
    
      William S. J. Ford vs. George H. Kelsey, S. Ilsley and J. Deas, constituting the firm of Kelsey Deas.
    
    In a count for malicious arrest, the plaintiff, after stating the suing out of the bail writ, tire arrest, detention in jail, &c., further alleged that the defendant, while plaintiff was in jail, obtained possession of a sealed letter of the plaintiff’s containing money, and opened, concealed, and detained the same for several days, &c. “by means of all which said several premises, and during said unlawful imprisonment, and the malicious keeping and concealing his said letter, and breaking the seal thereof, and detaining the same and the money therein belonging to the plaintiff, he, the plaintiff, suffered great pain,” &c., and was prevented from transacting his business, and incurred costs, &c. Held that the matter relating to the letter was not stated as a distinct and substantive cause of action, but merely as aggravation, and that, as the plaintiff did not make out a case of malicious arrest entitling him to go to the jury, he was not entitled to go to the jury upon so much of the count as related to the letter.
    In an action for malicious arrest for a larger sum than was due, the plaintiff, it seems, should state in his declaration, that he owed the defendant so much, and that the defendant demanded bail for more, whereby he, the plaintiff, was imprisoned for want of bail.
    In an action for malicious arrest, the plaintiff must shew want of reasonable or probable cause; and a voluntary discontinuance is not prima fade evidence of want of such cause.
    
      Before O’Neall, J., at Charleston, May Term, 1850.
    The report of his Honor, the presiding Judge, is as follows:—
    “ This was an action on the case for a malicious arrest.
    
      
      “ The plaintiff lives in Sevier County, East Tennessee ; he is a man of good character; he traded in Charleston, and was a customer of the defendants. A hail writ, in the name of Kelsey & Deas, was sued out against the plaintiff, on the 19th of May, 1848, and was discontinued on the 9th June, 1848. George H. Kelsey made the affidavit on the part of the firm, swearing that the defendant was indebted to them, by .note and account, in the sum of $1000 93-100. The plaintiff, before his arrest, to wit, on the 16th May, 1848, drew in favor of the defendants, on his correspondent in Augusta, Peter H. Scranton, for $500. This was not accepted. On the morning of the 19th, the day of his arrest, but before it, at fifty-seven minutes past eight, he dispatched a telegraphic message to Scranton, in Augusta, directing him to pay to S. C.‘ Warren, on account of and for the defendants, whatever sum he might have in his hands belonging to him, theplaintiff. At three, P. M., on the 19th of May, 1848, he was arrested at the Planter’s Hotel. Mr. Deas went with the deputy and pointed out the plaintiff; failing to give bail, he was committed to gaol, and at forty minutes past five, P. M., sent another telegraphic despatch to Scranton, Augusta, directing him to pay no order which he given in favor of Kelsey & Deas. When the plaintiff was about going to gaol, he requested Mr. Deas to take out any letters which might be addressed to him, the plaintiff, in the post office, and send or bring them to him in gaol. This he promised should be done. In an interview between the plaintiff and Kelsey, in gaol, Kelsey, after some altercation, admitted he had, after the plaintiff went to gaol, taken out of the jbost office and opened by his directions, a letter addressed to the plaintiff, containing $150, and had retained it from Friday till Wednesday. This letter was produced, and was one addressed by Scranton, of Augusta, on the 18th of May, to the plaintiff in Charleston. It probably reached Charleston on Friday, the 19th of May, the very day on which plaintiff went to gaol. In the conversation between Kelsey and Ford in the gaol, Kelsey affirmed the sum stated in his affidavit was due by Ford to Kelsey & Deas ; but Ford alleged that a large fart 
      had been paid. An account of the defendants against the plaintiff, for a sum which I do not recollect, and of which I made no note, was produced by the plaintiff, and it appeared to be marked settled on the 16th of May, 1848, by a note due 16th July, 1848. It appeared that on the 20th of May, Saturday, the plaintiff sent a written order, directing Kelsey &■ Deas to deliver his letters to the bearer. Kelsey said he had none.
    
