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reasons why it should be thus construed and applied. The power of arbitrary arrest and imprisonment, though sometimes absolutely necessary to the public safety, is a dangerous and delicate one. In the hands of improper persons it would be liable to great abuse. If every officer in the United States, during the suspension of the habeas corpus, is authorized to arrest and imprison whom he will as "aiders and abettors of the enemy," without further orders from the president, or those to whom he has specially committed such authority, the state of things that would follow can be better imagined than expressed.

It only remains to consider what is the effect of section 1 of the act of May 11, 1866. That act, as we have seen, makes the order of “the president or secretary of war,” or “any military officer of the United States holding the command of the department, district or place within which” an “arrest or imprisonment was made," a defense to the action.

Under this section there can be no doubt but that the order of Gen. McDowell to Capt. Douglass protects the latter for acting in obedience to it, and is a complete defense to the action so far as he is concerned.

At the same time it is equally apparent that it does not furnish a defense for Gen. McDowell. He is not shown to have acted upon the order of any one. The section proceeds upon the principle, which I have already attempted to show ought to be the law independent of the statute that a military officer, when acting in obedience to the order of his superior, should not be liable to third persons therefor.

As it nowhere appears that Gen. McDor:ell was acting under the order of his superior, but rather in obedience to what was deemed public necessity, I must hold him liable to the plaintiff for the damages which the latter has sustained by reason of his unauthorized act.

The good motives of Gen. McDowell, and the necessities of the public when he issued order No. 27, as well as the gross misconduct of the plaintiff, have been duly considered by the court in estimating the damages of the plaintiff. But these alone, however worthy or imperative, do not constitute a defense to the action. The act itself being unauthorized by any order or authority of the president does not come within the scope of the proclamation of September 15, 1863, suspending the privilege of the writ, or the act of March 3, 1863, authorizing such suspension. Neither does it come within the purview of the act of May 11, 1866, as it was not done in obedience to the order of a superior.

$ 684. Congress may relieve a meritorious officer against loss incurred while in the discharge of his duty to the public.

Congress may relieve a meritorious officer against a loss incurred while in the discharge of his duty to the public; but in this tribunal, whose only function is to administer the law as it finds it, the defendant must be held liable for the legal consequences of his act.

Judgment that the plaintiff recover of the defendant McDowell the damages found by the court, and his costs and disbursements, and in bar of the action as against the defendant Douglass.

$ 685. Malice.- Defendant had plaintiff arrested without probable cause. He had no illwill against him nor any desire to vex or annoy him, but had him arrested for the purpose of finding out who had forged a certain note in his name then in plaintiff's possession, and which he claimed to be valid and to have acquired in good faith. Held, that defendant had no right to experiment in that way with the liberty and good name of plaintiff; that the act

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was purposely wrong and unlawful and therefore malicious. Johnson v. Ebberts,* 6 Saw., 538.

$ 686. In a suit for malicious prosecution, held, that the failure of the plaintiff to recover, in a suit instituted by him, does not establish the fact that the action was vexatious or unfounded. Ray v. Law, * Pet. C. C., 207.

$ 687. Malice and want of probable cause must concur to sustain an action for malicious prosecution. But malice does not necessarily imply hate or a personal enmity. It may be inferred from an entire want of probable cause. It may also be inferred from gross, culpable negligence in making inquiries and from misstatements of facts. Wiggin v. Coffin,* 3 Story, 1.

$ 688. Malice is not to be presumed from want of probable cause, but the jury must find malice as a substantive fact in the case. But the want of probable cause is evidence of malice, and, in cases where there is no evidence to the contrary, is sufficient to justify a verdict for the plaintiff. Johnson v. Ebberts, 11 Fed. R., 129.

$ 689. Probable cause What constitutes.- A suit for malicious prosecution lies only in cases where a legal prosecution has been carried on without probable cause. It does not lie for the wrongful imprisonment of a United States marine by the commander of the vessel on which he is serving. Dinsman v. Wilkes, 12 How., 401.

$ 690. The "probable cause” which constitutes a good defense to an action for malicious prosecution is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant the belief that the person accused is guilty of the offense with which he is charged. Munns v. Nemours, * 4 Hall's L. J., 102.

$ 691, Mountford caused plaintiff to be arrested for larceny. An indictment therefor was subsequently thrown out by the grand jury, and then plaintiff sued for malicious prosecution. Plaintiff having ordered goods, upon their delivery to him offered a dishonored promissory note in payment for them, which was refused, and the vendor neither got money nor were the goods returned. Held, that if the jury thought plaintiff's conduct suspicious of a swindle, the prosecution of him would be justified although an actual case of larceny was not made out. Wilmarth v. Mountford, * 4 Wash., 79.

