
    Kirtley v. Deck and Others.
    
    Argued Wednesday, April 25, 1811.
    Action on Case — Conspiracy—Declaration—Averments —Probable Cause. — In the action on the case for conspiracy, as well as in the action for malicious prosecution, an averment in the declaration that the prosecution was false and malicious, is not sufficient; but it must be averred to have been without probable cause.
    An action was brought in the district court of law holden at Staunton, by St. Clair Kirtley against Michael Deck, John Munger, jun. and Catharine, his wife, Martin Munger, Charles Deck and Christian Deck; the declaration charging, that they, “wickedly contriving to harass and distress the plaintiff, to tarnish his fair reputation, and to destroy his happiness, did falsely and maliciously conspire, agree, and combine together, for the purpose of preferring and supporting against him a false and malicious prosecution; that in pursuance of this unlawful purpose, the aforesaid Catharine Munger, by the advice and procurement of the other defendants, on the 6th daj7 of November, 1799, preferred, on oath, against the plaintiff, before Layton Yancey, a justice of the peace for the county of Rockingham, a false and malicious charge of a forcible attempt to have carnal knowledge of her body; that, in consequence of this charge, the plaintiff was bound in a recognisance to appear, and did appear, before the next court of Rockingham ’county, to abide their sentence; that the said court, after hearing the testimony of the defendants, or several of them, without deciding on the truth of the charge exhibited before the magistrate, bound the plaintiff in a recognisance to keep the peace for a year and a day; that, at the same court, the defendants, having not yet gratified their malice, or obtained the full object of their combination, procured an indictment to be submitted to the grand jury for the county of Rockingham, to which John Munger, jun. one *of the defendants, was subscribed, as the prosecutor, and the other defendants were sworn as witnesses; which indictment contained, in substance, the same false and malicious charg’e exhibited before the magistrate, viz. that on the night of the Sth day of November, 1799, the plaintiff committed an assault and battery on the said Catharine Munger, and forcibly attempted to ravish, or carnally know her; and which indictment the grand jury aforesaid, on the 19th day of November, 1799, found ‘not a true bill:’ the plaintiff, thus falsely, maliciously and cruelly conspired against, prosecuted and acquitted, of the heinous charge, by the finding of the grand jury, said he had received damages from this unlawful conduct of the defendants, to the amount of 10,000 dollars, and therefore brought his suit.”
    The suit abated as to John Munger, jun. by his death. The other defendants pleaded, jointly, not guilty. At the trial, a bill of exceptions to the admission, as evidence in the cause, of a record of Rock-ingham county court, (containing the indictment and finding of the grand jury,) was tendered - and sealed according to law.
    The jury found the defendants guilty, and assessed joint damages against them, to the amount of five hundred dollars.
    A motion was then made in arrest of judgment; 1st. On the ground of a supposed variance, between the record and the declaration ;-2d. ‘‘The declaration was substantially defective in not stating the want of probable cause”; 3d. “The jury had assessed joint, and not several damages, as, it was conceived, they ought to have done;” and, 4th. “By the plaintiff’s declaration, and the record therein mentioned, it appeared that the defendants had a probable cause for commencing their prosecution.” The court determined the law to be for the defendants; and “it was considered that the plaintiff take nothing by his bill, but, for his false clamour, be in mercy,’’ &c. *To this judgment the plaintiff obtained a writ of su-persedeas from this court.
    Wirt and Call, for the appellant.
    Wickham, for the appellee.
    The only point determined by the court, and that on which the argument principally turned, was, whether it was necessary to aver in the declaration the want of probable cause.
    The counsel for the appellant
    insisted, 1st. That, if it was settled in Ellis v. Thil-man,  and Young v. Gregory,  that such averment is necessary in the action for malicious prosecution, the law was otherwise with respect to the writ of conspiracy, or action on the case in the nature of a writ of conspiracy'. This action is founded on the act of assembly against conspirators,  copied from stat. 23 Edw. I, in which the words “falsely and maliciously” are used, and not the w'ords “without probable, cause.” The gist of the action is the conspiracy, united with falsehood and malice,  The better opinion seems to be, that the writ of conspiracy, which is a formed action, requires an indictment and acquittal; but the action on the case, in the nature of the writ of conspiracy, will lie without a bill found, or preferred,  This distinction is admitted in 4 Burr. 1972, one of the cases on which the leading case of Ellis v. Thilman was decided. In 1 Saund. 223, the declaration against three persons for a conspiracy, is exactly similar to the one now in question.
    On principle; the rule in the action for malicious prosecution is founded on this, that, if there be a probable cause, individuals ought not to be deterred from prosecuting. But how will this reason apply to the case at bar? that if there be a probable cause to conspire, individuals ought not to be deterred from conspiring, and that falsely x'and maliciously ! A conspiracy implies, ex vi termini, that the object against whom it is formed, is innocent; and when to this conspiracy, “false and malicious” are added, and a prosecution flowing from that source, every thing essential to the charge is averred.
    2. Even in the action for malicious prosecution, the averment of “want of probable cause” is not necessary, totidem verbis. In Young v. Gregory  it is admitted that equipollent expressions are sufficient; and from 10 Mod. 214, and Gilb. Rep. K. B. 185, (same case more fully reported,) it appears that the words “falsely and maliciously” are equivalent to “without probable cause.” Wherever a man prefers an indictment containing slander on the face of it, or putting the indictee to trouble and expense, this action lies; unless the indictor can justify; and this must come from his side,  Malice is the gist of this action. Where one sues another without probable cause, he is not subject to an action, unless malice appear, the payment of costs being sufficient punishment; but where the original suit was falsely and maliciously brought, an action for it lies, 
    
