
    Young v. Gregorie and Another.
    [Tuesday, November 15, 1803.]
    Pleading and Practice — Malicious Prosecution — Want of Probable Cause. — In an action for a malicious prosecution, the declaration must aver the want of probable canse.
    Proceedings in Foreign Country — Proof—Depositions.  —[Transactions respecting civil suits in foreign countries, may be proved by depositions, &c. 1
    Young brought suit in the Borough Court of Norfolk, against Maitland and Gregorie, for levying an attachment on his property in Erance without cause, the plaintiffs and defendant being all inhabitants of this country. The declaration is, “for that the said defendants, at Dunkirk, which is within the jurisdiction of the Court of the Borough aforesaid, did, maliciously, and without any legal or justifiable cause, attach or arrest, or cause to be attached or arrested, fifty hogsheads of tobacco, or the proceeds thereof, the property of the plaintiff, and the same so attached, or arrested, did detain or cause to be detained; wherefore, he saith that he is injured, and hath sustained damage to the amount of two thousand pounds ; wherefore, he brings suit, &c.” Plea, not guilty, and issue.
    The plaintiff upon the trial, did not produce any copy of the attachment and proceedings under it, but offered depositions and letters to prove it: Which the Court allowing to go in evidence to the jury, the defendants filed a bill of exceptions to their opinion. Verdict and judgment for the plaintiff. The defendants ^appealed to the District Court, where the judgment was reversed, because the “Borough Court gave it as their opinion, that the evidence, in the bill of exceptions mentioned, was proper to go to the jury; whereas, it was improper, being hearsay evidence, except what was derived from the appellant’s own letter; and because the attachment in the proceedings mentioned, or an authenticated copy thereof, was the best evidence, and ought to have been produced.” To which judgment of reversal, Young obtained a writ of supersedeas from this Court.
    Wickham, for the appellant.
    The question was, whether the evidence was proper for the jury, or not? Two objections may, perhaps, be raised: 1. That the record spoken of was not produced. 2. That letters from the plaintiff and others were offered to the jury.
    The copy of the record was not necessary; as it was a thing spoken of, and admitted, on both sides. Independent of that circumstance, however, it does not appear; that it was a matter of record: For, all countries have not Courts of record; and there was no proof made of any such, in the present case. Bui, if there was, yet, as it happened in a foreign country, the plaintiff was at liberty to prove it by other means. [Walker et al. v. Witter, ] Dongl. 1. A judgment of a foreign Court has no higher dignity than a debt by simple contract. And it would be very inconvenient, if the plaintiff must, in all cases, produce the records of a foreign country; as it, frequently, might not be possible for him to procure copies, from a variety of causes over which he could have no control. For instance, the garnishee might refuse to inform him of the Court in which the proceedings were instituted, or the country might be in such a situation, from revolution or otherwise, that it would not be possible to obtain them. The matter of the suit was certainly actionable; for, although done in a foreign country, the slander necessarily spread itself, which is a proper foundation of an action. Schwartz v. Thomas, 2 Wash. *167. The letters were proper evidence, as leading to the introduction of this testimony, and tending to shew its effect abroad.
    Hay, contra.
    The declaration does not state positively, whether the defendants arrested the tobacco, or the proceeds, but merel3r that he did one, or the other. Neither does it state, that the defendants took the property by legal process; of course, it was only tresl pass; and therefore, trespass, and not case, was the proper action. The words ax'e, attached, or arrested the property: which latter word, arrest, when applied to the person, may be without process; and, therefore, when applied to property, may be the same, although the word attach might mean more. The declaration, as before observed, does not state precisely what was done, which is a great defect; for, it ought to have been precise, in onler that the defendant might know the exact charge meant to be urged against him. It was important to say, whether the attachment was of the tobacco, or its proceeds; for, the first might have been more injurious than the latter. However, let these points be as they may, still no cause of action is shewn ; for, it is not stated that the attachment was at an end. But, there could be no cause of action, until the event of lhat proceeding was known. [Waterer v. Freeman], Hob. 267; [Morgan v. Hughes,] 2 T. R. 231; 2 Esp. 527; [Fisher v. Bristow et al.] Dongl. 215; [Robins v. Robins,] Salk. 15. Besides, the declaration does not aver the want of probable cause, without which there could be no action for a malicious prosecution. Ellis v. Thilman, ante, 3. Improper evidence was admitted upon the trial of the cause. In the first place, parol evidence of the attachment was received; whereas a copjr of the record ought to have been produced; as all civilized nations grant them: And, the act of Assembly supposes it. R. C. 160.' But, there is another objection to the evidence, namely, that the plaintiff was allowed to read his own letters to the jury; and, it is not important, whether they were pertinent to the matter in dispute, or not; for, still, they ought not to have been f read. [Bee v. Tapscott,] 2 Wash. 281. ' ' But, this is not *all; for, a letter from Gregorie and son was allowed to go in evidence to the jury, although it does not appear, by the record, that there was any connexion or agency to justify it.
