Forbes & Allers v. Hagman

75 Va. 168, 1881 Va. LEXIS 3

• Court: Supreme Court of Virginia
• Decided: January 13, 1881
• Status: Published

Opinion

Burks, J.,

delivered the opinion of the court.

The cause of action and the questions to be decided in ■each of these cases are precisely the same. They were argued as one cause, and will be so considered and disposed of in this opinion.

If there was no error in any of the other rulings complained of, I am decidedly of opinion that there was none in the refusal of the court to set aside the verdict of the jury and grant the defendants a new trial. Through their agent, David Mann, and on his affidavit, they procured from a justice of the peace an order to hold each of the plaintiffs to bail in the sum of $800 for an alleged debt of about $400. Upon this order they sued out a capias, by virtue of which the plaintiffs were arrested, and being unable to give the bond with security required by the statute they were committed to jail, and there confined for nearly two months, when, the action in which the capias was issued coming to trial, and after the jury had been sworn to try the issue and the evidence partly heard, a non-suit being suffered, they were discharged from further custody and the suit was never renewed.

They brought their several actions to recover damages for their arrest and detention, alleging that the proceeding against them wag without probable cause and malicious.

The defendants resided in Baltimore, Maryland, and Mann, who resided in Virginia, was their general agent in the management of their business, including the collection of debts in this State. He acted by their authority in the institution and prosecution of the proceeding complained of, and they are as responsible for his conduct in the matter as if they had acted in person. His acts were their acts. It cannot be justly claimed for them that in the particular matter which is the ground of action he exceeded his authority, and that therefore they are not accountable; for it distinctly appears that after they had been apprised of the arrest and imprisonment through Mann’s agency, they approved and adopted what had been done by him. Indeed, before any contract had been consummated between the plaintiffs and. defendants for the sale and delivery of the bricks, one of the defendants (they being partners) cautioned their agent to be very careful, as “ government contractors,” he said, “ were often slippery fellows ”; and about ten days after the arrest he came to Eichmond, and was there informed by the agent that he had the two government contractors (the plaintiffs) in jail at the suit and on account of the firm. He made no inquiry as to the grounds of the arrest, gave no directions and took no steps for their relief or discharge, but merely remarked “ that it had resulted as he expected.”

This was a virtual ratification and adoption of what had been done by the agent on the principle omnis ratihabitio retrotrahitw et mandato priori oequipwratur, which applies as well to a tort, when done to the use or for the benefit of him who subsequently adopts it, as to a matter of contract. It was said by Lord Coke that “ he that agreeth to a trespass after it is done is no trespasser, unlesss the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment.” 4 Inst. 317. So that the test of liability in such a case is said to be the consideration whether the act was originally intended to be done to the use or for the benefit of the party who is after-wards said to have ratified it. Broom’s Leg. Max. 873 (marg.).

Chief Justice Tindall, in Wilson v. Tumman, 6 Man. & Gr. (46 Eng. C. L. R.) 236, states the rule more fully thus: “ That an act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is. the known and well-established rule of law. In that case the principal is bound by the act, whether it be for his detriment or advantage, and whether it be founded on a tort or a contract, to the same extent as by and with all the consequences which follow from the same act done by his previous authority.” For further illustrations of the application of the principle see Broom’s Leg. Max. 866 d seq.; Cooley on Torts, 127-131.

The case of Lewis v. Read, 13 Mees. & Welsb. 834, cited by both of these authors, has a strong bearing on the case in judgment. As stated, a landlord authorized bailiffs to dis-train for rent due to him from the tenant of a farm, directing them not to take anything except on the demised premises. The bailiffs distrained cattle of another person (supposing them to be the tenant’s) beyond the boundary of the farm; the cattle were sold, and the landlord received the proceeds. It was held that the landlord was not liable in trover for the value of the cattle, unless it were found by the jury that he ratified the act of the bailiffs with the knowledge of the irregularity, or that he chose, without inquiry, to take the risk upon himself, and to adopt the whole of their acts.