    In Ellis v. Thilman the doctrine on the subject was not fully before the court. The cases cited did not support the position that want of probable cause must be alleged in the declaration. In 6 Mod. 25, 73, it was held that, if there were a probable cause, the action would not lie. The conclusion to be drawn from 4 Burr. 1974, is only that want of such cause must appear at the trial. In 1 Term Rep. 544, the question was not presented by the case before the court; the want of probable cause being actually alleged in the declaration. 2 Term Rep, 226, was not a case of the kind at all; but turned upon the necessity of an averment that the prosecution had terminated. The decision of Ellis v. Thilman is, therefore, not supported by the authorities on which it rested; neither did that case resemble this.
    3. Under the acts of jeofails, the jury having found the *prosecution malicious, the court ought to presume that every thing necessary to justify such a verdict was proved before them.
    Wickham, contra, observed, that he considered this case as settled by the two cases of Ellis v. Thilman, and Young v. Gregory. The question is not whether the verdict was according to evidence; but whether the declaration was sufficient. The distinction attempted to be drawn between conspiracy and malicious prosecution, is supported neither by reason nor authority. In point of moral turpitude and public policy, what difference can exist between a prosecution by one, or by many? As to precedents, they prove directly the contrary. The cases cited on the other side relate to the writ of conspiracy, or to indictments for conspiracy; but not to case, in the nature of a writ of conspiracy, which this action is.
    The writ of conspiracy, at common law, lay only where the prosecution was for treason or felony ; and whether at common law, or since the statute, there could be no recovery, unless the plaintiff was acquitted by the verdict of a petit jury.  The declaration here would clearly, therefore, not be a good one, if this were an action of conspiracy. In 10 Mod. 219, Chief Justice Parker says, “That actions of conspiracy are the worst sort of actions in the world to be argued from, for there is more contrariety and repugnancy of opinions in them, than in any other species of actions whatever. ’ ’
    The argument, by analogy, from cases relative to indictments for conspiracy, will not hold; for the action is more discouraged than the indictment; because the indictment is exhibited by a high and responsible officer, and must be found a “true bill” by the grand jury, before any proceedings can be had upon it; whereas the action may be, and often is, brought for corrupt purposes ; for which reason it is usual to deny the plaintiff a copy of “the proceedings on which he means to bring suit,  It does not follow, therefore, that because the averment of want of probable cause is not necessary in the indictment, it may be dispensed with in the action.
    The gist of the action in this case is not the conspiracy, but the damage sustained by the plaintiff in consequence of the malicious prosecution. If the gist of the action were the conspiracy, judgment could not go against one only, the rest being acquitted; but the rule is well established, that this may be done, 
    
    In substance, then, there is no distinction between this, and the action fot a malicious prosecution ; the only difference being that this is against several, and that against one only. In that action it has been settled, ever since the time of Lord Holt, that the words “without probable cause,” or words equivalent, are essential. In 1 Ld. Raym. 375, “absque rationabili causa” were used in the declaration, and passed without objection, the p'oint not having been made: but in Young v. Gregory, this court decided that “without justifiable cause” was not sufficient. The modern precedents are all drawn with the words “without probable cause, ’’
    
    Curia adv. vult.
    
