The opinion of the court was delivered by
Ross, J.-The action for malicious prosecution, is Very different from that of maliciously and vexatiously arresting and holding defendant to bail. Many reasons might be assigned why the one should be sustained, which would not apply to the other. In the former, the defendant, even if acquitted, recovers no costs; in the latter, a verdict in favour of defendant entitles him to costs. In the former, the defendant has no other redress- for any injury he may have received; in the latter, he may cite the plaintiff before a judge to shew his cause of action, and if no sufficient cause be shown, he will be discharged on common bail. In the former, if felony, punishable with death, he may not be allowed to give bail; in the latter, the defendant is always allowed to give bail. In the former, he can only be exonerated by a trial and acquittal; in the latter, the defendant may have any oppressive, vexatious-or illegal process set aside, on motion to the court. In the former, the defendant cannot demand a writ of error as a matter of right;, in the latter, he is entitled to it. In the former, the defendant’s life may be put in jeopardy; in the latter it never can; no punishment can be inflicted on him. In the former, the prosecutor gives no bail; in the latter the plaintiff, until of late, must have given real pledges, who on failure of plaintiff to prosecute his suit, &c. were liable to be amerced, and the.plain tiff himself was amerceable pro falso clamare, liable to costs. See 1 Sel. Prac. Introd. 49, 50, 59. Bul. N.B. 11. The action for maliciousprosecution, properly so called, has often been brought in this State, and sustained by the courts; the action for maliciously and vexatiously arresting and holding defendant to bail, it is believed, has seldom been brought in this State, and has never received a judicial recognition. Yet it must be understood that no doubt is intended to be intimated of its lying in proper cases, and under proper restrictions; but it is not to be favoured. Enough has been said to show, there is a substantial difference between the two descriptions of action. Yet from not attending to the want of similarity between them, they have been, in modern times, considered as analogous. The same decisions and principles of law have been applied to both.
*236The practice of the courts in England, as well as the law as to' arrests, and holding to bail, is very dissimilar from the practice in this State. In England, by the statute 12 Geo. I. c. 29, certain requisites must be complied with, before any one can be arrested on civil process. The courts strictly require a positive affidavit; the sum must be specified in it, which sum must be endorsed on the back of the writ or process: for which so -endorsed the sheriff shall take bail, and for no more. If no such affidavit and endorsement be made, the defendant is not to be arrested, let the amount of debt be what it may. 1 Sel. Prac. Introd. 59.
In this State, it has long been the practice to issue the capias without any affidavit, except in a very few cases sounding exclusively in damages, on which the attorney directs the endorsement of such bail as he may think sufficient. If the defendant think himself aggrieved, he may apply to a single judge in vacation, or to the court in term time, to be discharged on common bail; or to have it mitigated- Until application is made to the judge or to the court, the affidavit of the debt is seldom made; and even then the plaintiff’s- attorney often obtains time to- notify the plaintiff to come in and make the requisite affidavit. Many of those suits are brought with a view to submit them to arbitration, under the law of 1806, by which means they partially obtain, it is said, the benefit of a bill of disclosure; acquiring from the investigation before the arbitrators, the evidence of a cause of action they had nothing but a mere suspicion of before.
By the rules of court, where the affidavit is not positive, but yet sufficient to convince the judge that there is- good cause of action, especially where it is founded on a bond, note, letter, or other paper signed by the defendant, the judge may, at his discretion,hold the defendant to bail: thus giving a power to the judge to dispense with the production of a positive affidavit of the debt and the amount thereof, if a paper signed by the defendant is produced. The rule indicates in strong terms, and in language that cannot be misunderstood, that a bond signed by the defendant is a probable cause of action. These matters have been brought into view for the purpose of shewing, that instead of relaxing the restrictions and limitations to which a malicious and vexatious suit is subjected in the courts of Great Britain, there is every reason here, that exists there, with many additional ones peculiar to this State, arising out of the nature and mode of our proceedings, why these restrictions and limitations should be increased and not diminished. In the case of Sterling against Adams, reported in 3 Day, 411, in which most of the,cases are brought under review, analyzed, commented upon, and contrasted with great ability, the counsel for the plaintiff admitted “ that a person must be guilty of a very gross abuse of the right of suing, before he will be liable for vexation- To the ex*237ercise of that right great indulgence is given. If the object of the plaintiff be in any degree to obtain right, his temper is not to be regarded. When all the facts, known or believed by the plaintiff! or existing without his knowledge, would afford any probability to an honest mind that there ought to be a recovery, probable cause in law exists, and a suit, however unsuccessful, injurious, or vindictive, will entitle the defendant to no remuneration. Here is often great wrong and no remedy — it is “damnum absque injuria.” A man, from a málicious motive, may take upon himself a prosecution for real guilt, or he may from circumstances which he really believes, proceed upon the apparent guilt, and in neither case, is he liable to this kind of action, 6 Mod. 73. To support it there must be express malice, without any colour of cause. Holt 4. 6 Mod. 25. He may therefore from malicious motives, proceed to collect a real debt by the process of capias and bail, or he may from circumstances which he really believes, proceed upon the apparent evidence of debt, to collect it by capias and bail, and in neither case be liable to an action for vexation. The plaintiff’s declaration in •this action shews, that there was a probable cause for the original suit. It admits the suit was founded on a bond given to the testator, Ludwig Zearing, in his lifetime. Want of probable cause cannot be implied from an acquittal of a defendant in a criminal prosecution, or a failure to recover in a civil suit. 2 Selw. N. P. 1057 in note 2. Day's Coke upon Litt. 161, a, note 297. Although an action for a malicious prosecution will lie, it is not to be favoured. 