$ 692. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. Munns v. Dupont,* 3 Wash., 31.

$ 693. Plaintiff, a stranger, came into the neighborhood of defendants' powder-works to ascertain their processes of manufacture in order to avail of them in a rival factory. He procured interviews with defendants' workmen, tried to induce them to leave defendants and to give him a knowledge of their machinery and processes. He offered one workman a reward to bring him one of defendants' brass pounders or stampers, which was afterward brought, then concealed, the workman secretly absconding. Plaintiff came to Philadelphia, denied his name, knowing that defendants were following him, and when arrested had on him a letter fully developing the objects of plaintiff's visit and making allusions to the brass pounder. Held, that these facts, if proved, established probable cause of plaintiff's arrest by defendants for larceny. Ibid.

$ 694. Malice and want of probable cause must concur.-Where by statute no bond in attachment is required and none given, the defendant, in the absence of legislation giving the right, cannot maintain an action against the plaintiff in attachment by showing merely that the writ was wrongfully sued out, there being no debt due from him, but he must show malice, want of probable cause, and damage, as required by the principles of the common law in actions for malicious prosecution. Preston v. Cooper, 1 Dill., 589.

$ 695. In suits for malicious prosecution the question to be decided is not whether the plaintitf has suffered from a charge of which the defendants were the authors, and which in point of fact was not founded in truth, but whether the

charge was made maliciously and without probable cause. Munns v. Nemours, * 4 Hall's L. J., 102.

$ 696. To entitle the plaintiff to relief in an action for malicious prosecution, not only malice on the part of the defendant must be shown, but lack of probable cause also. Ibid.

$ 697. The plaintiff must show both malice and the want of a probable cause and that the defendants knew they had not probable cause. The bill and affidavit, and order of the judge, are prima facie evidence of a probable cause. Zantzinger v. Weightman,* 2 Cr. C. C., 478.

$ 698. In actions for malicious prosecution both malice and want of probable cause should be proved, but if the accusation appear to have been founded upon probable ground of suspicion, the malice is excused by the law. Both must be established, viz.: malice, and the want of probable cause. Of the former the jury are exclusively the judges; the latter is a mixed question of fact and law. What circumstances are sufficient to prove a probable cause must be judged of and decided by the court. But to the jury it must be referred whether the cir. cumstances which amount to probable cause are proved by credible testimony or not. Per Washington, J., in Munns v. Dupont, * 3 Wash., 31.



$ 699. Attachment proceedings.- Where a writ of attachment is sued out maliciously and without probable cause, and damage ensues, the defendant has a remedy on common-law principles aside from the remedy on the attachment bond. Preston v. Cooper, 1 Dill., 589.

$ 700. In an action for an unlawful attachment, if the affidavit for the attachment was based upon representations made by the defendant in attachment to the plaintiff in attachment, or to other persons and communicated to him, the jury should find the attachment justified. But on this question they cannot consider representations to third persons not communicated to plaintiff in attachment, for they cannot have influenced him in determining whether or not to attach. Tiblier v. Alford, 12 Fed. R., 262.

$ 701. At common law a plaintiff in attachment who fails in his action is not liable for damages unless he has got out his attachment without probable cause or maliciously. But in Tennessee, under the statute, a plaintiff in attachment who fails in his action is liable for actual damages whether he shows probable cause or not. Jerman v. Stewart, 12 Fed. R., 266.

$ 702. malice inferred.- A seizure under attachment process is wrongful if made without proper legal ground to sustain it; and, while malice is to be proved, the jury may infer it from evidence of the wantonness of the seizure and oppressive conduct on the part of the defendant. Tiblier v, Alford, 12 Fed. R., 264.

$ 703. Process of Confederate courts no justification.— The courts of the Confederate States of America were mere nullities; hence their process can form no justification to one who acts under them, and is subsequently prosecuted therefor, in an action for malicious prosecution. Hickman v. Jones, * 9 Wall., 197.

$ 704. Advice of justice, how far a defense.- Plaintiff was arrested on a warrant for having horses illegally in his possession, and refusing to deliver them to the defendant, their owner. The case was dismissed by the justice with the consent of the complainant, and shortly afterwards plaintiff commenced suit against defendant for false arrest. Held, that as defendant had made his affidavit upon which the warrant was issued by the advice and under the direction of the justice, and swears that he did not mean, and never did mean, to prosecute the plaintiff criminally, the plaintiff is not entitled to recover. Johnson v. Daws, * 5 Cr. C. C., 283.

