cause a; but not unless a full and correct statement of the facts be laid before counsel b. Probable cause, means a probable cause of action, and not a probable cause for any particular form of action; therefore where a party had been arrested in a joint action of covenant when he was not liable jointly but separately, Mr. Justice Littledale held, at Nisi Prius, that it did not imply a want of probable cause; "the question of probable cause," said he, "is not affected by any technicality as to the form of the action." e Probable cause, to prove an available defence, must have operated on the defendant's mind at the time he did the act which forms the basis of the action; the defendant, therefore, must shew that he had a knowledge of facts sufficient to induce him to believe the plaintiff's guilt, before he made the charge complained of d. SECTION IV. DETERMINATION OF THE ORIGINAL SUIT. To support an action for a malicious prosecution or arrest, it must appear that the prosecution or former suit was determined; evidence of an acquittal by the verdict of the jury, or of the plaintiff's discharge in consequence of the grand jury not finding a true bill, will shew a legal termination of the prosecution e. But entering a nolle prosequi by the attorneygeneral is not a sufficient determination of the prosecution, because new process may still issue on the same indictment. Proof that no declaration was filed within a year after the return of the writ, has been held to be sufficient evidence of the suit being at an end ; and it makes no difference in this respect, that the cause is removed by habeas corpus from an inferior court, for even in such case the cause is not out of court until the end of the year, and by the 35th rule of H. T. 2 W. IV. it is provided, "that in all the courts the plaintiff shall Per Bayley, J., in Ravenga v. Macintosh, 2 B. & C. 697. Snow v Allen, 1 Stark. 502. с Hewlet v. Cruchley, 5 Taunt. 277. Whalley v. Pepper, 7 C. & P.511. 4 Delegal v. Highley, 3 Bing. N. C. 959. Docwra v. Hilton, cited, id. 2 N. & Perr. e B. N. P. 13. Hunter v. French, Willes, 517. Morgan v. Hughes, 2 T. R. 225. Fisher r. Bristow, Doug. 215. f Goddard v. Smith, 6 Mod. 261. Pierce v. Street, 3 B. & Ad. 397. be deemed out of court, unless he declare within one year after the process is returnable." a upon Proof of a rule to discontinue, and that the costs have been taxed and paid, is sufficient evidence of the termination of the suit b. And when the judgment of discontinuance is entered up, it relates back to the day when the rule to discontinue is taken out, so that the action is to be considered as discontinued from that time". So a rule to stay proceedings, and deliver up to the then defendant the bill of exchange which the action was brought, is a sufficient termination of the proceedings d. But the mere acceptance of the debt and costs, without the intervention of the court, cannot properly be called a determination of the suite. It seems, however, that the acceptance of the debt and costs in satisfaction of the action, under a judge's order, or a rule of reference, is a sufficient determination of the suit. Where upon the abandonment of a suit in that court by the plaintiff, it being usual to make an entry in the minute-book of "withdrawn" by the plaintiff's order, opposite to the entry of the plaint; held, that proof of such entry in the minute-book was sufficient to prove an allegation that the former suit was "wholly ended and determined." g Where the original suit was determined by a stet processus by the consent of the parties, Lord Tenterden nonsuited the plaintiff, observing, " that the termination of the suit must be such as to afford primá facie evidence that the action was without foundation h. SECTION V. THE DECLARATION AND PLEADINGS. THE declaration should state all the circumstances necessary to support this action, namely, the falsehood of the original charge, Variance. Description the malicious motives of the defendant, the absence of reasonable or probable cause, the legal termination of the suit, and the damage to the plaintiff, either by expense, imprisonment, or to his reputation. The words "falsely," or "wrongfully," have been held to be sufficiently expressive of a malicious intent. But the words "wrongfully and injuriously” are insufficient, as they do not necessarily imply malice b. The proceedings in the former suit should be correctly stated, for a variance will in some cases be fatal. Where it was stated that the trial and acquittal was "in the court of our lord the king, before the king himself," and it appeared that the trial had been at Nisi Prius, it was held to be a fatal variance c. So where the declaration stated that the defendant imposed upon the plaintiff the crime of felony, and upon the prosecution of the information taken before the justices, it appeared that the charge amounted only to a civil injury, though the warrant was to arrest the plaintiff on a suspicion of