Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1815-06-24
From h'e Wilmington c Delaware Gazette.
IMPORTANT DECISION
Commodore EXANBER MURRAY.
Colonel ALLEN McLANE.

tried at the late term of the Circui, Court Of
the United States for dis District 1t occupied
the Court forfive days. The cause was ablv and
deliberately argued by counsel on both sides
When the argument was closed the following cor.
rect and judcious charge was delivered by the
presiding Judge, GABRIEL DuoaK, ESQ.
The declaration in this case is drawn with
great care, and exhibits a full state OF the plain.
al 5 ca5e. 1t contains two counts The FIRST
count charges the defendant with having falsely
Haiiciousiy, aud without cause, instituted suit
against the plaintiff, demanding heavy bail. where
BY he was arrested and imprisoned The second
count charges that the suit was instituted ma
Ecously and without cause, and that excessive
bail to the amount of g 100000 was demand
ed, in case 7ohere he had no right 10 dsmand6aA,
in consequence ofwhich he was arrested and I'M
prisoned.
This action, in its nature, is peculiar and deli
cate. Formerly, 1t was used as a remedy for ma.
1icious prosecutions only. 1t was afterwards
adopted as q remedy Where civil suit had been
maliciously and without cause instituted against
the party,
The Court has been applied to by the Counsel
for the Defendant to instruct the jury upon the
law arising in the case.
The jury must have observed that the Coun-
sci engaged in cslis cause, have not materially
differed as to the proof which the Plaintiff must
necessarily produce in order to sustain his case ::
That tie orlsipal siat zcRs instituted naEciously,
and 1vitiOut reasonable Or Probable cause
The Court consider the law upon this subject
settled. This species of action is not found in
law. 1t is incumbent on the plaintiff to prove
that the suit by the Defendant was Instituted with
malice, express or implied, and without proba-
bic cause.--Without probable cause malice NAV
be implied according TO the circumstances of the
case but from the most express malice want OF
probable cause cannot be implied. Hence 10
sustain this suit the Plaintiff must prove malice
express or implied, and that there was a want of
probable cause.
Whether malice existed or no;, is matter of
fact for the Jury TO decide, taking into cSnsidera-
ton all the circumstances of the case.
The question of probable eau, e, is mixed pro-
position of law and fact Whether the circum
stances alledged to shew it probable, or not pro-
bahle, are true and existed, is matter of fact
but whether, surprising them true, they amount
TO probable cause, IS question oflaw to bede-
cided b. the Court.
Whether the bail required in this case was ex-
cessive or rot, depended in a greakmeasure upon
the law of the State of Delaware and the practice
of the Courts under those laws. In MARYLAND.
in an action Of this kind no man could be held to
bail for the trifllng sum of fifty dollars without
an affidavit In Delaware, understand, the Pre-
tice as proved TO be different, and that
man may be required without affidavit to give
bal to any amount according to the value of The
thing IN contest, IN the inst instance. He may
afterwards be exonorated lnappl cation to Judge
Or justice for rule on the plaintiff to shew cause
why he may not be discharged ON common bail ::
and IL also appears that the practice IS 10 require
bail in double the amount of the value of theshIp
IN dispute. In the case under consideration. },
does not appear to the Court that 6 i, 100000
was more than double the value Of the Superior
and her cargo
The question Improbable cause has been con.
sidered as involving the legality or Illegally of
the seizure, and the possession of the Super. or
by the plaintiH-aud by the defendant. Here it
Is necessary 10 re-capitulate the evidence in the
case-The principal facts appear TO be these -
On the oath Of August 1912, Joseph Grub wrote
q letter to the collector, informing him that the
Superior was IN the bay of Delaware, having on
board a cargo Of goods of the growth, produce
and manufacture of Great Britain, and he states
that he gave this information in order that be
may receive the proportion of any penalty or
forfeiture to which he might be entitled byrea-
son of his giving this Information. That Tho
mas Little boarded the Superior near the Capey
of Delaware, by instruction from the principal
officer owners and consgnees, and Obtained .
copy of the manifest to be gwen to the Col
lector.
That on the 18th Of August, one Of the Gun
Boats and Revenue Gutter were proceeding down
the bay the Gun-Boat being ahead at O'clock
in the morning, the Superior was boarded near
Reedy Island by Smith, en- officer of one of
dore Murray, commander ofthe fiotla then lvng
In Delaware Bay, by whom she was ordered 10
Newcastle About IL o'clock of the same day
she was boarded by Capt Sawyer ofthe Revenue
Cutter, whodemsnded the ships papers, and they
were delivered TO him By the master ofthe vessel,
She was ordered by Capt. Sawyer 90 the mouth of
Christina Geek. a contest arose between the
officer ~ the Gun-Boat and the officer ofthe Re.
venue Gutter, as 10 the destination oc the vessel.
and both remaining on board she assembled ND the
river 10 New Castle, where the Aotilla was stat-
oned Previous to her arrival of Newcastle,
Samuel Spackman, the owner, declared his inten-
ton 70 the Collector 10 order the Superior to Will
rnngton, and the Collector advised the Surveyor
At Newcastle, and the Capt bfthe Gutter, Of Ibis
circumstance. At Newcastle, orders were ri.
ven that she should be fastened TO the prior. but
was prevented by an officer Of the hotilla,
who. aided By number Of his men, who were
armed, forcbly carriedherup thcriver TO Philadel-
pha, the officer Of the Revenue continuing on
board. In this place il may not be improper 20
remark, that the force used was in the abb
sence Of Com. Murray. If he had been present,
in all probability IL would not have taken place.
Under these circnmstance3 the Collector, consult
ing the DsHict Attorney, was advised to take out
writ Of repleyin 10 recover the possession Of
the vessel, but as she had been carried out of the
District The writ could not be served The At
toTney then, in The absence Of The Collector or