
    Ellis v. Thilman.
    [Friday, May 1, 1801.]
    Pleading and Practice — flalicious Prosecution -Want of Probable Cause. — In an action for malicious prosecution, it is not sufficient to allege that the defendant did it without any just cause, but the declaration must state that it was done without any probable cause.
    
      Thilman brought case against Ellis, for a malicious prosecution; and declared as follows: “John Thilman, jr. complains of William Ellis in custody, &c. for that the said William contriving and maliciously intending unjustly to grieve, oppress, weary and impoverish him the said John Thilman, and put him to great expense without any just cause, of his mere malice did lodge an information before a Court of Enquiry for the said county, (that the said John Thilman had felohiously taken a negro, the property of him the said John Ellis,) and thereby caused the said John Thilman, jr. to be arrested, examined before a Justice of the Peace touching the said felony, and afterwards to be committed for examination before a Court of Enquiry *for the said county, and the said information was so falsely and maliciously prosecuted and caused to be prosecuted against the said John Thilman bjr the instigation of the said William Ellis from the-day of-till af-terwards, to wit: at a Court of Enquiry held for the said county of Caroline, on the 16th day of May, in the year of our Eord 1793, when he was acquitted of the charge aforesaid, by reason of all which premises the said John Thilman was restrained of his liberty and compelled to procure bail for his appearance before' the Court of Enquiry, to spend large sums of money in his defence, and was moreover greatly injured in his good name, fame and reputation to the damage of the said John Thilman, jr. of five thousand pounds, and therefore he brings suit, &c.” Plea, not guilty; and issue. Verdict and judgment for the plaintiff fpr 1201. ; and the defendant appealed to this Court.
    Wickham, for the appellant.
    It was .not enough for the plaintiff to allege that there was no just cause, but it should have been stated that there was no probable cause. For, although there - was no just cause, if the defendant had prob-áble cause, it was sufficient to excuse him. To say that it was maliciously done, is not enough; for, if there was' probable cause, it justified the defendant. Accordingly the constant practice is, to aver that there was no probable cause. [Warren v. Matthews,] 6 Mod. 25, 73; [Farmer v. Darling,] 4 Burr. 1974; [Johnstone v. Sutton,] 1 T. E. 544; [Morgan v. Hughes,] 2 T. R. 226.
    Warden, contra.
    The allegation that there was no just cause, necessarily excludes the idea of any circumstance of justification. For, if there was a probable cause, it could not be affirmed that there was no just cause. Just cause ex vi termini means proper cause; and, if there was a probable cause, there was- proper cause; that is, a just cause. Consequently, when the verdict finds that there *was no just cause, and that it was maliciously done, it, in substance, finds that there was no probable cause. [Chambers v. Robinson,] Stra. 691; [Wicks v. Fentham et al.,]-4T. R. 248; [Jones v. Gwynn,] 10 Mod. 214, Gilb. Rep. K. B. 185, S. C.
    Cur. adv. vult.
    
      
       Pleading and Practice — Malicious Prosecution--Want of Probable Cause. — The declaration, in an action for malicious prosecution, must aver the want oi probable canse, and the want of this averment is not cured by a verdict. In support of this rule, see the principal case cited with approval in Burkhart v. Jennings, 2 W. Va. 255; Holliday v. Myers, 11 W. Va. 289; Porter v. Mack (W. Va.). 40 S. E. Rep. 463; Spengler v. Davy, 15 Gratt. 396; Kirtley v. Deck, 2 Munf. 20, 21, 24. In accord, see Young v. Gregorie, 3 Call 440; Marshall v. Bussard, Gilm. 9; Zantzinger v. Weightman, Fed. Cas. No. 18.202, 30 Fed. Cas. p. 913. See monographic note on “Malicious Prosecution.”
    
   LYONS, Judge.

Delivered the resolution of the Court, that the .plaintiff ought to have alleged the want of probable cause,- and that the omission was not cured by the verdict: consequently, that the judgment of the District Court was erroneous, and ought to be reversed.

Judgment reversed.  