was justified by a physical necessity. In neither case, was there in fact any criminality; though in each it was held there was probable cause of prosecution. No reference is here had to the second point, on which the judge expressed his opinion in the case of Fish v. Scott, There was said, indeed, in that case to be two distinct assaults ; one of which only was committed in self-defence; but the judge expresses a clear opinion, that each constituted a probable cause. In the case before the court, the defence in the original suit was such as admitted guilt as well in the eye of the law, as of morality; for to utter slanderous words, with no other excuse or justification than that they can be proved to be true was never reckoned innocent. The law allows such a justification to avail as a defence, “ in compassion,” as.it is truly said, t! to men’s infirmities.” [4 Bac. Abr. 480.J But never was it foreseen, that these infirmities would be alleged as merko? rious, or made the foundation of a claim.
    The rule', here insisted on, is further supported by the authority of Chief Justice Parker. In Jones v. Ci-uins, his lordship advances it, as an undoubted proposition, that “ the determination” (¿. e. the determination of the original prosecution) “ must be such as does not admit a reasonable cause for the prosecution; as if a pardon be pleaded, which admits in some sort guilt, however is quitting the vindication of innocence, or justification, which admits the fact, and consequently reasonable cause of complaint.” Gilb. Cases in Law and Equity, 215. The defence in the suit now claimed to have been vexatious, falls within both the exceptions here stated. In the first place, it “ admits in some sort guiltand in the second, it is a mere matter of “ justification, which admits the fact, and consequently reasonable cause of complaint.”
    But it is said here, that the justification in this case is substantially a denial of the cause of action, and no more admits a probable cause than the general issue; for that, to constitute slander, the words spoken must be false.
    It is not easy to conceive how this justification differs from any other; every sufficient plea of matter of justification ex vi termini, effectually denies or repels the liability of the defendant. This proposition, therefore, applied as it is in the argument, levels, at one blow, all the authorities cited for the defendant; authorities, which have never once been denied or doubted in the books. In Sutton v. Johnstone, the justification established, that the disobedience was not wilful, and therefore not criminal. In prosecutions for assaults, committed in self-defence, as in Fish v. Scott; or under authority, as in the common cases of sheriffs.and their officers; the justification, in the same sense, denies the cause of prosecution. So, too, a plea of pardon effectually destroys any just liability to prosecution, or punishment. But is this court now prepared to overrule the well settled doctrine in all these cases 1
    
    It is not surely intended, by this objection, to say, that the truth of words charged could, by the common law.be given in evidence under the general issue; or that a special plea, setting up a justification on that ground, would amount to the general issue. The rule on this point-is too familiar to be repeated. (Fsfi. Dig. 517.)
    
    Again, it is said, that it would have been competent, under this deciaratiop, to have proved, by the confessions of the plaintiff, in the action of slander, that, her suit was instituted and prosecuted, for the sole purpose, and with the single intent to vex. This is admitted; but what follows ? Simply, that the action was prosecuted with malice ; not that it was without probable cause. Similar confessions might be proved in very many cases, where the cause of action is undisputed. That such proof would have been admissible, therefore, goes merely to show, that malice is sufficiently stated; but the objection to this declaration is not for the want of an averment of malice.
    3. But we contend further, that even the justification in the action oí slander is not sufficiently set forth in this declaration. For aught that appears, the plaintiff in that action might have prevailed, had he gone to trial, on the issue closed. The words charged are admitted to have been spoken ; and it is not alleged, in any tra-versable form, that those words could have been proved to be true, or that they were true in fact. It is merely averred, that the several charges were known, by the plaintiff in that action, “ and to the public in general, to be true, and that they imported no defamation,” &c. From this, it cannot be inferred, that there was one competent witness, who possessed a knowledge of the truth of those charges; much less, that the then defendant could have availed himself of the testimony of such. "witness on the trial of that action. In whatever light such an allegation might be viewed, after verdict, it is believed to be ill on demurrer.
    It should here be remarked, that actions of this sort are not favoured. To bring a civil suit is “ a claim of right,” and there would be much danger in restricting it within too narrow limits. Cases of extreme hardship may undoubtedly be imagined ; oppression, under colour of law, may, in some instances, be, practised with impunity. Where there is even an undoubted right of action; it may sometimes be made to serve the purposes of vexation. But courts, in settling the limits of this action, have been obliged to balance between opposite evils; between the evils resulting from a too loose and a too restricted definition of the injury which it is intended to redress. It is not now the subject of inquiry, whether the rules already established are the most perfect that can be devised or imagined; but if that inquiry could properly be instituted here, it would not be difficult to prove, that they are founded in the highest wisdom.
    
