
    Marshall v. Bussard.
    April, 1820.
    Wrongful Attachment — Action on Case — Declaration-Averments. -The declaration In a special action on the case, for suing out a foreign attachment, must aver both malice and want of probable cause, either expressly or by equivalent words.
    Bussard brought a special action on the case against Marshall, in the Superior court of Spottsylvania, charging that the plaintiff was entitled to 1245 bushels of barley, then laden on board a vessel lying in the river Rappahannock, within the jurisdiction of the court and of the Superior court of Chancery for the EVedericksburg district, and then being in the possession of M. Dawson, the master of the said vessel, for the purpose of being forwarded to the plaintiff at Georgetown, in the district of Columbia, and the defendant knowing the premises, falsely pretending that the said plaintiff, together with a certain Renner, was indebted to him in a large sum of money, for which he had no remedy but by subjecting the said barley to an attachment from the Superior court of Chancery of E'redericksburg, did, on, &c. sue forth from the office of the said court of chancery a subpoena to attach the goods and effects of the plaintiff and of the said Renner in the hands of the said Dawson, master of the said vessel, which subpoena was served on Dawson, and he thereby compelled to keep and .withhold the barley from the plaintiff for a long time, during which it was spoiled and became of no value, and was wholly lost to the plaintiff; and afterwards, to wit, *&c. said suit was dismissed by the defendant as appears by the record &c. “wherefore the said plaintiff says, that by reason of the said unjust and improper suing forth the said attachment without good cause therefor and the consequent attachment and detention of the said barley, in the hands of the said Dawson, he has been greatly injured and hath sustained damage” &c.
    The defendant pleaded “not guilty” and also pleaded specially.
    That on the 19th October 1814, and long before, the plaintiff and a certain Daniel Renner, trading under the firm of Raynard and Bussard, were indebted to the defendant in the sum of $793 04, which debt was contracted in Georgetown, in the district of Columbia: and that the plaintiff and Renner on the 19th October 1814, and before and ever since resided without the commonwealth of Virginia, to wit, in Georgetown, in the district of Columbia, and being so out of the commonwealth and the said Dawson having in his possession the said barley belonging to the plaintiff, the defendant sued out his subpoena to summon the said plaintiff and Renner and Anthony Buck and M. Dawson to appear &c. and the said subpoena was endorsed by the defendant’s counsel with the words “to attach the effects of the defendants Renner and Bussard, in the hands of the other defendants Buck and Dawson, so that they do not dispose of them until the further order of court,” which subpoena was served on the said Dawson, of which the plaintiff had notice, and the defendant avers the said bill to have been filed for the purpose of recovering the $793 04 aforesaid, and of attaching the effects of Renner and Bussard in the hands of Buck and Dawson, for the payment of the said demand. And the defendant, on the 19th January 1815, by the judgment of the circuit court of the district of Columbia, held in the city of Washington, to, wit, at the county of Spottsylvania, recovered against the plaintiff and • Renner the sum of $1600 and *$17 57 costs, to be discharged by the payment of $793 04 with interest &c. which said judgment was for the same debt aforesaid, and the plaintiff afterwards, to wit, on &c. dismissed his said bill in chancery, absque hoc, the deft, sued out no other bill in chancery &c.
    To this plea, there was a general demurrer, on which demurrer a joinder. The court gave judgment for the demurrant, and a jury was sworn to try the general issue, which was found for the plaintiff and $1148 09 damages.
    At the trial, Marshall’s counsel filed a bill of exceptions, setting forth at large the record of the proceedings on the attachment in Chancery, the indorsement on the subpoena signed by Marshall’s counsel in Chancery, in the words before mentioned.
    The bill states, that Dawson and Buck the garnishees “have on their hands a parcel of barley belonging to Renner and Bussard (or if the partnership be dissolved to Bussard one of the firm” and prays it may be attached &c. upon which, Marshall’s counsel moved the court to instruct the Jury, that Dawson the garnishee was not bound by the indorsement on the subpoena to retain the property in his hand if it belonged to Bus-sard solely. This instruction the court refused to give, Marshall excepted and appealed.
    Leigh for the appellant.
    The declaration is fatally defective in not stating, that the attachment was sued out, “maliciously and without probable cause,” or by equivalent words. At first he had thought those words, by the English practice, necessary only in actions for malicious prosecution; but farther consideration convinced him, that even in the English courts, they were equally indispensable in actions of this kind.
    But however it may be in England, the point is already settled in Virginia; , (in the case of Young v. Gregory() *the court held, that justifiable was not equivalent to probable cause; and in Kirtley v. Deck () it was decided, that the words false and malicious were insufficient, but there must also be added, without probable cause. In the present case therefore, the words “without good cause,” are surely no better, than without justifiable cause; indeed, they are not so strong; and a declaration charging the suit to be without justifiable cause, has already been decided to be vicious. But in Kirtly v. Deck the court was of opinion, that both malice and the want of probable cause must concur, and here there is no allegation of malice.
    Again, the special plea of the defendant sets forth, that the defendant had a large claim on Renner and Bussard, partners, &c. and finding property in Virginia belonging to that firm, the defendant had sued out his attachment, the indorsement on which, was the act of Marshall’s counsel. Now the demurrer to this plea admits the truth of the plea, and so there is a good cause for suing out the attachment admitted upon record, ()
    The fact of the indorsement being the act of the counsel, excludes the idea of there being malice in Marshall.
    And the indorsement on the subpoena, did not require the garnishee to retain any property, which was not the joint property of Bussard and Renner; and therefore, Marshall was not liable to Bussard, for any damage resulting to him, from the seizure and detention of property belonging to Bussard solelj'.
    Stanard contra.
    Denied that special actions on circumstances like these, were governed by the same principles, which control *suits for malicious prosecution ; and therefore, the authorities applicable to such cases, could not govern this.
    In this case the declaration and plea must be taken together, and it is a rule of pleading, that when the matter of the plea is incorporated into the declaration, and a good cause of action is made out between them, the plaintiff’s action may be sustained.
    The English cases are generally brought for the want of probable cause, and not as' this is, because there is already another action pending; but where a party is twice arrested for the same matter, it is in itself good cause of action, whether there be probable cause or not, for either of the actions separately, ()
    But the declaration in this case is sufficient of itself. The English cases shew malice and want of probable cause are not the only words which will give cause of action ; but that any equivalent words will support the declaration. Here, the plaintiff says the defendant “falsely pretended he had claim” &c. and that suing out the attachment was “unjust, improper and without good cause,” circumstances from which malice will be implied.
    As to the fact of the indorsement being signed by counsel, it is necessarily the act of the party — whether done by the counsel or the clerk, as it is the act of the party to demand bail, tho’ the indorsement be by the clerk.
    Leigh replied.
    Georgetown is as foreign to Virginia, so far as this question is affected, as London or Calcutta, and there can be no question, but that the pendency of a suit in a foreign country will not deprive a creditor of his opportunity of attaching the property of his debtor wherever he may find it. One may well sue even in the same country, both in Chancery and in a court of common law. The *court of Chancery can only compel the plaintiff to elect one of the two tribunals.
    The reference to 8 Went. 310, is to a case where the debt was paid before the latitat was sued out, and there was neither good, nor probable cause for the action. — The authority then by no means proves, that bringing two suits for the same cause, is of itself actionable.
    
