1867, and had reasonable cause to believe that he had committed an act of bankruptcy, there was probable cause for their action and the plaintiff was not entitled to recover. That they had reasonable cause to believe an act of bankruptcy had been committed, must be conceded, in view of the manner in which the judgment of Jonas Sonneborn against him had been obtained on the 12th of June, 1873, and in view of the decision of this court in Buchanan v. Smith, 16 Wall., 277 [83 U. S., XXI., 280]. If, there fore, they had an honest and reasonable conviction that the plaintiff was their debtor, that he was liable to them for the bills of goods sold by them in 1867 to E. Leipzeiger & Co., they had probable cause for instituting the proceedings in bankruptcy, and their defense was complete. The jury should have been so instructed. case as this acted bona fide upon legal advice, their defense is perfect. The remaining exceptions to the charge require but brief notice. They relate to the assessment of damages, under the positive instruction to find for the plaintiff. Of these but a single one need be noticed. The court was asked to charge that the jury, if they found for the plaintiff, could not, in estimating the damages, consider the fees of counsel in prosecuting the case. The instruction was not given. It was refused, and erroneously, as we think. The fees of counsel in prosecuting this case were no part of the consequences naturally resulting from the action of the defendants in suing out the decree and warrant in bankruptcy. They were not what the defendants ought to have foreseen. That such fees are not recoverable, and why they are not, was clearly shown in Good v. Mylin, 8 Pa., 51; vide, also, Alexander v. Herr, 11 Pa., 537; Stopp v. Smith, 71 Pa., 285; Hicks v. Foster, 13 Barb., 663. The rule asserted in these cases we think is correct, and it should have been given to the jury in the present case. The defendants were the more injured by the refusal to give it, because evidence was given of the cost of prosecuting the suit calculated immensely to influence the damages-evidence which should not have been offered or received. The other exceptions to the charge require no notice. The judgment of the Circuit Court is reversed, and a venire de novo is ordered. Mr. Justice Bradley, dissenting: We think, also, there was error in refusing to charge the jury as requested in the defendants' first point, which was as follows: "If the jury believe, from all the evidence, that A. T. Stewart & Co. acted on the advice of counsel in prosecuting their claim against Sonneborn in the Circuit Court of Barbour County, and upon such advice had an honest belief in the validity of their debt, and their right to recover in said action; and in the institution of the bankruptcy proceedings acted likewise on the advice of counsel, and under an honest belief that they were taking and using only such remedies as the law provided for the collection of what they believed to be a bona fide debt, they having first given a full statement of the facts of the case to counsel; then there was not such malice in the wrongful use of legal process by them as will I am obliged to dissent from the judgment of entitle the plaintiff to recover in this form of the court in this case. It hardly needs any refaction." This the court refused to affirm, "ex-erence to authorities to establish the familiar cept as contained and qualified in the preceding doctrines laid down in the opinion. As applied charge." An examination of the charge, how-to ordinary cases of actions for malicious proseever, reveals that the instruction was not concution and arrest, they are elementary law. It tained in it nor alluded to. The defendants, we think, had a right to have it affirmed as presented. There was enough in the evidence to justify its presentation. It was proved that, before they commenced their suit in the Circuit Court of Barbour County, the defendants were advised by an eminent lawyer of Alabama, of twenty-five years' standing in the profession, respecting their legal right to recover the debt from the plaintiff, that, in his opinion, the plaintiff was liable therefor. It was further testified that the same lawyer advised them that, in his opinion, the plaintiff had rendered himself liable to involuntary bankruptcy proceedings by suffering his brother's judgment to go against him by default, and by advertising his entire stock of goods at and below New York cost. It was not until after this advice was given that the petition in bankruptcy was prepared and filed That the facts stated in the point proposed, if believed by the jury, were a perfect defense to the action; that they constituted in law a probable cause; and being such, that malice alone, if there was such, was insufficient to entitle the plaintiff to recover, is, in view of the decisions, beyond doubt. Snow v. Allen, 1 Stark., 502; Ravenga v. Mackintosh, 2 Barn. & C., 693; Walter v. Sample, 25 Pa., 275; Cooper v. Utterbach, 37 Md., 282; Olmstead v. Partridge, 16 Gray, 381. These cases, and many others that might be cited, show that if the defendants in such a cannot be gravely supposed that when the court below instructed the jury that the question of malice and probable cause was not before them except on the question of vindictive damages, it