      Gould and i?. M. Sherman, contra.
    It is admitted, that a person must be guilty of a very-gross abuse of the right of suing, before he will be liable for vexation. To the exercise of that right great indulgence is given. If the object of the plaintiff be, in any degree, to obtain right, his temper is not to be regarded. When all the facts known er believed by the 
      
      plaintiff, or existing without his knowledge., would afford any probability, to an honest mind, that there ought to be a recovery, probable cause in law exists; and a suit, however unsuccessful, injurious or vindictive, will entitle the defendant to no remuneration. Here is often great wrong, and no remedy, it is damnum absque injuria. Sound policy, however, does admit redress for injuries done by an abuse of the right of suing, on principles which do not abridge its legitimate exercise. In such case, malice, damage, and want of probable cause, must concur. Thus far we agree. It is also not denied, that the first requisite exists in this case. But the defendants claim, that the declaration shows no damage, and admits probable cause.
    
    As to the former it is contended by the defendants, that, if legal damage be alleged at all, the averments do not show the precise amount; and, therefore, that it does not appear, but the whole was satisfied by the bill of cost. But the items of taxable cost are ascertained by public law, of which the court can take notice without averment. For example: The most which can be taxed for counsel or attorneys is 1 dollar and' 34 cents, in the county court, and 2 dollars and 68 cents, in the superior court. But here the plaintiff alleges, that he has expended 200 dollars in employing counsel to defend. Is not the legal inference from this averment, that the plaintiff had no remuneration, in the taxable costs, for what this sum exceeds the amount prescribed by statute ? The defendants admit tiiat the allegation of imprisonment is not answered by the objection; but contend, that it happened during the infancy of the plaintiff in that action. It is hardly claimed, that she wanted legal discretion to commit the injury. At the age of seventeen years, an infant is chargeable for malicious words, and, inueed. ⅛ at the age of fourteen the law presumes the human mind his acquired a complete sense of right and wrong.” She was more than twenty. But the priucipa! argument is, that she had not the control oí the action. It was. however, “commenced by her wicked instigation.” If a person causes me to be prosecuted crimin&iitef, maliciously and without probable cause* it is not denied that he is liable in damages, although he could not commence or control the prosecution. If I destroy by an agent over whom i have not legal authority, am I therefore not responsible ?
    As to the expense, it is further insisted, that we claim a recovery for taxable cost. This objection has already been obviated. It is clear we cannot recover a double satisfaction. Bat does it follow, that we cannot recover for expense at all i In the case of Savil v. Roberta, the plaintiff declared, that “ the defendant caused the plaintiff to be maliciously indicted of a riot, of which he was acquitted, by which he was put to great expense ” See. without specifying the damage particularly; which was fiolden good in that case, but that it would not be good in an action for a vexatious civil suit; because, as appears by the whole case, in the latter the damages must be specially alleged, else the cost recovered would be presumed a satisfaction. This case proves, that if the damages are specially alleged, no such presumption can exist. So far as the reasons in that case are grounded on the amercement pro J'álsa clamare, they are inapplicable here. In Esp. Dig. 527. Dub. edit, mentioned by the defendants’ counsel, IValerer v. Freeman is cited, in which it is expressly laid down, that “ if a man sue me in a civil suit, yet if his suit be utterly without ground, anti that certa nl known to himself, I n ay have an action of the case a^ainsi mm for the undue . vexation and 
      
