
    Mowry v. Miller.
    March, 1832.
    [24 Am. Dec. 680.]
    Malicious Prosecution — Advising and Procuring Prosecution for Felony — Case.—Action on the case, for defendant having -advised and procured a third person to institute a malicious prosecution against plaintiff for felony: Held, the action lies against defendant for advising and procuring such prosecution.
    Same — Declaration—Without Probable Cause,* — In every such action, the declaration must allege that the prosecution was without probable cause; hut that allegation relates to the state of the fact, that the prosecution was without probable cause, not to the state of the defendant’s knowledge that there was no probable cause.
    Same — Same—General Demurrer. — On general demurrer to a declaration, the court looks always to the substantial meaning of its allegations, to ascertain whether it states good cause of action.
    Same — Same—Variance as to Date — When Immaterial. —In an action on the case for advising and procuring a malicious prosecution, it is not material for the plaintiff to prove the exact day of his acquittal as laid in the declaration, so that it,appears to be before the action brought; and, therefore, a variance in that respect, between the day laid, and tRe day stated in the record produced to prove the acquittal, is not material; the day not being laid in the declaration, as part of the description of such record of acquittal, and being laid under a scilicet.
    Case, brought by Miller against Mowry, in the circuit court of Shenandoah. The declaration was in the following words :
    “ B. Miller complains of G, Mowry, in custody &c. of a plea of trespass on the case: B'or that, whereas the said Miller is a true and honest citizen of the commonwealth »&c. and hath never been guilty, or, until the committing of the grievances by the said Mowry, herein after mentioned, been suspected to have been guilty of felony &c. Yet the said Mowry, well knowing the premises, hut contriving and maliciously intending to injure the said Miller, in his good name &c. and to bring him into public scandal &c. and to cause him to be imprisoned &c. heretofore, to wit, on the 24th October 1825, at &c. consulted with, advised and procured one S. Zirkel, to go before George Moore a justice of the peace in and for the county aforesaid, and, then and there, induced the said Zirkel, falsely and maliciously and without any probable or reasonable cause whatsoever, to charge the said Miller with having feloniously stolen 1400 dollars in bank notes, the property of the said Zirkel, from the possession of the said Mowry ; and upon such charge, he the said Mowry prevailed on and compelled the said Zirkel, by the false, scandalous and malicious representations of him the said Mowry, and without any reasonable or probable cause whatsoever, to procure the said Moore, being such justice as aforesaid, to make and grant his warrant &c. for apprehending the said Miller, and for bringing the said Miller before the said Moore, or some other justice of the peace for the said county, to be dealt with according to law, for the said supposed offence ; and the said Mowry directed, advised and procured the said Zirkel, under and by virtue of the said warrant, afterwards, to wit, on the 24th October 1825, at &c. wrongfully and unjustly and without any reasonable or probable cause whatsoever, — and, at the instance of the said Mowry, caused the said Miller to be arrested &c. and imprisoned &c. until the said Zirkel, at the instigation of the said Mowry, by his false, scandalous and malicious charges, caused the said Miller to be carried before the said Moore justice of the peace as aforesaid, and to be committed by the said justice for examination, without any probable cause, to the jail of the said county, there to remain until discharged by due course of law — And, afterwards, to wit, on the 7th October 1825, at *a court held at &c. by J. S. [and others, naming them] justices of the peace for the said county, for the examination and trial of the said Miller for the said felony, and who had competent and legal authority to hold such court, -•-having heard and considered all that the said Zirkel, and the said Mowry, who instigated the said Zirkel to prosecute the said Miller, could say touching and concerning the said supposed offence, — then and there, to wit, at &c. on the said 7th October aforesaid, adjudged &c. that the said Miller was not guilty of the said supposed offence, and then and there caused the said Miller to be fully acquitted of the said supposed offence, and discharged &c. and the said complaint has not been farther prosecuted, but is wholly ended and determined — Wherefore the said Miller saith, that he is injured, and hath sustained damage &c.”
    Mowry, 1. demurred generally to the declaration, and 2. pleaded not guilty.
    Upon the demurrer, the court held the declaration good. And upon the trial of the general issue, there was a verdict for the plaintiff, for 500 dollars damages, and judgment was given accordingly.
    At the trial, Miller offered in evidence the record of his examination before the county court for the felony of which he had been accused, and of his acquittal; whereby it appeared, that the court by which he was examined and acquitted, was in fact held on the 7th November 1825, instead of the 7th October as stated in the declara tion ; whereupon Mowry’s counsel objected to the variance between the record, and the allegation of the trial and acquittal in the declaration ; but the court overruled the objection, and allowed the record to be read in evidence ; to which Mowry’s counsel filed exceptions.
    Mowry applied to this court for a super-sedeas to the judgment; which was allowed.
    Stanard, for the plaintiff in error.
    The demurrer to the declaration ought to have been sustained. For, 1. though *one who institutes a prosecution maliciously and without probable cause, or who conspires with another to institute such prosecution, is liable to an action, in the one case for a conspiracy, in the other for malicious prosecution ; yet to advise another to institute such prosecution, is not actionable. And 2. if to advise such a prosecution be actionable, it ought to be distinctly and expressly averred in the declaration, not only that the prosecution was malicious and without probable cause, but that the advice to institute it was given without probable cause. Filis v. Thelman, 3 Call, 3; Young v. Gregorie, Id. 446 ; Kirtley v. Deck, 2 Munf. 10 ; Marshall v. Bussard, Gilm. 9. Here, the declaration does not allege, that Mowry without probable cause, advised and procured Zirkel to institute the prosecution, but that he advised and procured Zirkel without probable cause, to institute it. The circuit court also erred, in admitting the record of Miller’s acquittal in evidence at the trial. The day of his examination and acquittal was material; and the variance between the record exhibited, and that alleged in the declaration, in this particular, was fatal. Pope v. Foster, 4 T. 'R. 590, is directly in point.
    Beigh, contra.
    He who advises, procures and instigates another to a malicious prosecution, is the author of the injury ; and it would he strange if an action will not lie against the real wrong-doer, but only against the instrument, who may perchance he innocent. Upon the general demurrer to the declaration, the court is to ascertain the substantial meaning- of it. This declaration may not be drawn with the most perfect logical precision : but, seeing that it charges, that Mowry advised, procured and induced Zirkel, falsely and maliciously, and without any probable or reasonable cause, to institute the prosecution, it is an over nice criticism to say, that it does not mean, that Mowry, maliciously and without probable cause, instigated Zirkel, but only that Mowry (innocently) instigated Zirkel, maliciously and without probable cause, to institute the prosecution. The allegation *is distinct, that the prosecution itself was without probable cause; which is enough. As to the variance between the record of the acquittal adduced, and the allegation of the acquittal; the declaration does not purport to recite the record, or to allege the acquittal with a prout patet per recordum : the substantial part of the allegation is, that Miller was finally acquitted before this suit was brought. In Pope v. Foster, as I infer from the report, the declaration purported to set out the record of the acquittal, in form ; otherwise, it seems strange, that the date of the acquittal, set out under a scilicet, should 'have been held material, the acquittal being alleged to have been, and having been in fact, before the action brought for the malicious prosecution.
    