How, the defendants in the present case were partners in business and each therefore was agent for the other in the partnership matters, and when one of them received information from their common agent, that the latter had in their names and for their use and benefit instituted a suit against the plaintiffs and caused them to be arrested and detained in prison, they chose, “without inquiry” (as it is expressly proved), to take the risk upon themselves, and to adopt their agent’s acts as their own. They certainly ought to be in fact, as in law they are, bound by these acts.

There was no dispute about the facts of the arrest, detention in prison and final discharge of the plaintiffs, and the termination of the action against them. The main controversy before the jury was, whether the proceeding was without probable cause and malicious; and the burden of proof was on the plaintiffs. Various definitions of “ probable cause,” when a question, as it always is, in suits for malicious prosecution, are given by judges and text-writers. Some, of them are stated in the opinion in Scott & Boyd v. Shelor, 28 Gratt. 891, to which I beg to refer. Modifying the definition there approved as supported by the greatest weight of authority, when the action is for a malicious prosecution on a criminal charge, so as to adapt it to the present case, I should say that probable cause for a proceeding under the statute (Code of 1873, ch. 148, § 33) holding a defendant to bail and arresting and detaining him until the bond required by the law has been given or until he is otherwise legally discharged, is a bona fide belief by the plaintiff (or his agent acting for him) in the existence of the facts essential under the law for such a proceeding, founded on such circumstances within his knowledge at the time the proceeding is taken, as would warrant a man of ordinary caution, prudence and judgment, under the same circumstances, to entertain such belief. In other words, applying the rule to the parties in this case, Mann must have believed when he made his affidavit that the facts sworn to therein were true; that is, that the plaintiffs in the then suit had cause of action against the defendants in that suit for the amount stated in the affidavit, and that there was probable cause for believing that the said defendants were about to quit the State unless forthwith apprehended; and, taking him to be a man of common prudence, he must have been justified in so believing from the facts and circumstances then known to him. It is not necessary that the facts sworn to should have been absolutely true, but it is necessary that he should have believed they were true, and that as a prudent man, under the circumstances then known to him, he was warranted in entertaining that belief. Scott & Boyd v. Shelor, supra (pp. 905, 906); Spengler v. Davy, 15 Gratt. 381, 388, 389; 2 Greenl. on Ev. § 455.

The test of probable cause, says a distinguished jurist, is to be applied as of the time when the action complained uf was taken; and if upon the facts then known, the party had no probable cause for action, it will be no protection to him that facts came to his knowledge afterwards that might have constituted a justification had he been aware of them. Neither is he justified, if he knew the facts, but did not believe them. Cooley on Torts, 183.

As to whether the plaintiffs intended to quit the State or not, the evidence is somewhat conflicting. Upon that point the judge certifies the evidence, not the facts; and according to the rule established by this court, we must, on this branch of the case, at least, discard the evidence of the defendants (the excepting party) and give full faith and credit to that of the plaintiffs. This done, there could be no pretext for the belief that there was any intention to quit the State. But if it were otherwise, it was still essential to the existence of probable cause for the proceeding taken, that the afiiant bona fide believed that there was present cause of action when the suit was instituted and the oapias issued, and that such belief was justified by the circumstance then known or apparent to him. I say “present cause,” because a defendant can be held to bail only in a pending suit, which, in an action at law, necessarily implies a demand presently due for which the suit is prosecuted.

It is too clear to admit of serious question, that when the suit was instituted there was then no cause of action whatever, and it would seem just as clear that Mann must have known it. The summons commencing the suit was issued August 14,1876, and contemporaneously the oapias was sued out and the plaintiffs (in the present cause) were forthwith arrested. At that time there was nothing due from them to the defendants in these causes. On the contrary, it is proved that the plaintiffs had paid to the defendants every dollar then due them under their contract and there was a balance owing to the plaintiffs in the hands of Mann, the agent. The contention on the part of the defendants was, that the original written contract between the parties had been abrogated and a new parol agreement had been substituted. If such had been the case, still under the alleged new agreement there was nothing due the defendants. It varied from the written agreement in one single particular only—namely, the size of the bricks to be furnished. In all other respects, the agreements were the same. There was no change in the price of the bricks, nor in the times or terms of payment. This was shown in his testimony by Mann,himself, who was perfectly cognizant of all the facts.