      damage that he putteth me unto by his ill practice,, though the suit itself be legal, and I cannot complain of it.” Here is no malicious holding to bail, or want of jurisdiction in the court, or of right in the defendant to recovct cost, or abuse of final process. Those circumstances, it is admitted, might render a suit actionable, or aggravate damages; but they are nowhere said to be essential. The nisi firius case of Rogers v. Illscombe was an action in which maliciously holding to bail was the only damage alleged. It was well objected, for that reason, that costs could not be proved as a ground of damage. It was also objected, that these costs had been taxed and paid to the plaintiff, and that she could not go for them again. The judge rejected the evidence “ apparently on both grounds.” Certainly, both were very solid grounds. It was also claimed, that she foight go for the extra costs ; but to that the want of sufficient averments was particularly opposed.
    It is next contended by the defendants, that the plaintiff has shown probable cause on the face of the declaration. What they claim as to the degree of probability, which is sufficient to shield a defendant, has been already admitted. The least is sufficient. But that the want of probability must appear by the plaintiff’s own showing, Is not a sound proposition. Whenever he knows, that, on the whole, he has no right to recover, it is very immaterial in what form, or when, this is presented to the court; whether in the declaration, or a special plea, on his own evidence, or that of the defendant. The position is nowhere advanced. In Waterhouse v. Bawde, no more is decided than the plaintiff here admits, viz. that to sue, without cause of action, is not, per se, actionable; but to sue before a court which has no cognisance of the subject, is, of itself actionable. For example; Should I sue before a justice of the peace on a note with two witnesses for thirty-five dollars, and the defendant show, by his plea, that one of them had becomé‘ :lnfa-mous, or otherwise disqualified, and thereby takelaway the jurisdiction.of the court, this record would not, V itself.; prove cause of action; but had I declared on a note for forty dollars, the suit, of itself, would have béen an actionable injury, In the former instance, judgment by default would have been valiain the latter, void. Indeed, the doctrine in Waterhouse v. Baude is as applicable to an action of trespass for false imprisonment, as to a suit for vexation. For, in the instance first put, the record would justify an arrest of the defendant; in the latter, it would not. On attentively reading the case, of Fish v, Scott, it will appear obvious, that nothing more was intended relative to the point in question, than that the circumstances of that particular case constituted probable cause. Lord Kenyon does not intend to advance the general proposition, that probable cause always exists where the defendant is put to justify. Suppose a criminal publicly convicted and punished for theft; or confined in Newgate prison, has he probable cause of action against all those who mention the circumstance ? Was publication of such a fact “never reckoned innocent ?” Would the publisher be justified merely “⅛ compassion to men’s infirmities?” Would his defence “ admit, in some sort, guilt ?” Would there even be any truth in the averment in the declaration, that the words spoken were false and malicious ? But on this point the law is not silent. In Waterer v. Freeman, it is expressly laid down in these words: “ I may have an action on the case against him that sues me against bis release, or after the money duly paid; yea, though it be on a single obligation.” These last words are very emphatical. On an obligation with condition, the money pail might have saved the forfeiture, and the plaintiff never had cause of action at ail. But on a single obligation, the payment and release are mere matter af avoidance. In the whole language of the passage read, great pains is taken to be explicit on this point. if such an obligation be not conclusive of probable cause> much less can the speaking of words which are true.
    The case of Sutton v. Johnstone is strongly corroborative of the same law. The plaintiff, it is true,' was ultimately defeated, because probable cause appeared on his declaration, lie failed, however, because probable cause existed; not, as is contended, because the plaintiff was put to justify before the court-martial: The declaration alleged, that the defendant well knew the facts on which the plaintiff justified; but the court held, that those facts, though considered by the court-martial as a justi-fixation, were, as stated in the declaration, so complicated, and the inference of the plaintiff’s innocence so doubtful, that the defendant might, very honestly, have believed the plaintiff guilty. On this ground, and this only, they held that probable cause appeared on the declaration itself. This is apparent, not from any loose opinions which fell from the bench, but. from the deliberate, written reasons, of Lord Mansfield and Lord .Loughborough. Their language «is: “ The question, then, tried by the court-martial was, whether the plaintiff was justified in not obeying, by physical necessity. Now, there cannot be a question more complicated. It involves the precise point of time; the state of the winds; the state of the ship; the position of both fleets. It requires great skill in navigation- There is no question likely to excite a greater variety of opinions.” Again : “ Under all these circumstances, it being clear that the orders were given, heard, and understood ; that in fact they were net obeyed; that, by not being obeyed, the enemy were enabled the better to sail; that the defence-was. an impossibility 10 obey — a most complicated point— Under all these circumstances, we have no diiLcility to give our opinion, that, in law, the commodore had a probable cause to bring the plaintiff to a fair and impartial trial.” Now, why are all these circumstances thus minutely detailed and relied on ; their complicated and ambigúous nature ' made the basis of opinion; if that opinion rested, not on their nature, but on their being presented by way of justification. The opinion on this point amounted to no more than this, viz. “ that, however malicious Johnstone might have been, as a full knowledge of all the facts stated in the declaration might have afforded, to an honest mind, some probability, that Captain Sutton ought, in justice, to be convicted, there was probable cause in law.” if, in the case now in argument, all the facts stated in the declaration would afford some probability, to an honest mind, that the defendant Hannah ought, ⅛ justice, to have recovered damages of the plaintiff, then, however malicious she might have been, the declaration is insufficient. Surely, the facts are not of that complicated or ambiguous, nature, which would admit such a probability.
    It is further contended by the defendants, that it is not alleged, either that the words were true, or that their truth could have been proved on that trial. That they were true is essentially involved in the allegation that the defendant, Hannah, knew them to be true.' What does not exist may be believed, but cannot be known, to exist. As to the other allegation, if it must be presumed, that the “ public in general,” who also knew them, were all incompetent witnesses, yet, as no allegation of the sort is necessary, the declaration is good without it. Suppose a promissee had received full payment on a note to a great amount, delivered it .up to the promissor; afterwards surreptitiously taken it back, and commenced an action upon it. After the defendant had been long vexed with imprisonment and expense, trial approached, when the plaintiff, appalled with his ewn guilt, suffered a nonsuit. Long after the time of trial bad elapsed, lie made ample confessions, which were the first proof the defendant could obtain. Would not the injury be actionable ? In the case now before court? a judgment for the defendant would, indeed, from rules of sound policy, have been a technical bar, by precluding all inquiry as to probable cause; but as the result has left it open for investigation, the court cannot inquire how unfortunate the plaintiff might have seen, in obtaining testimony for the trial.
    