meant to ignore or to dispute the law as laid down by the court. The question, as viewed by the court below, was not as to what is incumbent on the plaintiff to prove in an ordinary action for malicious prosecution, but whether the defendant in this particular case stood in the category that entitled him to require such proof. No one doubts that in an ordinary action of this kind malice must be proved, and that prob able cause for the prosecution is a defense. The sole question was whether this was such an ordinary action, or not; and this question has not been met by the counsel at the bar, and I do not think it is met in the opinion of the court. What are the grounds and reasons for the stringent rules imposed upon a plaintiff in an action for malicious prosecution? Why is he obliged to prove actual malice, and why is it that the defendant may justify by probable cause? The reason undoubtedly is, that every man in the community, if he has probable cause for prosecuting another, has a perfect right, by law, to institute such prosecution, subject only, in the case of private prosecutions, to the penalty of paying the costs if he fails in his suit. If this were not so, it would deter men from approaching the courts of justice for relief. Pros ecutions may fail from many causes independent of the justice of the case; and it would be very hard to visit a man with heavy damages for making a complaint, or bringing a suit, when he had probable cause for it. Hence the law gives to every man a right to complain of or sue another, if he has probable cause to believe he has ground for such complaint or suit. For the exercise of this right he cannot be made accountable in damages, except so far as the law, for the discouragement of private suits, imposes upon him the costs of the litigation. In the case of criminal charges, this right of making complaint is given to every man, for all are interested in the preservation of public order. It is not necessary that the complainant or prosecutor should show any private interest in himself. But in the case of a civil suit, the prosecutor must base his demand upon some claim due or supposed to be due to himself. Without any claim or pretense of claim, a suit brought in his own name, or in the name of another, would be of itself unlawful, malicious and without probable cause. In short, upon probable cause, every man has a right to bring a charge against another for a public offense; and every man supposing him. self to be wronged by another, may bring suit for the redress of that wrong. The law gives this right, and protects it in an action brought for malicious prosecution or malicious arrest. But suppose that, in any class of cases, the law did not give this right; could the party then stand, for his defense, upon the question of malice and probable cause? Most assuredly not. He could not bring himself within the proper category. He would then be liable, at all events, for the actual damage caused by an unjust prosecution; just as much so as the man who should assault and wound another, or take and carry away his goods. And if an action should be brought against him for such unjust prosecution, a charge of malice, or want of probable cause, introduced in the declaration, would, at most, be regarded as surplusage; or the prosecution would, per se, be regarded as malicious. The allegation of malice would no more prejudice the right of recovery than did similar allegations of fraud and intent to deceive and injure in the old action of assumpsit. If a man does not bring himself within the category of right to sue given by the law, then it is clear that he cannot avail himself of the indulgence allowed by the law of showing probable cause for the suit. That was precisely the question in this case. The court below did not pretend to say that if Stewart & Co. had a right to institute proceedings in bankruptcy against Sonneborn, they could not, if unsuccessful, have availed themselves of all the defenses applicable in ordinary cases of actions for malicious prosecution. But, whether right or wrong in its views, it held that Stewart & Co. did not come within the category of persons having such right. It held that the bankrupt law gave such right to credit ors only; not to those who only believed themselves to be creditors, but were not such. It held that the fact of their being creditors was a condition precedent to their right to institute bankrupt proceedings. The words of the law as found in section 39 of the Bankrupt Act are, that a person owing debts and doing certain things enumerated in the section, "Shall be deemed to have committed an act of bankruptcy, and subject to the conditions hereinafter prescribed, shall be adjudged a bankrupt, on the petition of one or more of his creditors, the aggregate of whose debts provable under this Act amount to at least $250." In construing this section the court held that, whilst the law did not require that a man should establish his debt by a judgment before instituting proceedings in bankruptcy, it nevertheless required that he should be, in fact, a creditor; and that, if his debt was disputed by the debtor, the responsibility was on him (the creditor) to establish it. If this were not so, then, a man prosecuting an old disputed claim against another, which the latter