But it is contended that the defendants, in causing the arrest, through their agent, acted under the advice of counsel, and that such advice stands in law for probable cause, or is sufficient evidence of it.

It may be conceded that a party, in some cases, may act on the advice of counsel, bona fide sought and obtained, without incurring liability for damages as for a tort, even though the counsel may have mistaken the law. But to justify, something more than the mere advice must be made to appear. The facts must be shown on which the advice was given. The plaintiffs had made out a strong case of the absence of probable cause, and the defendants, to avoid the consequences, attempted to prove that the arrest for which they were sued was made under the advice of their counsel. It was incumbent on them to show under what circumstances and on what facts that advice was given. There is no doubt that their counsel advised the proceeding set on foot by them, but there is an utter absence of any proof of the facts communicated to him on which his opinion was founded. Their agent consulted with him and laid before him their books and papers, but what these books and papers contained and what statement of facts was made to him the record does not disclose. It is a significant circumstance that though Mann was examined by the defendants as a witness he did not state what facts he communicated to the counsel; and it is also worthy of observation that the counsel on whose advice, it is said, the proceeding was taken, and who must have known the facts on which he gave the advice, was not examined as a witness at all, though present at the trial and defending the actions. It seems to me that the jury had the right to infer either that material facts were intentionally withheld from the counsel, or that the omission to state them, if such was the fact, resulted from gross negligence. In ■either case the advice given furnished no protection. It would seem to be incredible, if all the material facts developed in this record, or such as it is shown were well known to Mann at the time he consulted counsel, had been communicated to that counsel, learned in the law as he is, that he would have advised the proceeding under which the defendants ware arrested.

The absence of probable cause was clearly made out and, I think, the presence of malice as plainly established.

Malice may be, and generally is, inferred from want of probable cause, though, it is said, it is not a necessary inference. It is always a question for the jury under all the circumstances of the case.

The term “ malice,” in this form of action, says Parke, J., In Mitchell v. Jenhins, 5 Barn. & Ad. 588, 594, is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.

Speaking with reference to malice in actions for mali■cious prosecutions, Judge Cooley remarks that legal malice is made out by showing that the proceeding was instituted from any improper motive, and it is not essential that •actual malevolence or corrupt design be shown. Cooley on 'Torts, 185.

And Judge Daniel, in Spengler v. Davy, 15 Gratt. 381, 394, tsays that the improper motive, or want of proper motive inferrible from a wrongful act, based, upon no reasonable ground, constitutes of itself all the malice deemed essential in law to the maintenance of the action (for malicious prosecution). See also Scott & Boyd v. Shelor, 28 Gratt. 891, 909.

The motive which prompted the harsh proceeding in this case would seem to have been to coerce the plaintiffs, by abuse of legal process, to pay a debt when nothing was-due, or secure it before it was payable. And there is not wanting evidence of express malice. While the plaintiffs were in jail one of their creditors applied to the agent of the defendants to know how he could get his debt paid. The agent replied that “he did not know, but that he had Graviller and Hagman (the plaintiffs) in jail, and intended to keep them there and feed them until he got satisfaction out of them.” There are other circumstances pointing in the same direction, but they need not be noticed.

So much for the exception to the refusal of the court to set aside the verdict of the jury on the ground that it was contrary to the evidence.

I proceed to consider the other exceptions; and, first, in regard to tke instructions to the jury. The plaintiff, in each of the cases, prayed for six, and the defendants for the same number. The court rejected all on both sides and gave three of its own.