      
      Malicious Prosecution — Probable Cause. — In Scott v. Shelor, 28 Gratt. 906, the principal case is criticised as to the rule laid down that the allegation in regard to probable cause relates to the state of the fact that the prosecution was without probable cause, not to the state of the defendant’s knowledge that there was no probable cause; that case (Scott v. Shelor) holding that probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. To the same effect, the principal case is cited in Spengler v. Davy, 15 Gratt. 388. But see foot-note to Spengler v. Davy, 15 Gratt. 388, and Vinal v. Core, 18 W. Va. 32, 41, citing the principal case.
    
    
      
      Demurrer. — See monographic note on “Demurrers" appended to Com. v. Jackson, 2 Va. Cas. 501.
    
    
      
      Malicious Prosecution — Declaration — Variance. —In Arthur v. Crenshaw, 4 Leigh 399, the principal case is cited to the point that where the time of the trial of a particular fact is not material, a variance from the date, in alleging the trial and the result, will not he material, although it is to be proved by the record, provided tire time be not alleged as descriptive of the record by means of a prout patet per recordum or otherwise.
      And in Taylor v. Bank of Alexandria, 5 Leigh 476, the principal case is cited to the point that a variance in dates under videlicet is not material. See monographic note on "Malicious Prosecution" appended to Guerrant v. Tinder, Gilm. 36.
    
   TUCKER, P.

The first objection in this case goes to the cause of action. It is said, that in every case for malicious prosecution the defendant is charged with active agency, and that an action for merely advising another to institute a prosecution, is not sustainable. Por my part, I can conceive nothing more direct than the charge here. It is, substantially, a charge that the defendant maliciously and without probable cause consulted with, advised and procured one-Zirkel, falsely and maliciously and without probable cause, to prosecute the plaintiff for felony. This procurement is surely actionable. The language of the declaration corresponds with the form of declaring in an action on the case in the nature of an action for a conspiracy ; and it was admitted in the argument, that the facts set forth, would be sufficient, if proved, in an action against two or more, to sustain such an action. If so, a charge of such advice and procurement by one, cannot less entitle the plaintiff to this action.

It is next objected, that from their con-nexion in the declaration, the words without probable cause, apply only to the act of Zirkel, not to the advice and procurement of the defendant. The charges of malice, and want of probable cause, are reiterated, and stand in connexion with both. *Yet, in truth, according to my view of the matter, the objection could not avail, if true. The law requires the plaintiff in this action, to set forth that the prosecution was without probable cause. But, as this is merely because no man can maintain an action for a malicious prosecution, where there was probable cause, it is obvious, that those words should be made to refer to the state of fact, as it respects the person prosecuted, and not to the degree of knowledge of that fact in the party prosecuting.

Then, as to the supposed variance. If the declaration had purported to recite the record of the prosecution, the variance might, perhaps, have been fatal. But that is not the case here. It merely alleges the fact that the plaintiff was acquitted on a particular day ; it does not profess to recite the record. Now, the material and substantive part of the allegation was, that the acquittal was before action brought. The date was immaterial. The case of Pope v. Foster, which was cited as in point, ha,s been overruled by the case of Purcell v. Macnamara, 9 East, 157. In this latter case, the action was for a malicious prosecution ; the plaintiff alleged in his declaration an acquittal on a particular day, but without a prout patet per recordum; the record, when produced, proved a different day : but it was held, the precise day was not material, the substance of the allegation being that the acquittal was before action brought. This case has been since approved, in Philips v. Shaw, 4 Barn. & Ald. 435, 5 Id. 964, 6 Com. Law Rep. 477, 7 Id. 318.

We are, therefore, of opinion to affirm the judgment.  