had always repudiated, and which was still contested in the courts, could effectually ruin his antagonist by simply swearing to his claim and throwing him into bankruptcy; and the latter, though finally successful in demonstrating to the courts the invalidity of the claim, would be without any redress except the petty satisfaction of recovering the costs of the suit. The court below held that this was not the law; and that a man who assumes the responsibility of throwing another into bankruptcy, and drawing down upon him all the consequences of breaking up his business and ruining his prospects for life, he must be prepared to show that at least he is in fact a creditor of his victim and, therefore, in the category of those who have a right to institute such proceedings. In the present case, Stewart & Co. claimed to be creditors of Sonneborn; but the claim was disputed and in litigation when the proceedings in bankruptcy were commenced. It seems to me that the court was right in holding that the issue of the litigation of the claim was at Stewart & Co.'s risk, so far as the question of their right to institute proceedings in bankruptcy was concerned; and that, if they failed to establish their claim against him, they could not excuse themselves for the outrageous wrong of breaking up his business, and blighting his life, by showing that they had probable cause to believe that their claim was valid. This position does not in the least disaffirm the right of a creditor, one who is really such, to plead or show probable cause for instituting bankruptcy proceedings against his debtor, where those proceedings are dismissed for want of sufficient ground, or for any other cause. A creditor has the right, by the law, to institute such proceedings upon probable cause. But, in my judgment, one who is not a creditor in fact has no such right. The law does not give him any such right. The power to throw a man into bankruptcy and thus destroy his business and all hope for the future, is one of great magnitude to be given to one man over another. A wealthy man or firm, with extensive business connections, having this means of destruction in his hands, wields a tremendous power. The indiscriminate exercise of the power by many heavy capitalists throughout the country, as a means of collecting their debts, or holding it in terrorem over their debtors for that purpose, was one of the causes which made the late law odious to the community, and produced its repeal. In my judgment, the construction given to it by the court below, on the point in question, was a wise and proper one, calculated to prevent or at least to moderate that reckless resort to the law which made it so odious and tyrannical in its effects. It did not trench upon any of the acknowledged principles of the law of mali cious prosecution; it distinguished the case from those which came under that head of law, and simply held that one who is not, in fact, a creditor, cannot lawfully institute proceedings in bankruptcy; and if he does so to the prejudice of the alleged bankrupt, he is responsible for the damages caused to him thereby. In the rightful prosecution of their alleged claim, whatever injury they may have caused to Sonneborn, Stewart & Co. could well have pleaded probable cause of believing their claim to be just; and Sonneborn could not have recovered damages without showing malice as well as want of probable cause. But in instituting proceedings in bankruptcy, they must at least be, in fact, creditors, as a condition precedent of their right to do so. If they had been in fact creditors, then they would have been entitled to all the privileges awarded to a defendant in an ordinary action for malicious prosecution, whatever the result of the proceedings might have been. Putting the matter into a summary form, the result of my views is briefly this: 1. That in criminal matters every person, being interested in the public order, has a right by law, upon probable cause, to make complaint against a supposed offender. 2. That any person believing himself to have a claim against another, having probable cause for such belief, has a right, by law, to sue therefor; subject only, if his claim be adjudged false, to pay the costs of suit. 3. That any creditor of another may institute proceedings in bankruptcy against his debtor, if he have probable cause to believe that his debtor has committed an act of bankruptcy; but a condition precedent to such right is, that he be, in fact, a creditor. Counsel, on argument, and it seems to me the court, in its opinion, takes for granted in this case the contrary of the last proposition, without considering the question itself. Assuming that a petitioning creditor is not under any condition precedent to be, in fact, a creditor, then I would agree to all that is laid down in the opinion. But that is the very question, and the only important question, in the case. 1. In a controversy respecting the title to lands in a State, this court will administer the law of the State in all respects as if it were a court sitting there and reviewing the decree of an inferior court in that locality. 2. It is the settled law of Texas that, if an infant convey and, after coming of age choose to rescind, he must restore what he has received, before he can recover; and the same rule is applied to married women under like circumstances. 