To the first of these three, two objections are made. The jury were very properly instructed that the plaintiff was not entitled to recover without satisfactory proof that the-arrest was made without probable cause and with malice, and in what follows the judge uses the terms “reasonable and probable cause.”- It is objected that this was error;, that “reasonable and probable cause” are not the precise equivalents of “probable cause.” The objection savors of extreme technicality, and does not strike me as having much force. Without attempting to draw a distinction, if any there be, between what is “reasonable” and what is “probable,” as a justifying cause for the arrest, it may be remarked that many eminent judges and law writers seem to have considered that there was no substantial distinction. For instance, Baron Parke, in Mitchell v. Williams, 11 Mees. & Welsb. 205, speaks of “the 'absence of reasonable or probable cause.” Arid in another English case— Wren v. Heslop, 12 Jur. 600—it was left to the jury to find “whether the defendant believed that there was reasonable and probable cause for preferring the indictment.” And Greenleaf uses the language that “it must appear that the defendant knew of the existence of those facts which tends to show reasonable and probable cause,” &c. But if the term “reasonable” is not the equivalent of “ probable,” as the words were employed in the instruction, the error, if of any moment, was to the prejudice of the plaintiffs only by imposing upon them a greater degree of proof than the law required. Of this the defendants cannot complain. It is also insisted that the instruction was further erroneous in directing the jury imperatively to find for the plaintiff if they could reasonably infer malice from all the evidence in the case, thus, as alleged, depriving the defendants of the application by the jury of an inference of the absence of malice, which might be equally reasonable with an inference of the existence of malice.

I think this objection is based on a misconception of the instruction. It is not worded and framed as carefully as it might have been, but taken altogether it amounts to this in substance, that the plaintiff was not entitled to recover unless the jury believed from the evidence that he was arrested without probable cause and with malice; and if they were satisfied that he was arrested without reasonable and probable cause, they might infer malice, if the inference was a reasonable one from all the evidence in the cause. The direction to “find for the plaintiff,” with which the-instruction concludes, must be construed as based not only ■on the finding of malice which might be inferred if the inference was a reasonable one from all the evidence, but also on the finding of the existence of probable cause. The latter part of the instruction seems to have been intended to guard the jury against the error, into which they were ■apt to fall, of supposing that express malice must be proved, and to inform them that the malice necessary as an element in the plaintiff’s cause of action might be inferred, and at the same time to caution them that the inference, if drawn, should be a reasonable one from all the evidence in the case. I think there was no error in giving this instruction.

The second is in the following words: “If the jury believe from the evidence that the defendants were not residents of this State and conducted business here through the agency of John Mann, Jr., and that the said Mann was authorized to advise with designated counsel, and to act under advice of such counsel in instituting any legal proceedings for the collection of debts to the defendants incurred in such business, and that the said Mann did •advise with such counsel, and by their advice instituted ■on the 14th day of August, 1876, suit against Graviller & Co. in this cause, and sued out the capias under which the plaintiff was arrested and imprisoned, the jury are instructed that the defendants are responsible to the plaintiff for the action of the said Mann in the premises; but if the jury shall further believe that the said Mann, in so ■advising with counsel, made a full, correct and honest disclosure to counsel of all the material facts in the matter they are instructed that the advice of counsel to institute the said suit, and sue out the said capias, is evidence of probable cause for such action, and they must find for the defendants.”

The latter part of this instruction is objected to as erroneous, and it is contended that the law is correctly propounded in the fifth instruction asked for by the defendants, which was rejected. So much of that instruction as relates to the question now to be considered is in these words : “ And the court further instructs the jury, that if the plaintiffs in the action of Forbes and Allers against Graviller and Hagman, submitted a full and correct statement of their case, as they understood it, to legal counsel, and acted upon their advice in the institution of said suit, and the issuing of the capias therein, then such advice thereupon given, furnishes sufficient probable cause for proceeding accordingly.”