      
       Fur monographic note on Conspiracy, see end of case.
    
    
      
       Actions on the Case-Conspiracy — Declaration— Averments — Probable Cause. — The principal case— which was an action on the case for a conspiracy7 in preferring, etc., a malicious prosecution for a felony — held that the declaration was radically defective because it did not aver that the prosecution was without probable cause; and that it was not cured by the verdict. Por this holding, the principal case is cited with approval in Spengler v. Davy, 15 Gratt. 381; Burkhart v. Jennings, 2 W. Va. 251; Holliday v. Myers, 11 W. Va. 289; foot-note to Young v. Gregorie. 3 Call 416.
      In Marshall v. Bussac. Gilm. 9, 14, it was held on the authority of the principal case and Young v. Gregorie, 3 Call 446, that 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.
      See further, monographic note on “Malicious Prosecution” appended to Guerrant v. Tinder. Gilm. 36. The principal case is also cited in Farmers’ Bank v. Clarke, 4 Leigh 609.
    
    
      
       3 Call, 3.
    
    
      
       Ibid. 446.
    
    
      
       1 Rev Code. 30.
    
    
      
       Rastall, 121, 122. 123; Lill Knt. 28; 8 Went. 310; Vent. 804; 1 Lev. 62; Sup. to Tin. vol. 2, p. 210, 211; 1 Salk. 174; 1 Str. 193: 9 Co. 66, b.
    
    
      
       Sir ffm. Jones, 93, 94: Cro. Car. 15, pi. 6; 2 Vin. 21, pi. 16, 17.
    
    
      
      0 3 Call. 452.
    
    
      
      fe) 2 Vtn. 27, pi. 3.
    
    
      
      Oi) Carth. 416, Roberts v. Saville and others.
    
    
      
       3 Call, 3 — 5.
    
    
      
       Sir T. Rayrn. 176.
    
    
      
       1 Sauna. 230, a; 3 131. Comm. 127; 9 Co. 56, b; Rastall, 121, 123, 125.
    
    
      
       3 Bl. Comm. 126; 1 Ld. Raym. 253.
    
    
      
       1 Ld. Raym. 378.
    
    
      
       3 Bl. Comm. 126; 1 WÜS. 210; 1 Saund. 230 ; 2 Show BO; 6 Mod. 169; 1 Bac. Abr. (Gwill. edit.) 94.
    
    
      
       2 Chilty, 248, 249.
    
   Wednesday, March 6th, 1811. The judges pronounced their opinions.

JUDGE TUCKER,

after stating the case, (in which i he mentioned the four errors assigned in arrest of judgment,) proceeded as follows:

In this court, Mr. Wickham took a fifth objection, that this action would not lie against husband and wife together; but Fitzh. N. B. 116, is expressly to the contrary, and the distinction there taken is,' that it will not lie against husband and wife alone, because they are but one person; but against husband and wife and a third ^person, it well lieth. Mr. Wirt, for the appellants, very properly contended that the first and fourth of these reasons assigned for arresting the judgment were improper, since the court below could not take notice of the matter contained in the bill of exceptions, upon which the same court had already finally decided; a bill of exceptions being in the nature of an appeal, from the judgment of the court, where the cause was tried, to a higher tribunal. In this he was certainly correct; but, as the whole record is now before this court, we are (if it be necessary) to examine these points as well as the others. As the argument, here, has turned almost altogether upon ' the second, the want of averment of probable cause, I shall consider that first. That these words are neither necessary in an' indictment for a conspiracy, nor in the ancient action, or writ of conspiracy, appears from Rastall’s Entries, 123 — 126, as to indictments, and in F. N. B. 114 — 116, as to the ancient writ of conspiracy, And 1 Strange, 193, shows they are equally unnecessary in an information. 9 Co. 56, (The Poulterers’ Case,) was an action on the case, like the present, for a combination, confederacy and agreement between the defendants falsely and maliciously to charge the plaintiff with a robbery, and to procure him to be indicted, &c. There is no notice of this averment in that case; yet the plaintiff, upon good consideration, (as Sir Edw. Coke expresses it,) had judgment. .No such averment appears either in the case of Cox v. Wirral, Cro. Jac. 193, where the declaration was held good; or of Smith v. Crashaw and others, 3 Cro. 15, or Bagnal v. Knight, ibid. 553. And even in a qui tam action on the statute of Hen. VI. c. 10, there is no such averment. Rast. Entries, 126. In Smith v. Drinkwater, 1 Keble, 627, a motion was made in arrest of judgment for want of the averment of jurisdiction ; but the court said that, after a verdict, they would not intend the want of jurisdiction, and the plaintiff had judgment. In Skinner v. Gunton and others, *(21 Car. II.) 1 Saund. 228, there is an averment, that the defendant held the plaintiff to bail, without any just cause. This is the first averment that I have found in any declaration, in this action, at all similar to the present. Saunders moved in arrest of judgment without noticing this averment, or the distinction, so much pressed since, between a just and a probable cause. The plaintiff had judgment. In the case of Box v. Taylor, (32 and 33 Car. II.) 2 Shower, 154, “the action was for a false and malicious prosecution of-a suit in an inferior court; the declaration says only absque justa causa, and held naught; because it might be with a probable cause for the suit, and this action will not lie; absque aliqua causa will do; or, sine causa justa, vel probabili; but absque justa causa is not good, for the reason aforesaid, and judgment for defendant.” In Saville v. Roberts, (10 Wm. III.) 1 Ld. Raym. 374, the prosecution was alleged to be nequiter et malitiose, and sine causa rationabili, and judgment -for the plaintiff. In Muriell v. Tracy, at nisi prius, (3 Ann.) 6 Mod. 169, an exception was taken, at the trial, to the declaration, because it was not laid that the warrant, upon which the plaintiff was arrested, was taken out without probable cause. Holt, Ch. J., upon this exception, recommended to the parties to withdraw a juror; for he held the declaration ill, for not alleging it to have been without probable cause. In the case of Jones v. Gwynn, which occurred about nine years afterwards, (12 Ann.) 10 Mod. 214, more satisfactorily reported by Ld. Ch. Baron Gilbert, in his Reports, 185, the question, as to the necessity of such an averment, came on upon a demurrer to the declaration ; in which one of the reasons for the demurrer is, that it is not alleged that the indictment was procured by the defendant to be exhibited sine aliqua rationabili causa. Ld. Ch. J. Parker, (afterwards Earl of Macclesfield and Lord Chancellor,) in delivering the opinion of the court of K. B. is reported to have expressed *himself as follows: “As to the declaration, ad primam, I do agree, it is a circumstance necessary to maintaining of this action, that the indictment was preferred without cause.” “For. if there were what is usually called a probable cause; nay, if there be a fair and reasonable account given, how a complaint came to be made before a magistrate which produced an indictment, though it fell short of probability of guilt in the party accused, this action will not lie. M. 5 Jac. B. R. Cox v. Wirral, Cro. Jac. 193, pi. 19; Yelv. 105; Roll. Abr. 113, (Q) pl. 2. “Action for maliciously preferring against the plaintiff an indictment for the rape of one A. an infant, whereupon he was arraigned and acquitted: the defendant pleads that A. was his daughter, of the age of eight years, and came to him with tears, and complained that the plaintiff had ravished her; that, thereupon, he immediately complained to a justice of the peace, and carried her with him; that the justice sent for the plaintiff, and, upon examination of the cause, bound the plaintiff to appear at the next assises, and the defendant to prosecute him; whereupon the defendant went to the assises, and, to save his recognisance, preferred an indictment of rape against the plaintiff, which was found, and that he carried his daughter to the assises, prout ei bene licuit.”

“In this case, though there was no averment that any rape was committed, it must be understood, as Rolle, in express terms, puts it, that none was committed.

“'Though it would not be a just cause to arrest a man for felony, without averment that a felony was committed; though, as Mr. Justice Croke’s opinion was, the father seemed too credulous to cause a bill of indictment to be preferred upon the complaint of so small a girl; yet the justification was held good. For the defendant shows, how, by degrees, lawful and justifiable he came to exhibit the indictment. 1st. There was the complaint of his daughter, whom nature forces him to pity, and tenderness *of age frees from suspicion of malice; 2d. He hereupon bruits it not abroad, but applies in a course of justice; and a father could do no less; 3d. He then prefers an_ indictment for safety of his recognisance’; 4th. The crime complained of is what is usually committed in secret; and, on complaint of his daughter, though it be but conjecture, he might well exhibit a complaint to a justice; so that I hold this action is not maintainable, but where there is no probability of guilt, •or reasonable cause, nor honest occasion for complaint; but, yet, though this must be the case to maintain the action, it is not necessary to be expressly alleged in the declaration, nor need the plaintiff use the words sine probabili causa, or sine ration-abili causa.” Gilb. Cas. 186 — 188.