    
      “ On closing the plaintiff’s case, a motion was made for a non-suit, which I should have granted out and out, if the case made in the record had been properly stated. It was represented that the first and third counts were for maliciously suing out a bail writ, and holding the plaintiff to bail, without any reasonable or probable cause, and the second, for unlawfully opening a letter-addressed to the plaintiff, and retaining it. On the first and third counts, I held that the plaintiff could not recover, inasmuch as he was bound to prove express malice in issuing the writ, and also the absence of probable cause, — want of indebt-ednes. Frierson vs. Hewitt (2 Hill, 499.) Neither of these were shewn, indeed the proof was satisfactory, that something was due; how much was not clear; it might be the whole sum claimed, or less. On the second count, as I then understood it, I thought the plaintiff might possibly recover, inasmuch as the letter was by one of the partners undertaken to be taken out of the post office, and delivered to the plaintiff, and was by another taken out, unlawfully opened, and retained at least four days. But as the grounds of appeal now inform me that there was in fact no such count, and that this matter was merely stated as aggravation, the nonsuit ought to have been granted. The case as I then understood it, was suffered to go to the jury, and, notwithstanding a strong charge from me, that on the first and third counts the plaintiff could not recover, and that on the second he might recover, but that he might recover, if at all, very slight damages, yet the jury found for the plaintiff a large verdict, $>800.”
    The defendants appealed, and now renewed their motion for a nonsuit, on the ground:
    
      Because his Honor erred in supposing that the declaration contained a separate and specific count for opening the plaintiff’s letter, of the 18th May, 1848. Whereas the fact is directly the reverse, inasmuch as the count which his Honor permitted to go to the jury, is, in its very terms, and in all its legal characteristics, essentially the same as the others, and the allegation of opening the said letter is merely inserted by way of aggravation, so that the legal anomaly is presented of two distinct and substantive charges embraced in one and the same count, and while a nonsuit was granted as to one of them, the other was permitted to go to the jury.
    
      Munro, for the motion.
    As the plaintiff clearly did not entitle himself to go to the jury upon the proof in relation to a malicious arrest, he should not have been allowed to go to the jury upon the proof in relation to the letter, for the opening and de- • tention of the letter is not stated as an independent cause of action. (16 Johns. R. 215.) But the evidence in relation to the opening of the letter was confined to Kelsey. In this joint action against three persons it was inadmissible. (2 Stark. Ev. 513.)
    Campbell, contra.
    The plaintiff now consents, as he would have consented on the circuit, if the motion had been made, that Ilsley’s name be struck from the record. The decision upon the second count in the declaration was correct. That count is not for a malicious arrest only: it is also for breaking open the letter. Strike out all relating to the arrest, and that part the Judge withheld from the jury, and the rest remains a count for breaking open the letter. If, therefore, this Court should concur with the Judge below, that there was no ground for the charge of malicious arrest, still the plaintiff is entitled to retain his verdict on the ground on which alone the jury were charged. But was not the plaintiff entitled to go to the jury upon the case for a malicious arrest? Was it necessary to prove express malice? Not at all. The plaintiff, in this action, furnishes prima facie proof of malice, when he shews want of probable cause. 2 Stark. Ev. 921; 1 Camp. 203; Ld. Raym. 374; 1 Salk. 14; 2 Wheat. Sel. 253; 10 Eng. C. L. R. 269 ; 2 Brev. 75 ; 3 Gill & J. 377; 3 Wash. O. O. R. 31; 1 T. R. 545 ; 19 Wend. 417; 24 Pick. 81 ;. 1 Hill, 81; 1 McM. 358; 3 Brev. 94; 1 Brev. 178. Was there proof of want of probable cause ? Commented on the evidence, and contended that there was. In an action for malicious arrest less evidence of want of probable cause should be required than in an action for malicious prosecution; for where the action is for malicious arrest, if probable cause existed, the defendant must know and can prove it. His voluntary discontinuance of his action would seem therefore to be evidence that probable cause did not exist. (19 Wend. 417.) But suppose the proof did shew that some small sum was due: still the action can be maintained, for defendants had no right to hold the plaintiff to bail for more than was due.
    
