(dissenting). Although the trial judge was in error in assuming that the action of the justice of the peace in binding the plaintiff in error over to the district court, and the subsequent action of the prosecuting attorney in presenting the informa-tions against him, conclusively negatived the want of probable cause, yet, if for any reason his action was sufficient in law, the judgment should not be disturbed.
The judgment of the justice’s court, it is conceded, as matter of law, prima facie negatived the existence of malice and want of probable cause. That was re-enforced by a like prima facie presumption arising on the official action of the state’s prosecuting attorney, taken presumptively after due inquiry made. These special facts appearing on the face of the petition, without more, negatived the existence oi malice and want of probable cause, as matter of law. It is a well-established rule of pleading that a general averment is limited and controlled “by specific allegations regarding the same subject-matter.” Boatment’s Bank v. Fritzlen, 135 Ted., loc. cit. 659, and citations, 08 C. C. A. 288; Gustafson v. Chicago, R. I. & P. Ry. Co. (C. C.) 128 *228Red., Ioc. cit. 88, and citations. The allegations of the petition respecting said prosecution and informations are summed up as follows:
“That the said defendant In making all of said charges hereinbefore alleged and set forth, and causing the filing of said complaints before said justice of the peace, and said informations before the district court as aforesaid, and in prosecuting the plaintiff thereon as alleged herein, acted maliciously and without any reasonable or probable cause whatever.”
It is true that in the ninth paragraph, in the ad damnum clause, occurs the language, “and that defendant, well knowing that there was no just, reasonable, or probable cause for the prosecution of plaintiff, initiated and carried on said prosecution.” The words “well knowing” were employed alone by way of recitation, and not as an inde-, pendent, affirmative allegation of a substantive fact. This, by all the authorities, is no allegation of a requisite fact. It is so expressly held, under the Colorado Code, by the Supreme Court of that state in Leadville Water Company v. Leadville, 22 Colo. 297, 45 Pac. 362. It is an ineffective assumption of falsity, nowhere directly alleged. Stringer v. Davis, 30 Cal. 318-321.
The majority opinion accepts the discussion of Simpson, C., in Ross v. Hixon, 46 Kan. 550, 26 Pac. 955, 12 L. R. A. 760, 26 Am. St. Rep. 123, as a correct exposition of the law of the case. It does not appear what was the state of the pleadings in that case. The question of the effect of the action of the justice of the peace in binding over the party seems to have arisen only on the trial, and the question discussed by the commissioner was merely as to the evidential effect of that action. The trial court, as here, took the view that it was conclusive rather than merely prima facie; and the strength of the opinion is directed against that proposition of law. After a brief review of the authorities, it was held that the finding of the justice of the peace was not conclusive, but only prima facie evidence, of the existence of probable cause. While asserting that, if the justice had been invested with judicial power to render á final punitive judgment and had done so, it would then have been incumbent on the plaintiff to attack it “for fraud or. undue means” in the prosecution, yet, as the judgment of the justice of the peace was only prima facie, “all that is necessary for the plaintiff to do to win is to overthrow it by a preponderance of the evidence.”
I submit that that decision does not touch the question here involved as to the effect of the pleading, and, if it did, the logic and law of it are bád. The opinion in Giusti v. Del Papa, 19 R. I. 338, 33 Atl. 525, is directly in point, as the question of law arose on the pleading. There, as here, the petition, after alleging that the defendant maliciously and without probable cause prosecuted criminally the defendant, disclosed the fact that the district court, having the committing jurisdiction, bound the defendant over, after arrest and hearing, to await the action of the grand jury for indictment; before which court the state’s attorney declined further to prosecute the case. It was first held that the action of the district court in so binding over the plaintiff was conclusive, but on rehearing the better approved rule was asserted that it constituted only prima facie evidence of the existence of probable cause. The oinion, both on authority and reason, after especially re*229jecting- i lie authority of the said Kansas case, stoutly maintains that, where the petition discloses on its face the prima facie existence of probable cause, it must make the averment of some additional fact or facts to rebut the presumption; and this is not done by the mere allegation that the prosecution was malicious and without probable cause for the sensible reason that “the pleader must state a cause of action, and he fails to do so unless lie overthrows the prima facie effect of probable cause arising' from the binding over.”
It. does not meet the situation, in my judgment, to say that the pleader is not required to jilead his evidence but only the ultimate facts, and, therefore, as the ultimate fact to be tried is whether or not the prosecution was without probable cause, it is sufficient to so aver. The question here involved is, if, after having alleged that the prosecution was malicious and without probable cause, the pleader then disclose in the petition the judicial action of the justice of the peace and the presentation of informations by the state’s prosecutor -in his official capacity, prima facie negativing the first averment, without further allegation of some special fact overcoming that negation, has he stated a cause of action? Demonstrably, it seems to me, he has not.