    Wickham, in reply.
    Case, was the proper action; for, it appears that the seizure of the goods was by legal process. The word attachment necessarily implies it; and arrest may signify the same thing: It is like the ordinary phrase of the arrest of a ship; which is introduced into all policies of insurance. Besides, it is a legal word, appropriated to legal proceedings; and is not used in any other way, unless it be figurativelj': The distinction, contended for, is not sustainable; for, prima facie, the common meaning will prevail; that is to say, the word will be taken to mean, that it was done by legal process. It is immaterial, however, whether it be so or not; for, the charge in the declaration will suit either action, and, therefore, the want of form will be cured by the act of Jeofails.
    The declaration is certain enough; for, it comprehends an actual seizure of our property, whether that property, at the time, consisted in the tobacco or its proceeds. The Court will presume, after a verdict, that' evidence was given to the jury, that the suit was ended; and then the act of Jeofails will cure the supposed want of the allegation. There is no proof of the existence of a record of the attachment; and, therefore,- it was not incumbent on the plaintiff to produce a copy of it. The introduction of the plaintiff’s letters was not improper. It is frequently done in mercantile causes; and it was necessary in order to shew, that the plaintiff had drawn on Dunkirk for the money, and was disappointed : Which proves, that the letter from Gregorie and his son was also necessary, in order to shew that they refused to pay, when called upon to do so. As to the case of Ellis v. Thilman, it was not like this: Por, the words used there, *were just cause; which might be true, and the party not to blame either, as he might have had a probable cause. But, the words here are justifiable cause: Which are sufficient; for, it implies probable cause; since there could be no justifiable cause, without a probable cause. The one necessarily involves the other.
    Hay. The action should have been trespass ; and, if so, there is nothing in the declaration which will make it trespass instead of case. Contra pacem et vi et armis may be omitted; but, in other respects, it must have the character of trespass. If it be doubtful whether it be case or trespass, that alone is fatal. [Tarlton v. Fisher;] Dougl. 674. The want of probable cause, should have been stated in the declaration; and it is not supplied by the words justifiable cause. For, justifiable means the same thing with legal, and amounts to a plea in bar. 3 Black. Com. 306; 4 Black. Com. 178; Law Grammar, 3S6. But, it is admitted that the want of legal cause is not sufficient; therefore, neither will justifiable cause. Probable cause is ground for a suit of malicious prosecution. [Morgan v. Hughes,] 2 T. R. 231; [Reynolds v. Kennedy,] 1 Wils. 233; [Goslin v. Wilcock,] 2 Wils. 307; [Farmer v. Darling,] 4 Burr. 1974. Of course, those words must be inserted in the declaration, or else there is no cause of action. And the verdict will not cure the want of them. [Tarlton v. Fisher,] Dougl. 683; [Winston’s ex’r v. Francisco,] 2 Wash. 187.
    Wickham. If the declaration alleges a direct injury, it is trespass; if consequential, it is case. The present is of the latter kind: For, it is plainly inferrible that the injury was done through the intervention of the officers of justice. The attachment operated either on the effects, or on their proceeds; with this distinction only, that it does not hinder the sale, but merely prevents the paying over the proceeds. It is not like the case of Ellis v. Thilman, which only had the words just cause. But, here, the words are justifiable cause; -which are equal to probable cause: And, it is not necessary to insert the very words probable cause; for, *any which are tantamount will do as well: It was impossible to have sustained the suit, without shewing, on the trial, that the attachment was at an end; and, therefore, the omission to insert that fact in the declaration, is cured by the verdict. The cases cited on the other side, are not important. That from Hob. was decided before the statute of Jeofails was made. That from Salk, is a loose note of a dictum of Eord Holt, not entitled to much respect. And those from Dougl. and 2 T. R. were upon demurrers. But, independent of this, there are express authorities to shew, that it is cured by the verdict. 2 Vin. Abr. 30, 35; 10 Mod. 145, 210; Esp. N. P. 279, 280.
    Cur. adv. vult.
    