After such an express decision upon the point by the court of K. B., delivered by a judge of Lord Macclesfield’s high standing and reputation, as the opinion of that court, and upon a special demurrer, it seems rather extraordinary that the point should have been stirred again; nor, in fact, have I found any subsequent case in England, in which it has been drawn in question, either by a demurrer, or by a motion in arrest of judgment, except the case of Morgan v. Hughes, 2 T. R. 225. Nothing that is said in either of the cases of Rex v. Spraggs, 2 Burr. 993, (1 Bl. Rep. 209, S. C.) nor in Rex v. Rispal, 3 Burr. 1320, nor in Brown v. Chapman, ibid. 1418, (1 Bl. Rep. 427, S. C.) nor in Farmer v. Darling, 4 Burr. 1971, nor in Ludley v. Mott, 1 Wils. 210, nor in Sutton v. Johnstone, 1 T. R. 493, has any relation to the necessity of such an averment in the declaration ; but they all show that the plaintiff must prove the want of probable cause upon the trial. But the mere rejection of the bill of indictment by the grand jury to whom it was preferred, has been held to amount to such proof. In the case of Morgan v. Hughes, 2 T. R. 225, Buller, J., alone spoke to this point. His words are, “The grounds of a malicious prosecution are, 1st. That it was done maliciously *and, 2d. Without probable cause. The want of probable cause is the gist of the action; but that is not stated here; for it should have been shown upon the record that the prosecution is at an end.” It would seem, then, as if his opinion were that if it had appeared upon the record that the prosecution was at an end, that circumstance might have supplied the want of a positive averment that the prosecution was without probable cause. If this be in reality his meaning his opinion may be well reconciled to that of Lord Macclesfield, where he says, “I do agree it is a circumstance necessary to maintaining of this action, that the indictment was preferred without cause.” But what he (Lord Macclesfield) says afterwards clearly shows, he did not mean to say it was necessary to be expressly alleged in the declaration, but the direct contrary. However, from the whole current of the later authorities in England, as also from the several books of precedents, it seems to be now fully agreed and understood there, that the want of probable cause is the gist of the action. Lord Mansfield and Lord Loughborough, in the celebrated case of Johnstone and Sutton, say, “that the essential ground of an action for a malicious prosecution is, that a legal prosecution has been carried on without any probable cause. We say this is emphatically the essential ground ; because every other allegation may be implied but this; but this must be substantially and expressly proved, and cannot be implied.” They proceed to say, “From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied. From the most express malice, the want of probable cause cannot be implied.” 1 T. R. 544, 545. In the case of Ellis v. Thilman, 3 Call, 3, Judge Lyons 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. In that of Young v. Gregory, (ibid. 446,) an averment that the prosecution (which was *an attachment in a foreign country) was instituted without any legal or justifiable cause, was held not to amount to an averment of the want of probable cause. Judge Lyons, in that case, said, that he did 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 he rather inclined to. think the words justifiable cause are of that kind. But he thought the declaration defective on another ground, and pressed the point no further. These decisions have gone abroad among the gentlemen of the profes-sion, and they will be now better advised as to the necessity of this averment, than they could have been from the mass of conflicting opinions upon the subject, which occur in the English books. I think a uniform practice, and a uniform course of decisions upon practical points, of too much importance not to subscribe cheerfully to the former decisions of this court; and am, therefore, of opinion, that the judgment be affirmed. I therefore consider it unnecessary to notice the other points in the case, as this alone must decide it.

JUDGE ROANE.