Had the petition alleged that the defendant maliciously and without probable cause had the plaintiff arrested and prosecuted, of which he was acquitted, it would have stated a good cause of action. If in answer the defendant pleaded, inter alia, that on due hearing before a committing magistrate he had adjudged that there was probable cause for the charge and thereupon bound the accused over to the district court, beyond question he would have interposed new matter in avoidance. So much so that, if it were not denied in the replication, the defendant would be entitled to judgment on the pleadings. Or, if the reply should admit such allegation of new matter and then simply allege that the prosecution was malicious and without probable cause, what sort of logic or reason would it be to say that the new matter effective for avoidance, pleaded in the answer to the allegation of malice and want of probable cause in the petition, is sufficiently met by a reply merely reaffirming malice and want of probable cause? It is recognized bad logic to reason in a circle, and it must be bad pleading in rebuttal in a law action that but reaffirms the original allegation of the petition.
In principle, the situation of the pleading is little different from that in Hayes-Young Tie Plate Company v. St. Louis Transit Company, 137 Fed. 80, 10 C. C. A. 1, in which it was held, in effect, that, where facts are set out in a pleading from which the law draws a certain presumption, it is essential that this presumption should be overcome by further averments of specific facts and circumstances which, if true, would overcome such presumption. And the bald statement of a general proposition at variance with the presutnption is not availing. In the case supra, the question presented by the bill of complaint was whether upon its face an application for a patent for an invention had been abandoned by unavoidable delay. The bill having disclosed on its face that the Commissioner of Patents had so ruled, the court, speaking to the general averments of the bill, said:
*230“These allegations disclose no facts from which the. court can determine when, how long, or in what way the delay was unavoidable. Averments of specific facts or circumstances from which the court may see that, if they arc true, the fact was probably otherwise than the finding, are essential in a pleading for the purpose of overcoming the legal presumption that the determination of a question of fact by an executive officer * * * is correct. Allegations that the fact differs from the finding, or that the decision is wrong, without more, are futile.”
Then, adverting to the contention that the bill shows there was no abandonment of the first application, because of the general averment that the second application was filed as a substitute for or continuation of the original application, the court said:
“But the answer is that this is a general averment of a conclusion, which is inconsistent with and is overcome by the specific allegations iu the pleading that the first application became abandoned, that the commissioner adjudged that the delay in prosecuting it was not unavoidable and that the application could not be revived, and that the bill disclosed no facts to overcome the presumption of the correctness of this conclusion. A general allegation in a pleading is controlled and limited by specific averments on the same subject.”
As, on the face of the petition in question, prima facie the existence of malice and want of probable cause was negatived, it was essential, to constitute a cause of action, that some additional specific fact should have been averred to overcome it, such as that the affidavit of Me-George, on which the prosecution was instituted, was false and known by him to he false, or that he procured witnesses to testify falsely, or that he had reason to believe they were false, or some equivalent fact whereby the action of the justice of the peace and the'prosecuting attorney were influenced. Otherwise, how is the defendant, on trial of the action for damages, to secure the benefit of the judicial action of the committing magistrate and that of the prosecuting attorney ? It is manifest from the detailed reiteration of the proceedings in the petition, from the filing of the first affidavit to the last information presented by the prosecuting attorney, that they are designed in and of themselves to aggravate the damages. Under the simple statement in the Kansas case that it is a mere question of the preponderance of evidence, is it intended to say that when all this evidence and the pleadings are submitted to the jury they are to be told merely that it devolves upon the plaintiff to establish his case by a mere preponderance of the evidence?
Unless told by the court that, unless they find from the evidence that the action of the justice of the peace and that of the prosecuting attorney was brought about by false affidavits and testimony, and known by McGeorge to be false, or which he had no reason then to believe to he true, or the like, the jury would be authorized to return a verdict for the plaintiff on a mere preponderance of the evidence as to whether or not there was, in the first instance, probable cause for the prosecution. This situation emphasizes the necessity, after the petition has disclosed on its face the action of the justice of the peace and the prosecuting attorney, of alleging some additional specific fact or facts to rebut the prima facie effect of those actions. What is necessary to be proven must be alleged in the pleading.
*231The rule of strictissimi juris ought to be applied both to the pleadings and the proofs in this action, for the reason that:
“Actions for malicious prosecution are regarded by law with jealousy.Lord Holt said more than 200 years ago that they ‘ought not to be favored, but managed with great caution.’ Their tendency is to discourage prosecution for crime, as they expose the prosecutors to civil suits, and the love of justice may not always be strong enough to induce individuals to commence prosecutions, when, if they fall, they may be subjected to the expense of litigation, if they be not mulcted In damages.” Newell on Mal. Pros. §S 13~15.
Chief Justice Shaw, in Cloon v. Gerry, 13 Gray (Mass.) 201, said:
“This kind of suit, by which the complainant in a criminal prosecution is made liable to an action for damages, at the suit of the person complained of, is not to be favored; it has a tendency to deter men who know of breaches of the law from prosecuting offenders, thereby endangering the order and peace of the community.”
The judgment of the Circuit Court, in my opinion, should be affirmed.