      
       Pleading and Practice — MalScSous Prosecution— Want of Probable Canse — The declaration, in a,n action for malicious prosecution, must aver the want of probable cause, and the want of this averment is not cured by a verdict. In support of this proposition, the principal case is cited and approved In Kirtley v. Deck, 2 Munf. 20, 21, 24; Marshall v. Bussard, Glim. 14; Spengler v. Davy, 15 Gratt. 396; Burkhart v. Jennings, 2 W. Va. 255; Holliday v. Myers, 11 W. Va. 289; Porter v. Mack, (W. Va.), 40 S. E. Rep. 463.
      See foot-note to Ellis v. Thilman, 3 Call 3; and monographic note on "Malicious Prosecution.”
      The principal case is cited in Farmers’ Bank v. Clarke, 4 Leigh 609.
    
    
      
       [Proceedings in Foreign Country — Proof—Deposit tions. — The principal case Is cited and approved in Hadfield v. Jameson, 2 Munf. 70, 78.
    
   ROANE, Judge.

In this case I am compelled to yield my impressions, relative to the real justice of the appellant’s cause, to the established principles of the law, as settled by successive and long existing decisions.

It is an action on the case for maliciously and without a justifiable cause, arresting or attaching the plaintiff’s goods at Dunkirk in France.

Tribunals of justice being instituted for the convenience and benefit of the people, it is a claim of right to prosecute a civil action, or proceeding; whatsoever the ultimate decision on it may be. It then only becomes culpable and actionable, when the party has instituted such proceedings from a corrupt motive, and without any ground or cause therefor.

Such is the general principle.

The decisions upon this principle have settled the law to be, that there must be an averment in the declaration of both malice, and the want of probable cause. Without the first, the motive is *not corrupt, however mistaken the party suing, may be: And where there is a probable cause for suing, the ingredient of malice cannot convert the act of suing into a culpable offence.

There is no position of the law more settled than this; and the existence of the one, and the want of the other, must be expressly averred, or supplied by equipollent expressions. The word justifiable, is not synonymous with probable. The latter refers to a standard within the reach of the person at the time, and determining the purity of his motives. The former refers to another criterion within his reach, and carrying with it no certain datum, from which we can decide upon the corruptness or purity of the motive.

I quote no particular cases justifying this result; but it has not been delivered without an attention to them.

The want of a statement, in the declaration, that the civil proceeding was terminated, is cured by the verdict: but the averment of the want of probable cause is of the very gist of the action, and the omission of it must overthrow the plaintiff’s declaration.

I therefore concur in opinion with the District Court, but upon a different ground. The evidence by them supposed to be hearsay, is clearly admissible and relevant. But, I give no opinion, whether we should presume the attachment to have been in a Court of record? Or, upon the necessity of producing a record, shewing its termination.

I think the judgment ought to be affirmed.

FLEMING, Judge.