      
      
         St at. Conn. tit. 167.
    
    
      
      
         3 Com. Dig, Enfant, B. 4.
    
    
      
       1 Ihnok, P. C. 1.- note (1).
    
   By the Court.

Tins declaration contains all the averments necessary to support an action for a vexatious suit. It is expressly averred, that the former action was altogether groundless, and known to be so to the plaintiff, and yet, with an intent to vex, the action was commenced, and prosecuted, until great expenses, sufficiently specified, were occasioned. These aver-ments leave no room for probable cause; and the plaintiff, under this declaration, might have proved, that _the defendant had declared, that she knew she had no cause of action, but had commenced it with an intent to vex the plaintiff, without any expectation of a recovery. More complete vexation and malice cannot be imagined; and if, this action will not lie, it is impossible to state one that will.

It has been laid down as a general proposition, that ■where in the original action the defendant was obliged to set up some collateral matter, by way of justification, which does not appear on the declaration, probable cause is admitted. This proposition is unsupported by precedent or reason. When a justification goes on the ground of a denial of the cause of action, it no more admits a probable cause than the plea of not guilty. The present plaintiff, in the action of slander, justified on the ground, that the words charged to have been spoken by him were true. This was an absolute denial of the cause of action; for it is essential to slander, that the words spoken should be false; if they are true, the plaintiff has no cause of action.

It is not necessary to decide whether a minor would be liable, in any case for a vexatious suit; for though it appears, that the plaintiff in the original action was a minor, when the suit was commenced, it also appears, that she was of full age before the return-day, and that she afterwards knowingly prosecuted the suit, with the same intent to vex.

, We are, therefore, of opinion, that there is error apparent in the record before us; and that the judgment be reversed.

Judgment reversed,  