Mowry v. Miller

Action on the case, for defendant having advised and procured a third person to institute a malicious prosecution against plaintiff for felony: Held, the action lies against defendant for advising and procuring such prosecution. In every such action, the declaration must allege that the prosecution was without probable cause; but that allegation relates to the state of the fact, that the prosecution was without probable cause, not to the state of the defendant’s knowledge that there was no probable cause. On general demurrer to a declaration, the court looks always to the substantial meaning of its allegations, to ascertain whether it states good cause of action. In an action on the case for advising and procuring a malicious prosecution, it is not material for the plaintiff to prove the exact "day of his acquittal as laid in the declaration, so that it appears to be before the action brought; and, therefore, a variance in that respect, between the day laid, and the day stated in the record produced to prove the acquittal, is not material; the day not being laid in the declaration, as part of the description of such record of acquittal, and being laid under a scilicet.

Case, brought by Miller agaiust Mowry, in the circuit court of Shenandoah. The declaration was in the following words: “ B. Miller complains of G. Mowry, in custody Sic. of a plea of trespass on the case: For that, whereas the said Miller is a true and honest citizen of the commonwealth • &c. and hath never been guilty, or, until the committing of the grievances by the said Mowry, hereinafter mentioned, been suspected to have been guilty of felony he. Yet the said Mowry, well knowing the premises, but contriving and maliciously intending to injure the said Miller, in his good name he. and to bring him into public scandal he. and to cause him to be imprisoned &c. heretofore, to wit, on the 24th October 1825, at he. consulted with, advised and procured one S. Zirkel, to go before George Moore a justice of the peace in and for the county aforesaid, and, then and there, induced the said Zirkel, falsely and maliciously and without any probable'or reasonable cause whatsoever, to charge the said Miller with having feloniously stolen 1400 dollars in bank notes, the property of the said Zirkel, from . the possession of the said Mowry; and upon such charge, he the said Mowry prevailed on and compelled the said Zirkel, by the false, scandalous and malicious representations of him the said Mowry, and without any reasonable or probable cause whatsoever, to procure the said Moore, being such justice as aforesaid, to make and grant his warrant &c. for apprehending the said Miller, and for bringing the said Miller before the said Moore, or some other justice of the peace for the said county, to be dealt with according to law, for the said supposed offence; and the said Mowry directed, advised and procured the said Zirkel, under and by virtue of the said warrant, afterwards, to wit, on the 24th October 1825, at &c. wrongfully and unjustly and without any reasonable or probable cause whatsoever,— and, at the instance of the said Mowry, caused the said Miller to be arrested he. and imprisoned &c. until the said Zirkel, at the instigation of the said Mowry, by his false, scandalous and malicious charges, caused the said Miller to be carried before the said Moore justice of the peace as aforesaid, and to be committed by the said justice for examination, without any probable cause, to the jail of the said county, there to remain until discharged by due course of law;—And, afterwards, to wit, on the 7th Octoher 1825, at a court held at &c. by J. S. [and others, naming them] . . _ . justices of the peace for the said county, for the examination and trial of the said Miller for the said felony, and who had competent and legal authority to hold such court,— having heard and considered all that the said Zirkel, and the said Mowry, who instigated the said Zirkel to prosecute the said Miller, could say touching and concerning the said supposed offence,—then and there, to wit, at &c. on the said 7th October aforesaid, adjudged &c. that the said Miller was not guilty of the said supposed offence, and then and there caused the said Miller to be fully acquitted of the said supposed offence, and discharged &c. and the said complaint has not been further prosecuted, but is wholly ended and determined—Wherefore the said Miller saitb, that he is injured, and hath sustained damage &c.” Mowry, 1. demurred generally to the declaration, and 2. pleaded not guilty. Upon the demurrer, the court held the declaration good. And upon the trial of the general issue, there was a verdict for the plaintiff, for 500 dollars damages, and judgement was given accordingly. At the trial, Miller offered in evidence the record of his examination before the county court for the felony of which he had been accused, and of his acquittal; whereby it appeared, that the court by which he was examined and acquitted, was in fact held on the 7th November 1825, instead of the 7th October as stated in the declaration; whereupon Mowry’s counsel objected to the variance between the record, and the allegation of the trial and acquittal in the declaration ; but the court overruled the objection, and allowed the record to be read in evidence; to which Mowry’s counsel filed exceptions. Mowry applied to this court for a supersedeas to the judgement; which was allowed.