dissenting. I feel constrained to dissent from the judgment in this case, for two reasons :
I. It is a rule of practice in this sort of action, established by many decisions, that plaintiff must allege, and prove, want of probable cause for the prosecution of which he complains.
Now, granting that the detail of the facts preceding the prosecution, in plaintiff’s petition set forth, stands in lieu of a precise averment of want of probable *340cause, as the opinion of the majority of the Court implies ; yet I find one of the most material of the facts thus detailed, directly contradicted by the evidence.
The petition avers, “ That the reason of said check being dated on the 8th day of December, instead of the 3d, the day on which it was drawn, is, (as was stated by petitioner to defendant’s clerk before drawing the same,) that at that time petitioner did not have the money in bank to meet the said check, but would endeavor to make collections, and deposit money enough to meet the said check, when it should be presented fof payment at the bank ; ” “ that he gave his said check with the most confident expectation of being able to make collections, and deposit money enough in time to meet the said check when it should be presented at said bank for payment; ” “ that on the morning of the day of the date of said chock, viz : the 8th day of December, 1857, not' having been able to malee collections of money sufficient to deposit in bank to meet the said check, he sent a message,” etc. But the bank-book of plaintiff shows the following state of facts :
1857 Dec. 3 Note Discounted, Net Proceeds........ ...© 212 00
“ “ “ Cash Deposited......................... 208 01
“ “ 4 “ 372 54
“ “ 5 “ 143 50
“ “ 7 “ 180 00
“ “ 8 “ 204 12
Total..............................©1380 77
It is thus proved, contrary to the allegations of the petition, that plaintiff was able to make deposits, and did make deposits, in the bank in which this check was payable, between the time at which it was drawn, and the time at which it was dated and presentable, more than four times sufficient to have met this check. And a statement from the books of the bank, also in evidence, shows that the money thus deposited, had been withdrawn, upon other'checks of plaintiff, before the check given to defendant was presented, which was on the day that it was presentable. This, if not fraud, as charged in defendant’s affidavit before the Recorder, has certainly so much the appearance of fraud, as to require explanation, which the plaintiff has not thought proper to give. At all events, there is here a material variance between the allegata and the probata, which in my opinion is fatal to plaintiff’s case. Plaintiff puts his case before us, distinctly, upon the ground, that plaintiff’s check of ©290 25 was given to defendant upon the express understanding that plaintiff had no money in bank at the time it was so given, but would deposit money to meet it, by the time it was dated and presentable ; that circumstances beyond the control of plaintiff, to-wit: the impossibility of.making collections, prevented him from making deposits in conformity to the understanding between the parties. And the case, as disclosed by the evidence on trial, is, that it is not true that plaintiff could not make deposits to meet his checks when presentable, for that he actually did make sufficient deposits in the interval between the making of the check and its date, and that, if there was not money in the bank to meet the check, it was by the act of plaintiff himself having withdrawn the money from bank.
It seems to be considered, that defendant could not honestly and with probable cause make the affidavit, that defendant had attempted to defraud him : because he was informed when he took the check, that plaintiff had no money in bank. But we are to notice, that the state of plaintiff’s bank account on the 3d December, was not the question ; but that the check called for money on the 8th December, five days ahead ; and that defendant’s clerk, on receiving the check, receipted the bill of defendant against plaintiff, as for cash received in payment of the same.
*341II. The second reason for which I think this action ought to fail, is, that there is no proof that plaintiff has been discharged in due course of law, from the criminal prosecution of which he complains as malicious.
An affidavit was made by defendant against plaintiff, under-a penal statute, which inflicts imprisonment at hard labor in case of conviction. Upon this affidavit a warrant was issued by the Recorder of the Second District of New Orleans, and plaintiff was arrested. Being brought before the Recorder, bond ivas taken, with security, for his further appearance, and several persons having made to the Recorder representations of the fair character of plaintiff, that officer informed the counsel of plaintiff, Mr. Field, that the prosecution should be quashed and plaintiff discharged, provided he made good his check in bank. This was one or two days after the affidavit was made. On the same day, the Recorder repeated to the plaintiff the conversation lie had with Mr. Field. Plaintiff wont to the bank and made his check good ; and the Recorder dismissed the case. In this arrangement, defendant was not consulted. These facts are proved by the testimony of the Recorder himself.
According to the authorities, this is not a discharge from a criminal prosecution; upon which to base an action for damages against the prosecutor. Starkie says, “ The proofs in an action for a malicious prosecution are, 1st. a prosecution by the defendant, from which plaintiff has been discharged. It must appear that the plaintiff was acquitted of the charge; it is not sufficient to prove that the proceeding was stayed by the nolle prosequi of the attorney-general; otherwise if he had pleaded not guilty, and the attorney-general had confessed it; and it is sufficient that the party had been acquitted upon a defect in the indictment.” Met-calf’s Starkie on evidence, part 4, verbo malicious prosecution.
And Mr. Greenleaf, vol. 2, page 449, says, “ So, if it was a criminal prosecution, the like evidence must be given of its termination. And it must appear, that the plaintiff was acquitted of the chargeit is not enough, that the indictment was ended by the entry of á nolle prosequi; though if the party had pleaded not guilty, and the attorney-general confessed the plea, this would suffice. So, if he was acquitted because of a defect in the indictment, it is sufficient. If the party has been arrested and bound over, on a criminal charge, but the grand jury did not find a bill against him, proof of this fact is not enough, without also showing, that he has been regularly discharged by order of court; for the court may have power to detain him, for good cause, until a further charge is preferred for the same offence. But in other cases, the return of ignoramus on a bill, by the grand jury, has been deemed sufficient.”
From these authorities, it is plain, that a party who desires to hold another liable to him in damages for having prosecuted him criminally, must present himself armed with a verdict of a petty jury, empannelled to try him for the offence with which he has been charged ; or at least with a discharge by the court seized of jurisdiction to hear the cause upon the consent of the attorney-general, or a return of a grand jury. The least that is required by any of the adjudged cases, is a return of an indictment “ not found ” by the grand jury. How different these are, from a compromise by an examining magistrate, acquiesced in by the accused under advice of counsel, needs no comment. Why did not plaintiff meet the charge before the only tribunal, legally competent to dispose of it?
I think the judgment of the court below upon the verdict of the jury, ought to be reversed ; and that this suit should be dismissed.
Land, J., absent.