Gibson v. Waterhouse

• Decision Date: 01 May 1826
• Citation: 4 Me. 226
• Parties: GIBSON v. WATERHOUSE
• Court: Maine Supreme Court

4 Me. 226

GIBSON v. WATERHOUSE

Supreme Judicial Court of Maine, Oxford

May, 1826

IN this case the defendant was charged, in the first count in the declaration, with having maliciously, and without probable cause, prosecuted the plaintiff and caused him to be arrested and brought before a magistrate, on a false and groundless charge of common barratry, and of corruption and fraud in his office of deputy sheriff; of which he was discharged by the magistrate, on the preliminary examination.

The second count was copied, in substance, from the form No. 10 in Amer. Prec. decl. p. 208, and was in these words; --" Also for that the said defendant, at the court of Common Pleas begun and held at Paris, within and for the county of Oxford, on, & c.; caused a certain bill of indictment to be drawn up against the plaintiff, charging him with being a common disturber of the peace, and oppressor of his neighbors, and stirrer up of strife among them, and with being a common barrator, moving and exciting suits between his neighbors; and caused the same to be laid before the grand jury for the body of said county; which, by reason of the plaintiff's innocence, the grand jury aforesaid returned we are ignorant; ' by all which unjust prosecution of the said defendant, the plaintiff was put to great costs" --& c.

The third count was a general charge of verbal slander, in accusing the plaintiff of barratry, extortion and oppression and charging him with being a common exciter of suits, and strife among his neighbors. Of all these offences, the plaintiff, in the preamble to the first count, alleged himself innocent and unsuspected.

After a trial upon the general issue, before Preble J. at the last August term, upon the general issue and a verdict for the plaintiff on each count, with a general assessment of damages; the defendant moved in arrest of judgment, assigning several causes, of which that principally relied upon was that in the second count, it was not alleged that the indictment therein mentioned was preferred without good and probable cause therefor.

Motion of the defendant, sustained; and judgment arrested.

Greenleaf and D. Goodenow, for the plaintiff, being called upon by the court to support the verdict upon the second count, argued that this count, in essence, was not a charge of malicious prosecution, but of slander. It charged the defendant with having caused an indictment to be drawn, and laid before the grand jury; but no prosecution could be said to be commenced till the indictment was certified to be a true bill; which in this case was never done. Prior to that time, the paper, if false, was only written slander; and therefore an allegation of the want of probable cause was superfluous. Had this count not been inserted in the declaration, yet the facts set forth in it might have been given in evidence under the third count, either in direct proof, or in aggravation of damages.

No evidence, however, was offered at the trial, exclusively applicable to the second count; as that count, and the third were substantially for the same cause of action; and the ground of the motion in arrest of judgment may be removed by the judge's certificate of this fact. Barnard v Whiting & al. 7 Mass. 358. Patten v. Gurney 17 Mass. 187. If this cannot be had, yet after verdict the court will presume that all such facts were proved as are necessary to support the finding of the jury.

But admitting the count to be incurably bad; yet as there are good counts sufficient to justify the verdict, and the plaintiff has prevailed upon a trial of the merits, it will not be necessary wholly to deprive him of this remedy by arresting the judgment; as the offensive count may be removed, under leave to amend, after a venire de novo is awarded.

Fessenden for the defendant, in support of the motion, replied that the want of probable cause was the ground of this kind of action and that whatever was the gist of the action must be alleged in the writ, as well as proved at the trial. 2 Dane's Abr. 722. Little v. Thompson. 2 Greenl. 228. But if any judgment be rendered upon this record, it will amount to a decision that it is not necessary to allege the want of probable cause, and of course not necessary to shew it at...