      Munro, in reply. It is clear that the plaintiff altogether failed to shew want of probable cause. (2 Brev. 75; 3 Strob. 307.) In an action for demanding bail for too large a sum, the plaintiff must allege what was due the defendant. (1 Camp. 295; 1 Salk. 14-15 ; 2 B. & P. 129 ; 2 N. H. R. 157; 1 Hill, 82; 2 Sup. U. S. Dig. 379 ; 2 Eng. C. L. R. 290; 17 Mass. R. 190.'
   Curia, per

O’Neall, J.

This case certainly does present itself, in some respects, in rather strange phases. For instance, until explained, it Avould appear a strange result, that a verdict should have been found against S. Ilsley, one of the defendants, without a tittle of proof against him. But the explanation removes, at once, this apparent absurdity. The case stood upon the docket against Kelsey & Deas ; they were treated, throughout the case, as the only defendants. Indeed I never knew, until served with the notice of appeal, that there was such a defendant in the case. So in reference to the second count, it was stated, and not denied, that there was a count for receiving, detaining, and opening the plaintiff’s letter.

So much to place the case in its proper light was deemed necessary before entering upon the case itself.

The ground of appeal presents the question, whether the second count is upon the receiving, detaining, and opening the plaintiff’s letter' as a cause of action, or whether it is merely stated as aggravation of the malicious arrest. It is plain, on reading the count, that it is a matter thrown in as aggravation, and is not stated as a distinct and substantive cause of action; for the count alleges that the defendants, without any reasonable or probable cause of action against the plaintiff then due and owing to the amount of the sum of money for which they caused the plaintiff to be arrested, &e. “ maliciously sued out their writ against the plaintiff.” This shews that the malicious arrest was the subject in the mind of the pleader; and, accordingly, he followed up his beginning by stating that a false affidavit to hold to bail was made, under the writ thus issued; that this plaintiff was arrested, committed to jail, and there remained until bailed: — and then he alleges, that while thus kept in jail, the defendants received, detained' and opened his letter: then the- count resumes the original grievance, and sets out that the defendants discontinued their suit against the plaintiff, and concludes, by saying“ By means of all which said several premises, and during said unlawful imprisonment, and the malicious keeping and concealing his said letter and breaking the seal thereof, and detaining the same and the money therein belonging to the plaintiff, he, the plaintiff, suffered great pain and anxiety of body and mind, and was prevented from transacting his necessary affairs and business by him during that time to be performed; and thereby also the plaintiff necessarily incurred divers costs and expenses, to wit, — to the amount of one thousand dollars in and about the obtaining his release from the said arrest and imprisonment, and in and about defending himself against' the said action; and in and about other the premises and by means of the premises the plaintiff was and is injured in his credit and circumstances,” &c. ()

It is plain, from this examination of the count, that the matter about the letter is not stated as any distinct cause of action. It is used as part of the injury, sustained by the plaintiff, in the malicious arrest. That the count was bad on demurrer, is clear, if the matter about the letter is a good cause of action, and is stated as such : for then two causes of action would be joined in the same count. I think it is possible that it may be a good cause of action, and that if it had been set out as such, this verdict might have been sustained. Bdt it is not so stated, — it is merely set out as an incident of the malicious arrest. I am, therefore, satisfied, that the case went improperly to the jury in that respect. But, notwithstanding this may be so, still if the plaintiff made out a case, on the malicious arrest, on which he could stand, the motion for nonsuit would not be allowed to prevail here. I thought, however, on the Circuit, and still think, he failed in this respect; for without adverting to the necessity of shewing express malice to sustain a case of this kind, about which no opinion is now intended to be given on the part of the Court, it will be enough if the plaintiff failed to shew that the defendants issued their writ, and held him to bail, without any reasonable or probable cause.