3. In that State, real property belonging to a married woman is her separate property, and she has in equity all the power to dispose of it which could be given to her by the amplest deed of settlement. [No. 94.] Submitted Dec. 18, 1878. Decided Jan. 6, 1879. AP PPEAL from the Circuit Court of the United States for the Western District of Texas. The case is fully stated by the court. Mr, W. S. Herndon, for appellants. Messrs. Isaac C. Collins, J. W. Herron, Enoch Totten and Quinton Corwine, for appellees: "The statute prescribing the mode of conveying separate property of married women (article 1003), does not necessarily invalidate all execution by the wife may be established by conveyances otherwise made. The voluntary proof, and a case made in which a conveyance there was no private examination of the marwill be sustained in equity, notwithstanding ried woman. Tex.,414, 415, Dalton v. Rust, 22 Tex., 152–155; Pasch. Dig., Tex., 681; Womack v. Womack, 8 Clayton v. Frazier, 33 Tex., 99. consent of her husband, was valid in Texas, A verbal sale of land by the wife, with the under the law in force prior to 1840. Monroe v. Searcy, 20 Tex., 348. Previous to the passage of the Statute of Frauds in Texas, Jan. 18, 1840, a parol sale of land, accompanied by possession, passed a title as valid and legal as a written conveyance. Briscoe v. Bronaugh, 1 Tex., 331; Paschal V. Acklin, 27 Tex., 191. Mr. Justice Swayne delivered the opinion of the court: There is a considerable mass of testimony in the record, but the facts are few, and we think there is nothing material about which there is any room for doubt. In the year 1863, and for some years previous, the appellant, Mrs. Slaughter, had owned in her own right the premises in controversy in this case. She was a widow when she married The exception in regard to allowing counsel fees in the suit by way of damages was not Slaughter, and then possessed the property. It founded in truth. The court below expressly Texas. The land was poor and the place very is situated in Marion County, in the State of confined the jury to three specific grounds of damage, and this was not one of them. Hence unhealthy. In the spring of that year, Dunn the request to charge on the subject was not & Co. were desirous to put up a packing estab relevant, and the court did no wrong to the de-lishment, and were looking for property to buy fendant in refusing to so charge. I think the judgment should be affirmed. Cited 81 N.Y., 434: 130 Mass., 445: 39 Am. Rep., 468. M. T. SLAUGHTER ET AL., Appts., V. JAMES M. GLENN ET AL., Exrs. of JOSEPH GLENN, Deceased. (See S. C., 8 Otto, 242-248.) with that view. Her agent offered the premises in question. At his request Dunn called upon her. She asked $8.400. Dunn & Co. agreed to give it, and paid her in Confederate money. On the 21st of July, 1863, the payment was NOTE.-Jurisdiction of U. S. Supreme Court to declare state law void as in conflict with state constitucourts to construe their own statutes. See note to tion; to revise decrees of state courts. Power of state Jackson v. Lamphire, 28 U. S. (3 Pet.), 280. It is for state courts to construe their own statutes. The Supreme Court will not review their decisions, except when specially authorized to by statute. See note State laws, when operative-Texas law-mar- to Commercial Bank v. Buckingham, 46 U. S. (5 ried women. How.), 317. completed, and she executed a deed to the pur- | Slaughter and wife. Glenn thereupon filed this chasers. She was the sole grantor, and the cer- bill to quiet his title. Upon his application, both tificate of acknowledgment was silent as to any cases were removed to the Circuit Court of the separate and privy examination. The certifi- United States. That court decreed a perpetual cate is as if she were a feme sole. Gray, the injunction in the action at law, and the equity officer who took the acknowledgment, testified case has been brought here for review. as follows: The controversy between the parties is to be decided according to the jurisprudence of Texas. We must administer the law of the case in all respects as if we were a court sitting there, and reviewing the decree of an inferior court in that locality. Olcott v. Bynum, 17 Wall., 44 [84 U. S., XXI., 570]. "I witnessed and attested said deed at the request of Mrs. E. J. Slaughter, the maker thereof. I took her acknowledgment to said deed. I asked her if she acknowledged it to be her act and deed, for the uses, purposes and considerations as therein stated and expressed; she answered that she did. I cannot remember positively what other questions were propounded to her or what answers were made, but I think I asked all the questions usually asked by county clerks in taking acknowledgments, as required by the statute. She signed the deed, after an explanation of its contents made by me to her. Her husband, M. T. Slaughter, was at that time absent in the army. After the examination and explanation of the contents to her by me, she signed the deed, and acknowledged it to be her act and deed. She acknowledged it, so far as I could tell, freely and willingly. At the time of the making the deed, M. T. Slaughter was absent. He had been absent about four months, not less than four months. He was a soldier in