Comparing the two instructions, it will be observed that both declare that the statements to counsel must have been “ full and correct,” but the essential difference between them is, that the instruction rejected requires “a full and correct statement of their case, as the defendants bona fide understood it,” while the instruction given requires a full, consistent statement by the defendants of all the material facts, without reference to their understanding of their case.

And it is earnestly insisted by learned counsel, in support of the doctrine affirmed in the rejected instruction, that if a party mates an honest disclosure of the facts of his case, as he understands it, to counsel, though neither a “ full ” nor a “ correct ” disclosure of the facts of the case, as the case is understood by others, that the advice of counsel—instruments of the law, instructed and licensed for the very purpose—would still be at least probable cause for pursuing the course advised.

I cannot give my assent to this proposition as stated. It seems to be opposed to reason and sound policy, and lacks direct authority to support it. If a party acts on his own judgment in any proceeding, the facts and circumstances, which enter into the question of probable cause in that case, are such as were known to him at the time of the proceeding. This seems to be settled law. If the advice of counsel is relied on to shield him from consequences to which he would otherwise he exposed, and it is to have that effect, though the law be mistaken, surely it is nothing more than reasonable that he be required to put the counsel in possession of the facts as they are known to himself; and this can only be done by his giving a full and correct statement of those facts. These are the facts that make up “his. case” to be submitted, however he understood it. Good faith is necessary—it is indispensable—but that is not all; due care also is to be taken that the opinion which is to justify shall be founded on the same facts which would control the question of responsibility if no such opinion had been sought and given.

It is agreed, says Greenleaf, that if a full and correct statement of the case has been submitted to legal counsel, the advice thereupon given furnishes sufficient probable cause for proceeding accordingly. But he proceeds to say that whether the party’s omission to state to his counsel a fact well known, but honestly supposed not to be material,, or his omission through ignorance to state a material fact which actually existed, will render the advice of counsel unavailable to him as evidence of probable cause, does not appear to have been expressly decided. Referring then to the case of Stone v. Swift, 4 Pick. 389, he says: The rule there recognized seems broad enough to protect any party acting in good faith and without gross negligence. In that case it is laid down that if a party “ did not withhold any information from his counsel, with the intent to procure an opinion that might operate to shelter and protect him against a suit, but, on the contrary, if he, being doubtful of' his legal rights, consulted learned counsel with a view to ascertain them, and afterwards pursued the course pointed out by his legal adviser, he is not liable to this action, notwithstanding his counsel may have mistaken the law.” 2 Greenl. Ev. § 459. It is said of that case in note (1) that “ no question was made whether any material fact had been omitted”; and it may also be remarked that while the opinion requires that the party shall not mala fide withhold any information from his counsel, it does not indicate the extent and character of the information which should be given. At all events, as admitted, it is not a direct decision on the very point now in question.

On this subject Judge Cooley, in his recent work on Torts (to which reference has been made several times already), p. 183, holds the following language: “It may, perhaps, turn out that the complainant, instead of relying upon his own judgment, has taken the advice of counsel learned in the law and acted upon that. This should be safer and more reliable than his own judgment, not only because it is the advice of one who can view the facts calmly and dispassionately, but because he is capable of judging of the facts in their legal bearings. A prudent man is therefore expected to take such advice; and when he does so and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts. But the advice must be that of a person accepted and licensed by the courts as one learned in the law and competent to be adviser to clients and to the court.”

Adjudged cases sustaining this general view are numerous. The following were cited in argument: Ash v. Marlow, 20 Ohio R. 119; Ross v. Innis, 26 Ill. R. 259; Ames v. Rathbun, 37 How. (N. Y.) 289; Williams v. Vanmeter, 8 Mo. R. 339; Leaird v. Davis, 17 Ala. 27; Wicker v. Hotchkiss, 62 Ill. 107; Anderson v. Friend, 71 Ill. R. 475; Sappington v. Watson, 50 Mo. R. 83. See also 1 Hilliard on Torts, 480; Hill v. Palm, 38 Mo. R. 13, 21; Sharpe v. Johnston, 59 Mo. R. 557; Cooper v. Utterback, 37 Maryl. R. 282; Ravenger v. Mackintosh, 2 Barn. & Cresw. 225, 226.