felony; it was held to be a fatal variance d. The statement of an indictment should accord with the caption or style of the particular sessions; but a declaration for maliciously indicting at the general quarter sessions, instead of the general sessions, was held sufficient, because the indictment was cognizable at both sessions, but if the offence had been cognizable at the quarter sessions only, the declaration would be bad. After verdict, in an action for a malicious prosecution for perjury, it was held to be no objection to the description of the court in which the indictment was found, that the names of the justices before whom the session of oyer and terminer was held, were not set out; and it was deemed sufficient to allege, that at such a session the defendant maliciously indicted the plaintiff for wilful and corrupt perjury, without describing more particularly the circumstances under which the alleged perjury was supposed to have been committed. Where the charge was laid before a magistrate the statement of it should be taken from the magistrate's warrant, or from A statement of the substance of the charge will the examination of the defendant on oath. If the facts be stated specially, they must be proved as laid; but if the substance only of the charge be stated, a variance will not be fatal unless it be a different charge. Where the declaration be suffialleged that the defendant charged the plaintiff before a jus- cient. tice with assaulting and beating him, and the charge in fact was for assaulting and striking; it was held, that as the declaration did not profess to describe the warrant, and had stated the charge correctly, in substance, the variance was not material a. An averment of the day of the original trial should correspond with the record of the acquittal b. A declaration in an action for a malicious prosecution, which alleges that the defendant charged the plaintiff with felony, is supported by evidence that the defendant stated to the magistrate that he had been robbed of specific articles, and that he suspected and believed, and had good reason to suspect and believe, that the plaintiff had stolen them. In an action for a malicious arrest it is necessary to state the writd. In an action for maliciously holding to bail in an inferior court, which has no jurisdiction,' the declaration must aver the scienter of the defendant of the want of this jurisdiction . of the termination of suit. The declaration should shew that the former prosecution or Averment suit was legally determined, though the omission will be aided by verdicts. And if the proof of the determination of the former the proceedings does not correspond with the allegation, it will be a fatal variance. As where the declaration alleged, "that the plaintiffs in that action did not prosecute their suit, but therein made default, whereupon it was considered that the said plaintiffs should take nothing by their bill, and the pledges to prosecute be in mercy," &c.; it was held, that this being an allegation of nonsuit, was not proved by a rule to discontinue, and that the variance could not be amended h. If the mode of determining the former action be stated, and a Bine . Moore, 5 Taunt. 187. And see Davis v. Nook, 1 Stark. 377. Freeman v. Arkill, 2 B. & C. 494. b Pope v. Foster, 4 T. R. 590. с Davis v. Noak, 1 Stark. 377. d Gadd v. Bennett, 5 Price, 540. 1 Saund. 228. b. 2 Ch. Pl. 407. Averment of special damage. Pleading. the statement conclude, "whereupon and whereby," the said suit was ended and determined, and there be a plea traversing that allegation, it must be proved as alleged a. It seems, however, to be sufficient to state generally, "that the suit was ended and determined," or "that the defendant was acquitted," without stating the manner how b. The special damages, if any were sustained by the plaintiff, should be stated in the declaration, otherwise he will be precluded from giving evidence of such at the trial. Where the plaintiff declared that the defendant maliciously and without probable cause, preferred an indictment against the plaintiff, it was held to be sufficient to shew that some of the charges contained in the indictment were preferred maliciously and without probable cause, though there were good grounds for the rest d. In this action, the plea of not guilty puts in issue the fact of prosecution and the want of probable cause. SECTION VI. EVIDENCE. THE plaintiff must prove all the material averments in the declaration which are not admitted by the pleadings. The fact of the prosecution and acquittal may be proved by the production of the record, or of an examined copy of it. And though the record, or a copy of the indictment for felony cannot be regularly procured without the order of a judge, or the fiat of the attorney-general, yet if it be offered in evidence, it is no objection to its admissibility that no such order or fiat had been obtained 8. Some proof should be given of the identity of the |