#### Thomas Perdu *v.*Charles Z. Connerly.

In an action of malicious prosecution, the *declaration*charged “ that the defendant contriving and maliciously intending to injure the plaintiff, &e. procured *one F. C. Ruff*to appear before the defendant, a justice of the peace, and falsely and maliciously and without any reasonable or probable cause whatever, to make oath,” &c. Held sufficient, after verdict for the plaintiff, on a motion in arrest of judgment.

In the above allegation, the act done by *Ruff*is charged to have been false and malicious and without probable cause, and to have been *procured*to he thus done by the defendant maliciously. The defendant is liable for *Ruff’s*act as done by his *procurement.*

If it were necessary in this case to allege that the defendant knew that *Ruff*had no reasonable or probable cause for the charge, this is in effect charged when the defendant is charged with having of his malice procured a *false*and groundless charge to be made, and if defective, is aided after verdict.

*49The general rule of pleading is, that all the circumstances necessary for the support of the action should be stated in the declararation ; and in action against one for instituting a groundless and malicious prosecution, through the *agency*of a third person, the averments 1st, of *the agency*of the defendant in causing such third person to make a false charge ; 2d, the charge thus made; 3d, the arrest of the defendant, his commitment or enlargement on bail to answer the charge; 4th, the presentation of the bill to the grand jury and their action upon it; and 5th, the discharge of the plaintiff, and that the prosecution was thus ended, are all that are necessary, and are sufficient.

*Before O’NEALL,*/., *at Newberry, Fall Term,*1838.

This was an action against the defendant, for causing a groundless prosecution to be set on foot against the plaintiff, for stealing a pair of martingales. The evidence on the trial and the questions made in the case, will be seen by the following report of his honor, Mr. Justice O’Neall.

*“*It appeared that the plaintiff had lived with the defendant; that while living with him, on the day of a general muster at Newberry Court House, the plaintiff wished to buy some articles of merchandize; that the defendant directed F. C. Ruff & Co. to let him have a hat and bridle. One witness proved that the plaintiff was examining the martingales, and-held them up to the merchant, Ruff, or his clerk, and told him if he would take the defendant for pay, he (the plaintiff) would take them: the reply was, that he (the defendant) would be taken. Another witness proved that while the plaintiff was looking at the martingales, the defendant came in, and asked if he was getting the martingales there ? he said yes: he (the defendant) then told him to get them there or at the next house: at last he told him to get them there, (i. e. at Ruff’s,) and to stay there until he came back, and they would, go on home together. The plaintiff produced and gave in evidence a bill, “ C. Z. Connerly for Perdu, to F. C. Ruff & Co,” for the hat, bridle, and martingales, receipted by Connerly, on the 17th September, 1836, from the plaintiff. It appeared that a few days before Connerly received payment from the plaintiff for the articles got by him of Ruff, including the martingales, he went to Ruff to obtain from him his bill, to enable him to settle *50with the plaintiff, who was about quitting his employment; that on referring to his books, Ruff found that he had only charged the hat and bridle. The defendant said that the plaintiff, had a pair of martingales, which he believed he got from that store. Ruff said he told defendant that he had not sold them, that the plaintiff had not got them from him, and that he would not have any thing for them. At the request of the defendant, he put down the martingales-at the foot of the bill, but placed no price against them. When the defendant produced the bill to settle with the plaintiff, he asked him if he got the martingales from Ruff, he hesitated a moment, then said yes. The martingales were hunted up to ascertain the price : Connerly placed the price opposite to them, in the bill; added.it up, and received from the plaintiff the amount. On the 23d of Sept, the defendant, who was a justice of the peace for Newberry district, applied to Ruff to make oath that the plaintiff had stolen the martingales; this he refused to do, until the defendant agreed to carry on the prosecution, and that he (Ruff) should be put to no trouble about it. The oath was then made before the defendant, who issued his warrant, and under it the plaintiff was arrested. Ruff and his clerk, Saxon, both said that they did not sell the martingales to plaintiff; but both said many persons were in the store during the day, and that they could not recollect every article sold, nor the person to whom sold. Ruff had another clerk, Nicholson, he was that day on parade, and Ruff and Saxon thought he had not returned to the store when the plaintiff was trading with them. The plaintiff, on some occasion, speaking of the defendant’s conduct, said, in one sense he did not blame him, in another he did; by which he meant that he did not blame him for issuing his warrant as a magistrate ; on another occasion the plaintiff said he had no objection to leave the matter to arbitration, as the defendant had done no more than he was obliged to do: this conversation had reference again to his official act and duty. The plaintiff proved a good . character. A bill of indictment against him for larceny was preferred' to the grand jury, who returned * no bill.’ He was discharged by the court from his recognizance, and thereupon this action was brought.