$ 705. Evidence.- In an action for vexatious suit, and malicious holding to bail, held, that the records of other actions brought by the same defendant against the plaintiff could not be given in evidence. Ray v. Law, * Pet. C. C., 207.

$ 706. In an action for malicious attachment the return of the officer may be contradicted by parul. Mott v. Smith,* 2 Cr. C. C., 33.

$ 707. Upon a ne exeat the plaintiff may give evidence that he has suffered in the public estimation in consequence of the process of ne exeat, but not in consequence of reports circulated by the defendant, although such reports may be given in evidence by the plaintiff to show malice in the defendant; nor can be give evidence of special damage not averred in the declaration. Zantzinger v. Weightmap,* 2 Cr. C. C., 478.

$ 708. Pleading and practice.- In an action for maliciously arresting and holding the plaintiff to bail without probable cause, the affidavit to hold to bail must aver that the suit in which the plaintiff was so maliciously holden to bail was determined; and a declaration for such malicious arrest and holding to bail must contain this averment or it is demurrable. Barrell v. Simonton, 2 Cr. C. C., 657.

5 709. In an action for malicious prosecution a plea showing probable cause after an office judgment against defendant was objected to. Held, that as the gist of the action was malice and the want of probable cause the plaintiff must show the want of such cause, which will permit the defendant to give in evidence on the general issue the same fact which he has pleaded specially. Wherefore it is not necessary to the merits of the case that they should be specially pleaded. And the defendant, having suffered an office judgment to go against him, and this not being a plea to issue, he cannot claim it as a matter of right. Sheehe v. Ressler, * 1 Cr. C. C., 42.

$710. Miscellaneous.— Action for malicious prosecution, held, that demanding excessive bail where there is a good cause of action, or holding to bail where there is no cause of action, if done vexatiously, entitles the party injured to an action for a malicious prosecution. But if bail be not exacted such action will not lie. Ray v. Law,* Pet. C. C., 207.

$ 711. A wife brought an action to recover damages for a malicious prosecution. Her husband authorized her bringing the suit, but filed a paper stating that he comes “solely to assist her in prosecuting this suit, and as husband does not claim any share in said damages, but joins her to claim the same in her behalf.” The code of Louisiana provided that a suit for malicious prosecution of a wife must be brought by her husband. An exception was interposed by the defendant that the action should be brought by the husband. Held, that the exception was well taken, and was not cured by the paper filed by the husband. (Holmes v. Holmes, 9 La., 350; Coward v. Pulley, 9 La. Ann., 12; Barton v. Kavanaugh, 12 La. Ann.,


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332; Cooper v. Cappel, 29 La. Ann., 213.) And under Civil Code, article 2400, this rule is not modified by the fact that the parties are non-residents. Meyerson v. Alter, * 11 Fed. R., 688.

$ 712. The fact that the plaintiff was or had been a traitor to the United States does not prevent his recovery of damages for malicious arrest and imprisonment against other traitors, acting before and under process from a Confederate court on a charge of treason to the Confederacy, by assisting United States troops while suppressing the rebellion. Proof of plaintiff's bad character is always inadmissible in actions for malicious prosecution. Hickman v. Jones,* 9 Wall., 197.

$ 713. The plaintiff was arrested and imprisoned by defendant for a niuch larger sum of money than he owed, and required to give bond in the sum of $16,000, whereas he only owed $3,531.75. Held, that in an action for maliciously holding the plaintiff to bail upon a ne exeat for a larger sum than was due, the court will grant a new trial if the verdict for the plaintiff is against the weight of evidence, Zantzinger v. Weightman,* 2 Cr. C. C., 478.

$ 714. It was alleged that M., being indebted to the defendant and others, assigned his property to the plaintiff in trust for his creditors. The plaintiff was imprisoned under color of a writ of ne exeat. He brought suit against defendants for malicious prosecution and false imprisonment. The court charged the jury that if the property had been assigned to the plaintiff there was probable cause for instituting suit against him; that the plaintiff was entitled to maintain his action if the proceedings of which he complained were without probable cause and also malicious on the part of defendant. If the ne exeat which was afterward obtained, and the imprisonment of the plaintiff, were procured by the attorneys without probable cause and from malice to the plaintiff, the defendants are not responsible for the acts of their counsel unless directed by them, nor for the motives by which they were governed. But if the defendants afterwards refused to stay these proceedings or discharge the party from imprisonment, from the desire to obtain thereby, unjustly, auy pecuniary advantage to themselves, and knew or beliered at the time of their refusal that such proceedings and imprisonment had been procured maliciously and without any probable cause, then they are liable to this action. If, however, in refusing to interfere they were actuated by honest motives, seeking and desiring by legal means to recover money which they believed to be due to them, and were guided in their course by advice of counsel whom they believed to be trustworthy, then this action cannot be maintained. Burnap v. Albert, * Taney, 244.