      
      The principal case is cited in Olinger y. M’Ohes-ney, 7 Leigh 687. See also, monographic note, on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
    
      
      (a) 3 Call 446.
    
    
      
      (b) 2 Mun. 10.
    
    
      
      (c) 2 Wils. 302; 2 Esp. N. P. 526,
    
    
      
      (d) 8 Went. PI. 310.
    
   ROANE, Judge. ()

The cases of Young v. Gregory () and Kirtley v. Deck () are decisive to shew, that the declaration in this action ought to aver, both malice, and the want of probable cause, either expressly or by equipollent expressions. There are no such expressions in ihe declaration before us; it is therefore', radically defective.

It is alledged by th.e appellee’s counsel, that the plea being demurred to is admitted, and aids the declaration so far as to make the gravamen of the action consist in the appellee’s being doubly vexed for the same cause. — Without stopping to inquire whether the plea has this effect or not, that plea does not shew, that at the time of the institution of this action, the suit in the county of Washington in the district of Columbia, had been commenced. It only avers, that the plaintiff got a Judgment in that court, for the same debt on the 19th January 1815, in an action, which may have been commenced after the institution of this suit. This objection is also decisive against the declaration, considered in this last point of view.

We are of opinion to reverse the Judgment, and enter it for the appellee, on account of the insufficiency of the declaration. 
      
      Hrookb absent.
     
      
      (e) 3 Call 416.
     
      
      (f) 2 Mun. 10.
     