the Confederate army. He was absent for more than twelve months; I cannot remember positively how long." About the time the transaction was closed she bought another tract of land situate in the neighborhood, and paid for it out of the money she had received from Dunn & Co. A deed to her was duly executed on the 3d of August fol lowing. The tract is fully described in the bill, and a copy of the deed is in evidence. The property was known as the Culbertson farm. Before selling and buying, she consulted with her friends, and they earnestly advised both as highly advantageous. The firm of Dunn & Co. consisted of Dunn and Price. Price sold and conveyed to Dunn his share of the premises in controversy, and Dunn sold and conveyed the entire premises to Joseph Glenn, since deceased. On the 26th of May, 1863, the appellant, M. T. Slaughter, left his home, and entered into the Confederate military service in the State of Louisiana. He lost an arm by a casualty of the war, and thereupon returned home and remained there. He was absent about a year. He had no means. His wife had considerable property. During his absence she managed and controlled everything as if she had been a feme sole. His ever returning depended upon the chances of the war. Upon getting back, he expressed himself as highly gratified by the sale and purchase she had made. She had constantly done the same thing. On the 3d of June, 1868, Slaughter and wife conveyed an undivided half of the premises in controversy to one of their counsel in the court below, with a special covenant against all persons claiming under them. By the same in strument it was provided that the learned gen tleman should prosecute a suit for the recovery of the premises without any other compensation and that in the event of defeat he should pay all costs and damages and save his clients harmless. An action of trespass to try title was instituted in the proper state court, in the name of There is a look and odor about the case on the part of the appellants, that to say the least, do not commend it to the favorable consideration of a Chancellor. It wears the appearance of a conspiracy to defraud. A court of equity must find itself hard pressed in the other direction to refuse the relief sought by the bill upon the facts disclosed in the record. We do not find ourselves embarrassed by any such considerations. The only objections taken by the appellants to the title of the appellees' testator are that Slaughter was not a party to the deed of his wife to Dunn & Co., and that the certificate of her acknowledgment does not conform to the requirements of the statute of the State touching deeds by married women of their own property. Before considering that subject, it is proper to advert to two other points which arise upon the record. All the means, legal and equitable which Dunn had of protecting his title passed by assignment under his deed to Glenn. Kellogg v. Wood, 4 Paige, 578. Mrs. Slaughter paid for the Culbertson farm entirely out of the proceeds of the property which she conveyed to Dunn & Co., and there was an overplus left in her hands. If we were constrained to hold that she is entitled to recover back those premises, it would then have to be considered whether she should not be regarded as a trustee ex maleficio, and required to convey to the appellees, as representing Glenn, the Culbertson farm, in which the money of Dunn & Co. was invested. Oliver v. Piatt, 3 How., 333, May v. Le Claire, 11 Wall., 217 [78 U. S., XX., 50]. Again; it is the settled law of Texas that if an infant convey and, after coming of age choose to rescind, he must, as a general rule, restore what he has received, before he will be permitted to recover; and the same rule is applied to married women under like circumstances. Womack v. Womack, 8 Tex., 397. But it is unnecessary to pursue these views, because we find the propositions of the appellants touching the execution of the deed to Dunn & Co., wholly untenable. The common law rights and powers of feme coverts have been considerably modified in Texas. There, real estate belonging to her, whether acquired by descent or purchase in the usual way, is termed, though not technically so, her separate property," and she has in equity all the power to dispose of it which could be given to her by the amplest deed of settlement. The statute regulating conveyances to pass the legal title is not unlike those of most of the other States. It provides that the "husband and wife having signed and sealed any deed or other writing purporting to be a | proceedings in the county court and the receipt conveyance of any estate or interest in any land, of the purchase money from denying the va slaves, or other effects, the separate property of lidity of the bond, or the right of the purchaser the wife, *** if the wife appear before any to all the lands within the metes and bounds judge," etc., “and being privily examined by set forth in the original contract which she had such officer apart from her husband, shall de- executed. She was treated in all respects as if clare that she did freely and willingly sign and she had been a feme sole from the outset. seal the said writing, to be then shown and ex- In Clayton v. Frazier, 33 Tex., 91, the plaintplained to her, and wishes not to retract it, and iff sued