Griffith against Ogle and Kimmell, 1 Binn. 172

Tilghman C. J. delivered the opinion of the court, after stating the case. The first question is whether the Circuit Court did right in entering judgment as of a term in which the plaintiff was living. Although this point has not been absolutely abandoned by the defendants’ counsel, yet with great propriety it has not been urged as if they supposed it was tenable. Direct authorities have been cited by the plaintiff’s counsel, in support of this practice, It tends very much to the attainment of justice, and we have no doubt but it is perfectly regular.

Of the remaining points offered in support of a new trial, and in arrest of judgment, some have been abandoned by the defendants’ counsel, and others insisted on. I shall confine myself to the latter. They may be classed under the following heads. I. That the declaration does not state that the defendants conspired against the plaintiff -without probable cause. 2. That the declaration does not allege that the plaintiff was pUt to any inconvenience, or suffered any loss or damage. 3. That the judge who tried the cause erred in charging the jury that the defendants had not proved probable cause. 1.

The defendants’ counsel have bottomed their arguments on the first point, on this position, that the analogy between actions for a malicious prosecution, and the present action is so great, as to warrant the conclusion that the declarations in both actions should be alike in alleging the want of probable cause. There is however a considerable difference between these actions.

The action for malicious prosecution being founded on a malicious proceeding by the defendant in a court of justice, there is more reason for alleging in that action than in this, that there was no probable cause for the prosecution; because when legal process is issued, the presumption prima facie must be, that those proceedings were proper. This is founded on that respect which is due to the process of courts of justice.

But even in actions for malicious prosecutions, no good authorities have been cited to shew that a declaration stating the prosecution to be false and malicious, is bad after verdict; and without expressing our opinion on a case not before us, we will only say that we are far from being convinced that in such case judgment should be arrested. In a writ of conspiracy strictly speaking, it is sufficient to charge the defendants with a conspiracy falsely and maliciously to accuse the plaintiff of a crime, without saying any thing about probable cause.

This action on the case in the nature of a writ of conspiracy, has been invented for the ease of plaintiffs, being attended with much less form than the old writ of conspiracy. When I say that two men conspired falsely and maliciously to charge me with an offence, I go far towards saying that they had no probable cause for their conduct; for if they had, they could not properly be said to have acted maliciously. Besides, if probable cause had been shewn, the defendants ought not to haye been found guilty; and we cannot do otherwise than presume that probable cause was not shewn.

Nay it appears on the record that the defendants had the full advantage of this point before the jury; and one of the errors which they have assigned is, that the judge was mistaken in charging the jury that the evidence on the part of the defendants did not prove that they acted on probable cause. 2. The old writ of conspiracy charges a conspiracy in the defendants; and that conspiracy is the ground of the action. In the present action likewise the conspiracy is the gist of the action, although it may be necessary to shew some act in execution of it.

The declaration does charge such act; and we are of opinion that inasmuch as the conspiracy was to accuse the plaintiff of an offence for which he was liable to indictment, and removal from office, the law implies damage. 3. As to the opinion of the judge that the defendants had not proved probable cause, we think he was right. It is meritorious to make candid inquiries into the conduct of magistrates, and to prosecute them in case of extortion. But light reports do not justify such conduct as was pursued by the defendants; especially as the plaintiff had explained to Mr.

Ogle the true nature of the transaction, before he had taken any measure in pursuance of the conspiracy. Upon the whole we are of opinion that the judgment of the Circuit Court should be affirmed with costs. Judgment affirmed. Cumber v. Wane, 1 Sra. 426. Tooker v. Duke of Beufort, 1 Burr. 148, Trelawny v. Bishop of Winchester, 1 Burr. 219.