BOGL BOGLE &c. against CONWA Y's Ex'ors. OGLE and others furviving partners of Robert Gilchrift & Co. brought indebitatus as sumpsit for goods sold and delivered, againft Conway's executor, in the District Court. The defendant plead the act of limitations, and the plaintiff replied generally. Upon the trial of the caufe the plaintiffs filed a bill of exceptions to the Courts opinion; which stated, that the plaintiffs, in order to rebut the plea of the act of limitaons, offered, in evidence, a record of the County Court of King George, in an action on the cafe, for goods fold and delivered, brought by the plaintiffs against theteftator of the defendants, in March 1774 (setting it forth in hæc verba ;) and a certificate of the Clerk of the County Court in thefe words, "I do hereby certify that the above record " contains all the proceedings which appear to "have taken place in our Office in the fuit Robert "Gilchrift & Co. vs. Francis Conway, on a parti If in affum. fit, the defendant plead the tions, and the plaintiff would avoid the plea by a former uit act of limita having been brought in time, he muft reply the forally, and canmer uit ipecinot give it in evidence under a general replication to the plea. "cular examination of the minutes; all the pa. dle indoried British suits on the Docket, which "I fuppofe to contain thofe fuits which were af"terwards fufpended:" that the defendants object. ed to the testimony; and that the Court would not permit it to be given in evidence to the Jury. Verdict and judgment for the defendants; and the plaintiffs appealed to this Court. RANDOLPH for the appellants. It is clear there. was a former fuit, the trial of which was delayed: and the plaintiffs' ought to have been permitted to prove it. BROOKE contra. If evidence, as to this fact, ought to have been received at all, the teftimony offered was improper: For a copy of the record, and not the certificate of the Clerk, ought to have been produced. But no evidence, as to that fact, ought to have been received. For the plea was that the defendant did not affume within five years; to which the plaintiffs replied generally; and thus the parties were at iffue, upon the fingle point, whether the defendants affumed within five years, or not? So that the teftimony had no relation to the iffue, but was entirely collateral to it; and therefore the Court very properly rejected it. If the plaintiffs wifhed to have availed themselves of the evidence, they fhould have replied the matter fpecially, in order that the defendants might have joined iffue with them on the point relative to a former fuit, and have come prepared to difprove it. Whereas the plan purfued, of producing the evidence at the trial of the other iffue, was calculated to furprize the defendants. These principles are confirmed by Brown vs. Putney 1. Wash. 303 and Wilcox vs. Huggins 2. Stra. 907. RANDOLPH in reply, If teftimony on the point was admiflible at all, then the evidence feed was fufficient; for even parol evidence Bogle & Scott might have been received to fhew that there was Conways ex'is no perfon capable of bringing the fuit: But the facts were better authenticated by the document produced than they would have been by parol evidence, as it fhewed a depending fuit, and what fteps had been taken in it, by the certificate of the officer who had the care of the papers. There was no neceffity for a special replication, as the plaintiffs were at liberty to have offered any evidence, which went to fhew that the fuit was brought in time. LYONS Judge-Delivered the refolution of the Court that there was no error in the opinion of the Court below; and therefore that the judgment was to be affirmed. Judgment affirmed. ELLIS against THILMAN. TH In an action is not fuffici that the detendant did it without any the declaratijust caufe, but HILMAN brought Case against Ellis for a malicious profecution; and declared as fol- for malicious lows, "John Thilman jun. complains of William profecution, it "Ellis in cuftody &c. for that the faid William ent to alledge "contriving and malicioufly intending unjustly to grieve, opprefs, weary and impoverish him the "faid John Thilman, and put him to great expeace without any just cause, of his mere ma“lice did lodge an information before a Court of enquiry for the faid County, (that the faid John that it was "Thilman had felonioully taken a negro, the pro- done without "perty of him the said John Ellis,) and thereby any probable "caufed the faid John Thilman june to be arrested, caufe "examined before a juftice of the peace touching "the faid felony, and afterwards to be commit"ted for examination before a Court of enquiry on must state 1 "for the faid county, and the faid information WICKHAM for the appellant. It was not enough for the plaintiff to alledge that there was no just caufe, but it fhould have been stated that there was no probable caufe. For, al hough there was no just caule, if the defendant had probable caufe, it was fufficient to excufe him. To fav that it was malicioully done is not enough; for, if there was probable caufe, it juftified the defendant. Accordingly the conftant practice is to aver that there was no probable caule. 6. Mod. 25. 73. 4. Burr: 1974. 1. Term Rep. 5442. Term Rep. 226. WARDEN contra. The allegation that there was no just caule neceffarily excludes the idea of any circum.tance of justification. For if there was a probable caufe, it could not be affirmed that there was no just caufe. Jut cause ex vi termini means proper caufe; and, if there was a probable caufe, there was proper caufe; that is, a juft caufe. Confequently when the Verdict finds that there was no juft cause, and that it was malicioufly done, it, in fubftance, finds that there was no probable caufe. Stra. 691. 4 Term Rep. 248. 10 Mod. 214. Gilb. Rep. K. B. 185. Cur: adv: vult. LYONS Judge-Delivered the refolution of the Court, that the plaintiff ought to have alledged the want of probable caufe, and that the omiffion was not cured by the verdict. Confe. quently that the judgment of the District Court was erroneous, and ought to be reversed. Judgment reverfed. Ellis as. Thilman LYNE againfi GILLIAT. ILLIAT brought indebitatus assumpsit against Lyne in the District Court, and de. clared 1. for money laid out and expended; 2. upon an Insimul computasset. Plea non assumpsit, and iffue. Upon the trial of the cause the defendant filed a bill of exceptions, which flated "that "the Court refufed to permit the defendant to "enter into a re-examination of the accounts on "which the fettlement was founded, and confined "him to the pointing out errors on the face of the "fettlement, especially as the defendant was in "poffeflion of the first fettlement, with all the ac"counts between the parties, fome months before "the fecond fettlement was made, and the objections, the defendant propofed to make, were to "the items of the accounts on which the first fet"tlement was made.-That the defendant alfo "offered to prove, by parol teftimony, that he "ought to have had a credit, for part of the goods "charged in the account on which the firft fettle The defen dant, in an acfettled account cannot go into an enquiry concerning the justice of the tion upon a ieveral items of demand stated in the account. |