*51I instructed the jury, that to find for the plaintiff, they must be satisfied that the defendant caused the prosecution to be set on foot, and that the prosecution was so set on foot without any reasonable or probable cause. If there was an absence of probable cause, the law implied that the prosecution was malicious. What constituted probable cause was, I told the jury, a question of law; whether it existed, would be a question of fact. I defined probable cause to be, that which would create in a reasonable mind a belief that the charge was true. I put the question distinctly to the jury, “ did the defendant, from the facts within his knowledge, have any reasonable or probable cause to believe that the martingales were stolen ?” Upon this question, I summed up the evidence ¿gainst and in favor of the defendant, and left it to the jury, as fairly as I was able, withholding any distinct expression of my opinion, which certainly was in favor of the plaintiff. I said to the jury, that if they should believe that the defendant, without any reasonable or probable cause, caused the indictment to be set on foot against the plaintiff, then he would be entitled to recover: how much, was for them to say. The damages were wholly in their discretion.

In conclusion, I said to the jury that, in doing justice, they ought to remember mercy, and not strip the defendant of his all: enough to reinstate the plaintiff, and teach the defendant to pursue a different and a better course for the future, would answer all the ends of justice. It is to this part of my charge, which was to save the defendant from too severe a verdict, and which certainly had the effect to diminish the damages found, that the' defendant’s third ground applies. How counsel who hear a charge, and who ought to remember it in substance, even if they do not take notes of it, could so misrepresent it, as that ground does, it is difficult to conceive.”

The jury found for the plaintiff $500 damages. The defendant appeals in this case, and now moves the court of appeals in arrest of judgment, for a nonsuit and new trial, on the following grounds: 1. In arrest of judgment: because the declaration does not make such a case as will entitle the plaintiff to recover. *2.*For a nonsuit and new trial: because, from the plaintiff’s own *52showing, there was sufficient evidence that there was probable cause for the prosecution. 3. Because, the court charged the jury in conclusion, without qualification, that they must find such a verdict as would not strip the defendant of all he was worth, but that would reinstate the plaintiff, and teach the defendant to pursue a different and a better course. 4. Because, the verdict was contrary to law and evidence.

Curia, per O’Néall, J.

The ground in arrest of judgment is a very general one, and under it, the counsel has presented many objections. It will hardly be necessary to follow him through them all. They may be classed under two heads — defects in substance, and in form. As to the last, if there be any such, (which I have been unable to discover,) it will be enough to say, that all such are aided by verdict. As to the first, I hope to be able, in a very summary way, to satisfactorily dispose of them. Under this head, the defendant contended, 1st, that as the plaintiff had set out the information made by Ruff, charging the felony, he showed good cause for the prosecution, and therefore he had stated himself out of court. If the plaintiff had been guilty of the egregious folly by his record to admit that information to be true, or ■ that the defendant confiding in it, had set on foot the prosecution, then this objection would have been-fatal: but, on looking at the declaration, it appears that it charges that the defendant contriving and maliciously intending to injure the plaintiff, &c. procured one F. C. Ruff to appear before the defendant, a justice of the peace, and falsely and maliciously, and without any reasonable or probable cause whatever, to make oath, áre. In this, the act done by Ruff is charged to have been false, malicious and without probable cause, and to have been procured to have been thus done by the defendant, maliciously. There is nothing like an admission of probable cause in this. The defendant is liable for Ruff’s act, as done by his procurement; for, in trespass, all who are concerned in any way, are principals. *2.*It was contended that it was necessary to allege that the defendant knew that Ruff had no reasonable or probable cause for the charge. This is in effect charged when he is charged with having of his *53malice procured a false and groundless charge to be made. But if it is not sufficiently charged, the proof was ample to that point on the trial, and after verdict a defective allegation will be aided. See note *d.*2 C. P. 251-2. 3. It was supposed that the description of the indictment was not sufficient. The general rule of pleading is, that “ all the circumstances necessary for the support of the action should be stated1 C. P. 255. What circumstances were necessary to be stated in this case ? 1st, The agency of the defendant in causing Ruff to make a false charge; 2d, the charge thus made: 3d, the arrest of the defendant — his commitment, or enlargement on bail, to answer the charge: 4, the presentation of the bill to the grand jury — their action by *ignoring*it: and 5th, the discharge of the plaintiff, and the averment that the prosecution was thus ended. This declaration contains all these things ; and on being read consecutively, we know that the indictment was presented on the charge made by Ruff: for, it is described thus: “ a bill of indictment was presented on the charge aforesaid.” In setting out a fact of this kind in the declaration, no greater degree of certainty than “ certainty to a certain intent in general,” could be demanded: 1 C. P. 237. That which “ upon a fair and reasonable construction may be called certain, without recurring to possible facts which do not appear,” is the degree of certainty meant and required. Test the declaration by this rule, and read it, as I have said already, consecutively, and all uncertainty in the description is at an end.

*Herndon*and *Caldwell,*for the motions.

*Fair*and *Pope,*contra.

This court has been unable to discover any error in the charge of the judge below. The facts went properly to the jury, and they abundantly justified them in finding the verdict which they did. The motions are dismissed.

Gantt, Evans, Richardson, Earle, and Butler, Justices, concurred.