It was supposed, in the argument, that this was a case for demanding bail for a larger sum than was 'really due. But that is not the character of the case made. It is true the beginning of the first count alleges that the defendants, without any reasonable or probable cause of action whatever against the plaintiff, “ to the amount of the sum of money for which” they caused the plaintiff to be arrested, maliciously sued out their writ, &c; but in an after part of the same count, after setting out the affidavit to hold to bail, the plaintiff traverses it, and declares it tobe “wholly untrue, groundless, and without probable cause.”

The second count makes the allegation that the defendants, “without any reasonable or probable cause of action then due and owing to the amount of the sum of money for which they caused the plaintiff to be arrested, maliciously sued out their writ,” &c. against the plaintiff. The third count is without pre-tence for causing the plaintiff to be arrested without any reasonable or probable cause whatever.

Having made this statement of the record, I think it is apparent that it does not make out a case for demanding excessive bail: for I agree with what is said in the note to Wetherden vs. Embden, (1 Camp. 298,) that in such a case it is necessary to state that the plaintiff owed the defendant so much, and that the defendant demanded bail for more, whereby he was imprisoned for want of bail. It is possible that the defective statements in the declaration might have been cured by the verdict, if the proof had shewn how much the plaintiff really did owe — and fox-how much more than the real sum bail was demanded; but there was no such proof. Indeed the case did not go to the jury on any case of that kind, but on a wholly different one, and on which the plaintiff had no status in Court sufficient to prevent a nonsuit. He now, however, falls back upon the case made, which did not go to the jury, and claims that that should prevent a nonsuit. Under such circumstances, his defective statement has no help from the verdict. Comparing his proof with the record, there is neither allegation nor proof of injury from demanding bail for too large a sum.

Indeed, the whole case, when the record is examined, is for maliciously arresting the plaintiff, without any reasonable or probable cause: or else it does not state with sufficient certainty any other cause of action.

Considering the case, therefore, as for a malicious arrest, it will be enough to defeat it if there be a failure to shew that the writ was issued without reasonable or probable cause.

In the first place it is supposed that a mere discontimtance is prima facie enough to establish a want of probable cause. But surely there can be no ground for such a notion when neither a nolle prosequi, nor “no bill” by the grand jury, in a criminal matter, can have such effect. Fulmer vs. Harmon, (3 Strob. 576.)

But independent of authority, there can be no doubt about it. Probable cause is any thing which creates a reasonable belief that the charge is true. Does the mere withdrawal of a suit create a belief that an affidavit to hold to bail is false? It does not afford any ground to believe that the party did not think the affidavit was true: for a discontinuance may arise from some technical objection, such as that the party brought assumpsit, when the form of action should have been debt.

So, too, the plaintiff regarded the law: for he did not stop when he gave the discontinuance in evidence, but he went on to shew, if he could, that no debt was due. But in this he wholly failed: for instead of shewing that no debt was due, he conclusively shewed that he was indebted to the defendants. It is true he shewed that an account, contracted in 1847, for about one-fourth of the debt claimed by the defendants, was settled on the 16th May, 1848, by a note due 16th July, 1848. But this was no evidence that the defendants had not cause of action, as they alleged, by notes and account, or at least believed that they had. But the proof which he gave of a draft drawn in favor of the defendants on Scranton, Augusta, for $500, and not accepted before he was sued: the telegraphic dispatch, which he sent in the morning of the day on which he was sued, and before he was sued, desiring. Scranton to pay to Warren for the defendants whatever sum of money they had in their hands, are plain admissions of a present indebtedness to the defendants. Indeed the last, unqualified as it was as to the amount, might, if necessary, be regarded as an admission of the whole debt demanded.