1 Salk. 15. Bul. N. P. 14. 1 Wilson, 231. It is difficult to define with precision in what cases, and under what circumstances this action will lie. It may however be safely laid down as a general proposition, that, wherein the original action the defendant is-obliged to set up some collateral matter by way of justification, or defence, which does not appear on the declaration, or the faceof the instrument declared on, probable cause is admitted. This proposition is supported by precedent and reason. 3 Day's Rep. 432, These principles ■when viewed collectively, manifestly shew, that the plaintiffs’ in error had sufficient probable cause to shield them from this action, even if the suit had been against them in their individual capacity. But this suit is clearly against them in their representative capacity as executors. It is for acts done by them as executors. The declaration recites that the writ was issued by them as executors on •a bond given to the testator, and the proceedings which took place on that writ, as the foundation of defendant’s claim, to damages. But it is contended that all these recitals may be rejected as surplusage, as merely descriptive of the persons; and so the court below charged the jury. The answer to this position will be found ■in Robins v. Robins, 1 Salk. 15, in which the complaint was that the plaintiff .caused the defendant to be arrested and held to bail, *238where by law, no bail was required — Per Holt. Ch. Jus. “ This is a tender action, you must shew that the plaintiff being indebted to the defendant in so much, the defendant took out such a writ for so much more, on purpose to hold him to bail, you should set out the ' writ.” If it is necessary to set out the writ in the original suit, it is equally true, that it is necessary to prove it as set out. The record of the original action must be produced on the trial, and given in evidence 2 Selw. N. P. 1062. It must correspond with allegations in the declaration, or it cannot be given in evidence. It therefore cannot be considered as surplusage. It is an essential and material .allegation without the proof of which the plaintiil could not support his action, The declaration ought to set forth the sum due, and the process specially, and that the first action is determined, See 2 Selw. N. P. 1060. Yelv. 110. The action then is against the plaintiffs in error as executors, for acts done by them as executors. It is the first attempt, it is believed, that ever has been made to support such an action. No such case has been produced, and it is belieyed none such can be found in the books, or the industry of the defendant’s counsel would have discovered it. It would be .an extension of the remedy by this kind of action, which, it has already been shewn, ought never to be permitted. Executors can ¡only be made liable in their individual capacity, if at all, for acts done by them in their official character, by such irregular, improper and gross misconduct as would render them tresspassers ab initio. In such a case, trespass vi el armis, and not case would be the remedy.
Deplorable would be the situation of executors, if they would be made liable in actions for vexatious suits. They are bound to use every diligence in collecting decedent’s debts. Not only to know themselves that they could not be recovered, but to be able to shew satisfactorily in the settlement of their accounts, to a querulous legatee or creditor, that they could not be collected. They may knot? a book debt or note is barred by the statute of limitations; but they cannot know that the debtor will avail himself of that defence. They may know that a bond will be presumed to have been paid from lapse of time; or that the obligor has some defence .arising out of other transactions, or depending on some collateral matters involving intricate questions of law and fact. But they are pot therefore to refrain from bringing suit; nor tobe deterred from doing so, by being in danger of subjecting themselves to an action for vexation, This would be contrary to policy and common sense, because it would be to say to them if you neglect to enforce the collection of the decedent’s debts with all due diligence, you shall be liable for such neglect, but if you attempt to do it, by the ordinary process of the law, you must run the risk of rendering yourselves liable to a vexatious and malicious suit. This would be *239placing executors on the bed of Procrustes. It therefore appears that on an examination of this cause on principle, this action cannot be supported. The charge of the court on the first point that it could be supported, and that styling the defendants executors, was merely personal description, was incorrect. If it be examined by a comparison with the decisions in each particular case, where the question has arisen, what shall amount to a reasonable or probable cause, it will be found that the court were equally incorrect. In this cause, the bond to the testator in his lifetime, coming to the hands of the executors, appearing on the face of it, to be due and unsatisfied, was much stronger probable cause than has been considered in most cases found in the books, sufficient to protect plaintiffs from actions for malicious prosecutions or vexatious suits. Many of the cases will be found collected in Day's note to Coke upon Litt. page 161, a, note 297, and in 3 Day's Rep. 411. Selw. N. P. 1057-8. A sufficient probable cause is laid in the defendants declaration in this very action; no averment being laid that the plaintiff knew the bond was paid, or in any way satisfied. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances, alledged to shew it probable or not probable, are true and existed, is a matter of fact; but whether supposing them true, they amount to a probable cause, is a question of law. 1 Wilson, 232, Day's Coke upon Litt. 161, a, note 297. Bul. N. P. 14. The plaintiffs in error had, clearly, reasonable and probable cause for arresting the defendant and holding him to bail. The court should have so instructed the jury. They should have informed them that the fact not being disputed, but expressly set forth in defendant’s declaration, that the original action was founded on a bond, which was given to Zearing in his lifetime, and which came to the hands, of plaintiffs in error as executors, appearing on its face to be due and unsatisfied, was a sufficient probable cause to justify the plaintiffs’ in error in arresting and holding defendant to hail, and that the verdict must be for the plaintiffs’ in error, There was also error, therefore, in the charge on the fourth and fifth points. The other points of the charge are too vague to give any accurate information to the jury. Upon the whole, it sufficiently appears that in this cause, the plaintiff below should have beén nonsuited, or not permitted to sustain his action.
Judgment reversed.