In the cases of Ellis v. Thilman, and Young v. Gregory, this court decided that, in an action on the case for a malicious prosecution, the want of probable cause is of the very gist, of the action; that its non-existence must be averred in the declaration; and that the want of this averment is not cured by a verdict. The most that was admitted by any of the judges in those cases was, that similar or equipollent expressions might be sufficient. Nothing to impugn this principle is to be found in any modern case that I have seen. The case of Farmer v. Darling was relied on, in the argument, for that purpose; to show that it was necessary to prove the want of such cause on the trial; whence it seems to be inferred that it was not necessary to aver *it in the declaration : but that case falls far short of. that purpose. It came up on a motion for a new trial, and the sufficiency of the evidence to support the action was particularly discussed by the court; but nothing was said by the court respecting the declaration, unless, indeed, that the contrary of what is contended for by the appellant’s counsel is to be inferred from Lord Mansfield’s introduction to the case, which runs in this manner: “This action is for a malicious prosecution without a probable cause.” If, therefore, I were to infer any thing from that case, as relative to the declaration, it would rather be to conclude (for the declaration is not reported) that it expressly averred the want of probable cause. This idea is again corroborated by its being agreed ,by the whole court in that case, ‘ ‘that malice and the want of probable cause must both concur as the grounds of this sort of action.” Both these grounds being necessary to entitle a plaintiff to recover, I should, upon the general principle, (and independently of any authorities whatsoever,) infer that they must both be stated, as well as proved, to entitle the plaintiff to a judgment.

An attempt is made, however, to withdraw the present declaration from the effect of these decisions, by placing the action upon the ground of the writ of conspiracy at the common law, and -by contending that the conspiracy in this case, and not the bringing of the action, is the essential part of the plaintiff’s complaint. The case of Skinner v. Gunton is directly in the teeth of this position. It was there held, in an action against three, which is pretty similar to the one before us, that the action was “an action' on the case,” and that, 'therefore, (aliter in a writ of conspiracy,) judgment would lie against one defendant, though the other was acquitted; and that the .“substance of the action was the undue arresting of the plaintiff, and not the conspiracy.” This idea of the court is entirely supported by a note of the learned editor of the late edition of Saunders’s Reports; byBuller’sN. P. *p. 14; by 1 Bac. 94, and other authorities; which also lay it clown, that it is the damage sustained by the plaintiff by the bringing the action, and not the conspiracy, which is the ground of the action; and that the insertion of'the words “per conspirationem inter eos hab-itant” does not convert the action into a formal action of conspiraos', but it nevertheless remains an action on the case; that those words are mere surplusage, intended as matter of aggravation, and are, therefore, not necessary to be proved to support the action. This is further shown by its being also held, as aforesaid, that, in this action, all the other defendants may be acquitted except one, and he found guilty', notwithstanding the words “per'con&pira-tionem.”

The appellant’s counsel are, therefore, mistaken in their aforesaid idea relative to the character of this action: it is substantially the same, as to the point in question, with the common action for a malicious prosecution, and stands on a common foundation with it, in respect of' the necessity of the averment now in question. I do not deny but that there may have been considerable contrariety and diversity in the old books and entries on the subject; but I take it that this averment is, at this day, a sine qua non. in actions for malicious prosecution, and must equally be so in the action before us.

On this ground I concur with the district court in arresting the judgment, and am of opinion that its judgment should be affirmed.

JUDGE FLEMING.

The declaration in this case being insufficient to maintain the action, it seemed to me unnecessary to consider the other errors filed in arrest of judgment; especially as the whole case has been fully discussed by one of the judges who has preceded me. Besides the English authorities cited on the occasion, we have two decisions of this court in point? and founded ^principally on those authorities: one for a malicious prosecution in a criminal, and the other in a civil case. In the first, Ellis v. Thilman, the declaration stated that the defendant, “without any just cause,” prosecuted the plaintiff on a charge of his having felo-niously taken a negro, the property of the defendant. In the other case, of Young v. Gregory, the declaration stated that the defendant, .without any legal or justifiable cause, did attach, or cause to be attached, at Dunkirk, fifty hogsheads of tobacco, or the proceeds thereof, the property of the plaintiff. And this court, in both cases, adjudged that, for want of an averment in the declaration that the prosecution was without probable cause, the action could not (as the want of probable cause is the gist of the action) be sustained. I therefore concur in the opinion, that the judgment of the district court be affirmed.

Judgment unanimously affirmed. 
      
       See also Salk. 174; 2 Ld Raym. 1167; 3 Ld. Raym. B3; 2 Burr. 998; 1 Bl. Rep. 209.
     
      
       Sir wm. Jones’s Rep. 93, S. C. And although a motion was made in arrest of judgment, yet no notice was taken of the omission of such an averment.
     
      
       Sir T. Raym. 176. S. C.
     
      
       1 Salk. 13, and Carth. 416, S. C.
     
      
       4 Burr. 1973.
     
      
       1 Saund. 230.
     