It is said in Sharpe v. Johnston and others, supra, that the party “ must consult counsel in good faith, and not only learn all the ascertainable facts bearing upon the supposed offence, but communicate them, however immaterial he may deem them to be, to his legal adviser.” And in Hill v. Palm, supra, that “ he must not omit to state to his counsel a fact well known to him, but which he honestly supposed was not material.”

The proposition fairly to be deduced from these cases and others is, that when a party relies on the advice of counsel as furnishing probable cause for a proceeding, to give it that effect it should appear that he presented to the counsel a full, correct and honest statement of all the material facts of the case, at least so far as those facts were within his knowledge. This principle was observed in the instruction under consideration, except that the “disclosure” therein mentioned was not in terms referred to facts within the knowledge of the defendants. This, omission, however, could not prejudice the defendants; for all the material facts, as the record shows, were within their knowledge, or, which is the same thing, within the knowledge of their recognized agent, who acted for them; and in justice to the court and the parties, the instruction should be considered as having been given with reference to this state of the case.

In what has been said I desire to be understood as afflrming that the communication required to be made to the counsel should embrace all the material facts within the knowledge of the defendant; but whether the communication should go further and extend to all such material facts as, though not known to the defendant, might by the use of reasonable diligence have been ascertained by him, is a question not necessarily arising in this case as it is presented by the record, and I therefore give no opinion upon it. The cases in Illinois and Missouri seem to favor this extension of the rule.

In regard to the third instruction, little need he said. It was founded mainly on the construction of the written contract between the parties, and the jury were told that upon a certain state of facts, if found by them to be true, the defendants had no cause of action against the plaintiffs when the suit of August 14th, 1876, was instituted. It is objected that this instruction disregarded the alleged verbal agreement between the parties and the revocation of the power of attorney referred to in the proceedings, and withdrew those matters from the consideration of the jury. The answer is, that if those matters had been embraced in the instruction upon the facts of the case the result must have been precisely the same. I have already shown that there was no difference, except in a single particular, between the written contract and the parol agreement, and that difference did not substantially affect the cause of’ action. If there was no cause of action under the former, it is equally true that there was none -under the latter. The power of attorney was no part of either of the agree- • ments. It was given after the written contract was entered into to secure to the defendants their money as it became due under that contract and according to the terms of payment therein provided, which were the same in all respects as under the parol agreement. Its revocation could not affect the rights and obligations of the parties under either of the agreements.

As to the instructions ashed for by the defendants and rejected by the court.

The first, third and fourth present the question as to the responsibility of the defendants for the acts of their agent, Mann. They were very well calculated to mislead the jury and were clearly erroneous. They are based on the assumption that if Mann acted without previous authority in the particulars mentioned, the defendants were not responsible for ■ his acts; thus disregarding the evidence of a subsequent rati-fication, which has already been commented upon. Besides, the question of responsibility, in the light of the evidence, was properly presented in the second instruction given by the court.

I do not discover any error in the second instruction, which was rejected. It declared in effect that if the facts stated therein were found by the jury, they amounted to probable cause. The question of probable cause is a mixed proposition of law and fact. The existence of the circumstances, which enter into the proposition, is a question of Jact for the jury—their sufficiency, a question of law for the court. Womack v. Circle, 29 Gratt. p. 203. The instruction might perhaps have been properly given as asked for. But the whole question of probable cause, as well as the question of malice, was submitted to the jury under the first instruction of the court. Besides, the evidence of the want •of probable cause was so very clear and conclusive, that if the instruction had been given and the jury had found the facts as stated in the instruction, the court would have been bound to set aside the verdict and grant a new trial. Under such circumstances, it would have been a vain thing to give the instruction, and therefore to refuse it was not error for which this judgment should be reversed by this court.

