The cases of Young v. Gregory (e) and Kirtley v. Deck (f) are decisive to shew, that the declaration in this action ought to aver, both malice, and the want of probable cause, either expressly or by equipollent expressions. There are no such expressions in ihe declaration before us; it is therefore', radically defective.
It is alledged by th.e appellee’s counsel, that the plea being demurred to is admitted, and aids the declaration so far as to make the gravamen of the action consist in the appellee’s being doubly vexed for the same cause. — Without stopping to inquire whether the plea has this effect or not, that plea does not shew, that at the time of the institution of this action, the suit in the county of Washington in the district of Columbia, had been commenced. It only avers, that the plaintiff got a Judgment in that court, for the same debt on the 19th January 1815, in an action, which may have been commenced after the institution of this suit. This objection is also decisive against the declaration, considered in this last point of view.
We are of opinion to reverse the Judgment, and enter it for the appellee, on account of the insufficiency of the declaration.
Hrookb absent.
(e) 3 Call 416.
(f) 2 Mun. 10.