the heirs of a married woman for the shall acknowledge the said deed or writing so title to land which had been her property, and again shown to her to be her act, thereupon for the conveyance of which, on the payment such judge or notary shall certify such privy of the purchase money, she and her husband examination, acknowledgment and declaration, had given a bond. There had been no examinaunder his hand and seal, by a certificate an- tion of the wife as to her voluntary execution nexed to said writing, to the following effect or of the bond. It was held that the case was a substance, viz, :" etc. The form is then given. proper one for specific performance. Womack 1 L. of Texas, 4th ed., p. 261, art. 1003. v. Womack and Dalton v. Rust were cited and approved. This is the latest authoritative adjudication in that State upon the subject to which our attention has been called. In the administration of this statute by the courts of the State a singular anomaly has grown up. The following adjudications will show the changes in the common law and the anomaly to which we have referred. In Womack v. Womack [supra], a husband and wife conveyed a slave belonging to her, and warranted the title. There was no certificate of acknowledgment. The court said the statute which prescribed the mode of convey. ing did not declare void any other mode, and that it seemed, from its terms, to have but one object in view, and that was to secure the freedom of will and action on the part of the married woman. If she was free to act, and so declared it, and that she did not retract, all the circumstances concurred which were made These authorities require no comment. The propositions which they establish are decisive of the case before us. (See S. C., 8 Otto, 266-308.) necessary to pass the title to the property." The Arrest by military officer-false imprisonment— deed was held to be valid. evidence-exception. 1. Where an officer of the U. S. Army caused an arrest of a person without a warrant but under soldiers to desert, and was afterward sued by the military order, for aiding and abetting enlisted person so arrested, for false imprisonment in causing such arrest, every fact tending to show the mothe existence of the grounds assigned for the arrest. tives of such officer in causing the arrest, or to show is admissible in such action, in mitigation of damages, although such facts may not establish legal justification. 2. Evidence, of a reasonable suspicion and that In Wright v. Hays, 10 Tex., 130, the husband was from home, at a distance, for nearly six years. During his absence his wife visited him. At the end of that time he returned home and remained there. In the meantime, the wife bought land, took the title in her own name, and conveyed a part of it to her son by a former husband. After her death, suit was brought to defeat the conveyance. The same objections were made to the deed as here. The court said: "The joining of the husband in which shows that the truth of the case, as it actually the wife's conveyance, her privy examination existed at the time of the arrest, sustained the beand declaration that she acts freely, all presup- lief under which the defendant acted, is admissible. 3. Evidence of an admission of the party arrestposes that a husband is present and may be ex-ed, although it was not made until after his release ercising undue influence over her. But can from custody and was unknown to the party causthese formalities be requisite in cases where the ing the arrest until after the commencement of the rights of the wife (and they are acknowledged action, is admissible for the same purpose. 4. A general exception to the charge to the jury by law) depend upon the supposition that de which did not call the attention of the court below facto she has no husband?" The deed was sus- to the specific propositions which were objected to, tained and judgment was given for the de- cannot be regarded here. [No. 39.] fendant. Argued Nov. 15, 18, 19, 1878. Decided Jan. 6, In Dalton v. Rust, 22 Tex., 133, the vendors had given a title-bond to the vendee for a tract of land described by metes and bounds. The vendee died before making full pay. ment. The vendors filed a petition in the county court for the sale of the premises and the payment of the balance due. A sale was accordingly made, and the amount due paid out of the proceeds. The purchaser sued to recover possession, according to the metes and bounds set forth in the bond. One of the vendors set up as a defense that she was, when she executed the bond, and had continued to be, a married woman, and that she did not acknowledge the bond according to the requirements of the statute. It was held that she was estopped by the IN 1879. ERROR to the Circuit Court of the United States for the District of Vermont. Statement of the case by Mr. Justice Harlan. Bean, defendant in error in this action for arrest and false imprisonment was in June, 1864 a resident of Coaticoke, in the Province of Canada. His ordinary business was that of a harness-maker, but during the period hereinafter referred to he was, to some extent, engaged in the business of substitute brokerage, or in furnishing substitutes for our army. Henry and Beckwith, plaintiffs in error, were officers of the Union Army, the former being provost-marshal |