The fifth instruction lays down a proposition of law in regard to the advice of counsel, which has been considered •and pronounced erroneous. It also declares, that to sustain the averment of malice it must be shown that the affidavit upon which the capias against the plaintiff was issued was ■wilfully false. The sixth instruction affirms substantially the ¡same doctrine.

The proposition is certainly not without respectable .authority to support it (2 Greenl. Ev., § 453), but it does not not appear to me to be sound on principle and consistent •with the idea of legal malice, as it has been defined and is ¡generally understood. As malice, in an action like this, is an improper motive or the want of proper motive in the proceeding complained of and may be inferred (see definitions given in a previous part of this opinion), clearly, as it seems to me, it may exist, and yet the charge on which the proceeding is founded not be wilfully false.

A party preferring a charge may believe it to be true, but because the circumstances are not sufficient to warrant a prudent man in entertaining that belief, there is not probable cause; and yet such a party may be influenced by an improper motive and therefore chargeable with malice in a legal sense. If the doctrine laid down in the instruction be sound, a party could never be convicted of malice, if he believed the charge to be true, however unreasonable the grounds of his belief and by whatever motives he was actuated.

This disposes of all the questions in the two cases, except the one growing out of the alleged variance between the allegations of the declaration and the record offered in evidence by the plaintiffs in each case and permitted to go to the jury, against the objections of the defendants.

There is no doubt the plaintiff had the right to use the whole record as evidence, unless the objection on the ground of variance can be maintained. Parsons v. Harper, 16 Gratt. 64, 75, 76.

The declaration alleges an arrest by virtue of process described as issued by William Hall Crew, a justice of the peace, while the record shows an arrest under a capias issued by the clerk of the circuit court of Henrico county. The principal of the debt demanded in the suit, in which the process for arrest was issued, is described in the declaration as $409.85, whereas the amount stated in the record is $412.77. These are the only discrepancies pointed out. I do not regard them as material in the case as presented.

The general statement of the rule is, that the allegata and probata must correspond. The chief reason for the require-meat is, that if the defendant should he again sued for the same cause, the record of the verdict and judgment in the former action may he used as evidence to defeat a second recovery.

Can there he any doubt that if the plaintiff in this cause (for convenience I speafc of the two causes as one) were to bring a second action, and his declaration was made to conform precisely to the record which was admitted in evidence, that the verdict and judgment in this suit could be successfully relied on as a bar to the recovery in the second action ? The whole record was used as evidence, and by bill of exceptions made a part of the record of this case, which might be used in the second action to show the grounds of recovery in this.

While the discrepencies are apparent, it is manifest from an inspection of the whole record which was admitted as evidence, and comparing it with the declaration that by the process of arrest and the debt described in the declaration were intended the capias and debt mentioned in the record. The misdescription in the declaration was therefore harmless and immaterial.

It would be easy to show this if this opinion was not already too long, by comparing the various allegations of the declaration with the record, which supports them in all respects except in the two particulars which have been adverted to.

It appears that no special reason was assigned at the trial for the objection to the record as evidence, none was called for by opposing counsel or the court, and the judge certifies that he “understood that the affidavit was objected to on the ground that it did not show that it was procured by Forbes and Allers [the defendants].” If any such objection was made as understood by the circuit court, it has not been renewed here. If the grounds of variance now insisted on here had been disclosed at the trial, as they were not material to the merits of the case, and the defendants could not have been prejudiced thereby, they might have been removed at once by amending the declaration at the bar, on leave given for the purpose by the court, without postponing the trial. Code of 1873, ch. 173, § 7.

Upon the whole matter in both of these cases, I am of opinion that there is no error in any of the rulings of the circuit court for which the judgments should be reversed, and that they should be severally affirmed.

Judgment affirmed.