at the ensuing term in Lincoln, delivered the opinion of the court, as follows.
The writ in this action contains three counts ; and the jury have found "the defendant guilty in manner and form as the plaintif has alleged in each count in his writ,” and assessed entire damages. The motion in arrest of judgment, is grounded upon the idea that the second count is totally defective. If either count is bad, the judgment must be arrested, unless the alleged defect has been cured by the verdict. The authorities are clear on this point. Trevor v. Wall 1 D. & E. 151. Hancock v. Hay*229wood 3 D. & E. 435. Holt v. Scholfield 6 D. & E. 691. 2 Chit. Plead. 171, b. Indeed this point is not contested by the plaintiff’s counsel. As to the second count, there can be no question that it would have been bad on demurrer. To this point may be cited, 2 Chit. Pl. 242, 248, 249. Sutton v. Johnson 1 D. & E. 544. Reynolds v. Kennedy 1 Wils. 232. Farmer v. Darling 4 Burr. 1974. But it has been argued that although the second count might have been bad on demurrer, it is good after verdict ; and that the court must intend that every thing was proved, essential to the maintenance of the action. This subject was, in some degree, examined by this court in the case of Little v. Thompson 2 Greenl. 228. We now observe further that in an action for a malicious prosecution, the want of probable cause is all important; is essential and indispensable; as appears by the authorities last cited ; and we are not aware that the omission of what, is absolutely essential to the maintenance of an action, can ever be cured by verdict. The authorities on this head are numerous. The principle is laid down in precise language in 1 Chitttfs Pleadings 228, e. in these words — “ But still, “ if the plaintiff cither states a defective title, or totally omits £í to state any title or cause of action, a verdict will not cure í£ such defects, either by the common law or by the statutes of £: jeofails ; for the plaintiff need not prove more than what is “ expressly stated.” The following cases support this principle,, Rushton v. Aspinall Dougl. 679. Avery v. Hoole Cowp. 825. Buxendin v. Sharp 2 Salk. 642. Spieres v. Parker 1 D. & E. 141. Bishop v. Hayward 4 D. & E. 472. In Rushton v. Aspinall, which was an action against an indorser of a bill of exchange, there was no averment of a demand oii the acceptor, and of notice to the defendant. This was fatal after verdict. And in the above case of Buxendin v. Sharp, which was an action for keeping an unruly and mischievous bull, there was no averment of a scienter on the part of the defendant. This was not cured by the verdict. On this point, we again refer to Little v. Thompson, and the cases there cited. At the argument it was intimated that a certificate of Mr. Justice Preble, before whom the cause was tried, but who was not then present, would remove the oh-*230jections made, by the defendant’s counsel, by shewing that no proof was offered as to the second count. On consulting him, however, no such certificate could be furnished. Indeed, the verdict, in its peculiar terms, seems to preclude every supposition of the kind suggested. Even if the evidence at the trial was not sufficient to prove the second count, as was suggested by the plaintiff’s counsel in the argument, still that circumstance would not be of any importance on a motion in arrest of judgment. Though it would be proper for consideration on a motion for a new trial, on the ground that a verdict is against evidence.
We consider the motion of the defendant, as well sustained ; and accordingly the judgment must be arrested.