SUMMARY Remedy; action by a town, S 715. — Compact between Virginia and Maryland,

$ 716.

$ 715. A public nuisance warrants an action at common law for damages, or a bill for an injunction in equity to restrain or abate it, in favor of a private person suffering special damages thereby. But a town cannot file such a bill as the representative of its inhabitants, although a corporation or person creating a public nuisance may be prosecuted by indictment or information to a criminal court. Georgetown v. Alexandria Canal Co., SS 717-722.

$ 716. The compact of 1785 between Virginia and Maryland, securing the free navigation of the Potomac river, could be changed or abrogated at the pleasure of those states, or of congress, when those states ceded to the United States all control over the District of Columbia and the Potomac river included therein. Hence congress had power to create an aqueduct company and authorize it to build an aqueduct over the Potomac, even though it should impede the navigation of that river. Ibid.

[NOTES. - See 83 723–764.]


(12 Peters, 91-100. 1838.)


STATEMENT OF Facts.-- This is an appeal from a decree of the circuit court of the United States for the county of Washington in the District of Columbia, dismissing the appellants' bill. The appellants filed their bill in the court below, in behalf of themselves and the citizens of Georgetown, against the appellees, containing various allegations, the material parts of which are substantially these: That the appellees, who were defendants in the court below, had been, and then were, engaged in constructing an aqueduct over the Potomac river, at Georgetown, within its corporate limits, immediately above and west of the principal public and private wharves of the town; that the Potomac river, above and below the aqueduct, continuously outward to the sea, was a public navigable highway; that the free use of that river was secured to all the people residing on its borders or interested in its navigation by a compact between the states of Virginia and Maryland in the year 1785; that Georgetown derived its chief support and prosperity from the trade of the Potomac; that large sums of money had been expended by the complainants at the wharves of the town in deepening the water on the bar across the main channel, immediately below the town and north and west of the long bridge across the Potomac; that the defendants had constructed one massive stone pier, and were about to construct others; that byo the use of clay and earth thrown in to make close certain coffer-dams, used by the defendants in the construction of the piers, the harbor has been injured, and the depth of water in the cut or channel through the bar below the town has been diminished already, and that they apprehend serious injury in future from the same causes; that by the construction of their piers of stone, and in such a way as greatly to increase the force of the current, other earth and mud have been, and will be, washed down by the velocity of the current, so as to injure the wharves and harbor of the town, and impair the navigation of the river. The bill charges that the aqueduct can be constructed without the use of clay and earth, from which so much injury is apprehended. It proceeds to state, in minute detail, the nature and character of the injury apprehended to the harbor, wharves and navigation; and concludes with a prayer for an injunction prohibiting the defendants from further depositing earth and clay in the Potomac river, outside or inside their coffer-dams, or otherwise, to the injury of the navigation of the river and the harbor of Georgetown; and with a prayer also for general relief.

The defendants answered, denying that the complainants, the corporation of Georgetown, had any right, title or interest in the waters of the Potomac river, which they aver to be a public navigable river and a common highway; they deny that the works, in the construction of which they are engaged, are within the corporate limits of Georgetown; they deny the right of the corporation of Georgetown to file a bill in behalf of the citizens of the town; they deny the jurisdiction of a court of equity over nuisances in public rivers and highways; and also its power to enjoin them from the prosecution of the works in which they are engaged under their charter; they insist that congress had full power to grant to them the charter of incorporation, and to authorize the construction of the works in which they are engaged. They aver that they have not transcended the power conferred by their charter, which was granted to them by an act of congress passed on the 26th of May, 1830 (6 Stats. at Large, 419), which they exhibit as part of their answer. They then proceed to answer the bill at large upon its merits.

It is unnecessary to state the evidence in the case, because our opinion is founded upon considerations independent of the facts which that evidence was intended to prove.

We shall forbear also from any expression of opinion upon some of the topics discussed at the bar; because, whilst they are important in their char

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