So, too, in the conversation in jail, proved by Cook, there is an admission of indebtedness by the plaintiff which cannot be got round. In that conversation, Kelsey affirmed the whole sum demanded was due: Ford did not pretend that nothing was due: on the contrary, he said a large part had been paid. After such proof, how can it be said there was an absence of probable cause? There was not only proof enough to shew that the defendants believed what Kelsey swore was true, but also that, in fact, the plaintiff was indebted in a considerable sum to the defendants.

It is said, however, the existence of probable cause is a question for the jury. That is true, where there is any dispute about facts. But where, as here, all the facts proved by the plaintiff are assumed to be true, and still they do not make out what in law constitutes proof of absence of probable cause, it follows there is nothing to go to the jury.

The motion for a nonsuit is granted.

Evans, Feost, Withers and Whitnee, JJ,, concurred.

Wardlaw, J.

The defendants pleaded only a general traverse : the whole case, except so much as related to the opening of the letter, was withdrawn from the consideration of the jury, because express malice and want of probable cause were not both proved by the plaintiff; and the evidence of the defendants was not offered. A verdict which, after a full trial, might be rendered for the plaintiff, would be supported by the count which alleges the opening of the letter, followed by special damage, as the wrong done (every thing else in the count, if not proved, being rejected as surplusage); or by one of the counts, which in effect allege a malicious arrest for more than was owing by the plaintiff. I object to considering the defects of a declaration, upon a motion for nonsuit, as they would be considered upon a special demurrer. I think that a new trial should be ordered.

Motion granted. 
      
       The following.is a copy of the second count of the declaration:
      “ For that whereas also the said defendants, copartners aforesaid, -heretofore, to wit, on the nineteenth, day of May, in the year of our Lord one thousand eight hundred and forty-eight, not then having any- reasonable or probable cause of action against the plaintiff, then due and- owing to the amount of the sum of money for which they caused the plaintiff to he arrested, as hereinafter mentioned, hut contriving and intending to harrass, oppress, and injure the plaintiff, falsely, wrongfully and vexatiously caused to be issued and prosecuted out of the Court of Common Pleas for Charleston District, under the seal of said Court, and tested by the Clfjrk thereof, at the suit of defendants against the plaintiff, a certain writ, called a capias ad res-pondendum, and directed to all and singular the sheriffs of the State of South Carolina, commanding them and each of them, to attach the body of the plaintiff wheresoever he might be found, so as to compeí him to be and appear before the Justices of said State, at the Court of Common Pleas, to be holden at Charleston, for the district of Charleston, on the fourth Monday of October next thereafter, to answer to the said defendants in a plea of trespass on the case and so forth, for certain alleged promises and assumptions by the plaintiff to the defendants made and not performed, to their damage two thousand dollars, and to have the said writ before the Clerk of said Court at Charleston, fifteen days next before the sitting thereof. And the said defendants farther contriving and intending, as aforsesaid, to injure and oppress the plaintiff, afterwards, to wit, on the day and year aforesaid, falsely, wrongfully and vexatiously, and without having reasonable or probable cause of action aforesaid, by means of a false affidavit made by George H. Kelsey, andsworri to on the day aforesaid, before Charles R. Brewster, Esq., styling himself and being a Notary Public and ex officio Magistrate, wherein the said George H. Kelsey, styling himself one of the firm of Kelsey & Deas, made oath and swore, to wit:
      STATE OF SOUTH CAROLINA:
      Personally appeared before me George H. Kelsey, one of the firm of Kelsey & Deas, and made oath, that W. S. J. Ford is justly indebted to him in the sum of one thousand dollars and ninety-three cents, being a balance due and owing upon his promissory notes, drawn by him, and payable to said Kelsey & Deas, and upon an open account for goods sold and delivered; and this deponent further saith, that no part of said balance of one thousand 93-100 dollars has been paid.
      (Signed)
      GEORGE H. KELSEY.
      Sworn to before me this 19th May, 1848.
      (Signed) C. R. Bhewsteh,
      
        Not. Pub. «J. Mag. ex off.
      