The judgment of the Borough Court is certainly erroneous, but, for a reason different from that assigned by the District Court; because, I think the evidence was admissible, *as it related to proceedings in a foreign country; which, oftentimes, can be proved in no other way, than by depositions and testimony de hors the proceedings ; of which it is not always in the power of the party to procure copies. The real ground of error is, the want of an averment in the declaration, that there was no probable cause for the attachment; without which the plaintiff could have no cause of action; [Johnstone v. Sutton, in error,] 1 T. R. 544; because, a man is not liable to be sued for a malicious prosecution, unless the plaintiff shews that there was no probable ground for instituting the process. Probable cause, therefore, is the very gist of the action; and, being absolutely necessary to sustain the suit, it must be averred. The words, justifiable cause, do not supply the omission; because, there may not be a justifiable cause, and yet there may be a probable one; which must depend upon the complexion of things at the time the prosecution was commenced. Consequently, I am of opinion, that the District Court did right in reversing the judgment, but, the plaintiff should be allowed to amend his declaration.

CARRINGTON, Judge.

I think the evidence was admissible, to shew the injury which the plaintiff had sustained, and that the attachment was commenced without cause: Por, as the proceedings took place in a foreign country, it would be too rigid to insist upon copies, which perhaps could not have been procured. Therefore, the judgment of the District Court is not sustainable, upon the reasons assigned by them. But, for another reason, I think it ought to be affirmed. The judgment of the Borough Court was certainly erroneous, on account of the insufficiency of the declaration. It is completely settled, that, in a suit for a malicious prosecution, it must appear that there was no probable ground for the prosecution ; since the want of probable cause is the very gist of the action; and, therefore, it must be averred. This averment is not supplied, in the present case, by the words justifiable *cause; for, the latter mean no more than legal cause. And there might have been a probable, though not a legal cause. The first might depend upon appearances at the time; the last, upon the real state of the cause. The essential ground of the action, then, being omitted, the plaintiff cannot recover upon this declaration ; for,- it has been often decided, that if the gist of the action be not laid, a verdict will not cure the defect. [Rushton v. Aspinall,] Doug. 679; [Winston’s ex’r v. Francisco,] 2 Wash. 187; [Chichester v. Vass,] 1 Call, 83. The declaration would have been bad, upon demurrer, for another reason; namely, the omission to charge that the attachment was ended. [Fisher v. Bristow et al.,] Dougl. 215. But, that perhaps is aided by the verdict. However, the failure to lay the want of probable cause is decisive; and, therefore, I am of opinion, that the judgment of both Courts ought to be reversed, and judgment entered for the defendants.

LYONS, Judge.

Although there must, in order to ground this action, be a want of probable cause for the prosecution; and, although it is usual to say in the declaration, that there was no probable cause, yet I do not think it indispensably necessary, that those very words, and none other, should be used; for, any which are tantamount, and calculated to bring the probable cause fairly into issue, would be sufficient. And I rather incline to think the words justifiable cause, are of that kind; as they clearly admit of the evidence as to the want of probable cause. However, it is unnecessary to decide that point now; because, I am of opinion, that the declaration is defective for another reason; namely, that it does not shew, whether the attachment has been determined, or not; without which, it does not appear, whether the process issued without probable cause, or not; for, if the attachment should be finally supported by the Court in France, it would negative the idea, that it issued without a cause. It is, therefore, one of the main ingredients in the action. Of course, *it ought to be shewn ; and until that is done, the injury cannot be established. Bull. N. P. 12, 13; Dougl. 215. For these reasons, I am of opinion, that the Judgment of the Borough Court was erroneous; and not for those stated by the District Court; with whom I differ, as to the admissibility of the evidence. For, I think the evidence was proper, as it related to transactions, with respect to a civil suit in a foreign country; where the party might not have had it in his power to obtain copies, and the defendant’s letters had acknowledged the attachment. However, on account of the defect in the declaration, I concur that judgment should be entered for the defendants.  