      Caused the said writ to be endorsed with an order for bail, and to be delivered to James S. Shingler, Esq., then and now sheriff of Charleston district, to be executed according to law. And the defendants afterwards, and whilst the said writ and the order for bail aforesaid was in force, to wit, on the day and year aforesaid, farther contriving and intending as aforesaid, and not having any such reasonable or probable cause of action as aforesaid, and well knowing said affidavit to be false, falsely, wrongfully, vexatiously, and abusing the authority of law, did cause the said plaintiff to be arrested under and by virtue of the said writ, and the said affidavit and order for bail, and to be committed to the body of the common jail of Charleston district, and imprisoned therein for a long time, to wit, from thence until and upon the twenty-fifth day of' May, in the year aforesaid, when the plaintiff, to obtain his liberation, procured certain persons, to wit, Stephen Watson, Fleetwood Lanneau, B. W. Force, P. M Cohen, E. B. Stoddard and H. S. Roosevelt, to become Special bail for him, and thereby bound unto the sheriff, by a bail bond, to said action, according to the exigency of said writ, and the law in such cases made and provided. And the said W. S. J. Ford in fact further says and avers, that afterwards, to wit, on the nineteenth day of May aforesaid, and while he was wrongfully and falsely imprisoned in the, Charleston jail, at the instance and contrivance of the said defendants, by reason of the writ of capias ad respondendum, and the affidavit and order for bail aforesaid, the said defendants, contriving and intending to oppress, delay and injure the plaintiff, and in abuse of the forms and process of law, did hinder and delay the said plaintiff, and obstruct him in obtaining bail, and did prolong his imprisonment in the jail, by depriving him of the means of obtaining counsel and advice, in this, to wit: The said defendants, on the day and year aforesaid, obtained possession of a certain sealed letter, in writing, from Messrs.'Scranton & Starke, of Augusta, Georgia, Merchants, and addressed to the plaintiff, and dated at Augiista, Georgia, the' eighteenth day of May, A. D. eighteen hundred and forty-eight, and having enclosed therein, bank-notes to the value of one hundred and fifty dollars, to and fox the plaintiff, and under the seal of said letter. And the said defendants being in possession of the said letter, and the bank notes aforesaid, contriving and intending as aforesaid, how they might delay the plaintiff and keep hint imprisoned, detained and kept the said letter, and Concealed the same, and broke the seal thereof, and took and applied the said bank notes to their own use, and denied all knowledge of said letter, or of the contents thereof, or that they had received the same, for a long time, to wit, from the day aforesaid, until the twenty-third day_ of May, aforesaid, to the great hindrance, delay, oppression and vexatiop of the plaintiff. And the plaintiff avers that afterwards, and after he had put in special bail, as aforesaid, and been liberated from imprisonment in the common jail, and delivered to bail as aforesaid, to wit, on the first day of June next thereafter, in the year aforesaid, the said defendants, by Bailey & Brewster, their Attornies, came into the Court of Common Pleas for Charleston District, then in session, and thereupon voluntarily procured an order of said Court to discontinue their said action, which order of said Court was therefore duly entered of record, and afterwards and before the bringing of this action, judgment of discontinuance was duly entered of record in the Court of Common Pleas, for Charleston district, and thereby it appears, by the record and proceedings thereof remaining in the said Court, and by means of the premises, the said action was and is wholly ended and determined. By means of all which said several premises, and during said unlawful imprisonment, and the malicious keeping and concealing his said letter and breaking the seal thereof, and detaining the same and the money therein belonging to the plaintiff, he, the plaintiff, suffered great pain and anxiety of body and mind, and was prevented from transacting his necessary affairs and business by him during that time to be performed, and thereby also, the plaintiff necessarily incurred divers costs and expenses, to wit, to the amount of one thousand dollars, in and about the obtaining his release from the said arrest and imprisonment, and in and about defending himself against the said action ; and in and about other the premises and by means of the premises, the plaintiff was and is injured in his credit and circumstances, and otherwise greatly damnified. To the plaintiff’s damage, ten thousand dollars; therefore, he brings suit and so forth.
     