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otherwise, there never could be a valid compromise upon a point of law; since, in every case, one or other must be wrong.

Upon the whole, I am of opinion to affirm the general principles of the chancellor's decree except as to the charities, and to remand the cause to be proceeded in according to these principles, with some slight modifications as to the details.

The decree entered by this court reversed the chancellor's decree as to the charities, and dismissed the attorney-general's bill; and, approving the general principles of the decree, in respect to the other suit brought by the individual legatees, and correcting some of its details, affirmed it in all other respects.

In Davis v. Newman, 2 Rob. 664, it was decided that where an executor had voluntarily paid to legatees more than their fair proportion, owing to a mistake on his part as to the amount of the assets, he could not recover back from them any part of what he had so paid them. Allen, J., delivering the opinion of the court in that case, said that it was well established by authority in England that, where the executor has made a voluntary payment, he can not compel the legatee to refund. He stated that in that case the executor was seeking to recover back from the legatees solely for his own benefit, and said: "To sustain his claim to such a recovery would be against the whole series of authorities in England, commencing at an early period, and without the support of a single authority or dictum in our own courts." Although he cited the principal case in another part of his opinion, it seems to us that he must have overlooked or misunderstood what is said by Tucker, J., in his opinion upon that subject.

In Carter v. Balfour's Adm'r, 19 Ala. 814, bequests “to the Baptist societies for foreign and domestic missions," and "to the American and foreign bible societies," were upheld. And Coleman, J., in delivering the opinion of the court in that case, said: "I think these descriptions sufficiently specific, and if societies can be found which were organized and known by those names at the time of the testator's death, they should be considered the societies referred to by the will, and capable of taking the bequests, whether incorporated or not." And he held that the court, by virtue of its common law powers, and without the aid of the statute of 43 Elizabeth, had power to enforce the trust. He cited the principal case as one of those which were based upon the decision of the supreme court of the United States in Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. 1, which latter decision he considered as partially, if not altogether, overruled by subsequent cases in the same court. The principal case is also cited in Hill's Ex'rs v. Bowman, 7 Leigh, 657, to the point that a devise to “any other person or persons who may be in distress," is too vague and uncertain, and that the declaration of trust as to such persons is altogether inoperative and void; in Kelly v. Love's Adm'rs, 20 Gratt. 130, that a devise for the establishment of a free school is void at common law; and in l'irginia v. Levy, 23 Id. 40, that a devise to a charity is void if vague or uncertain as to the beneficiaries; in Seaburn's Ex'rs v. Seaburn, 15 Id. 425, and in Roy's Ex'r v. Rourzie, 25 Id. 608, to the point that the English doctrine as to indefinite charities does not prevail in Virginia. In delivering the opinion of the court in Seaburn's Ex'rs v. Seaburn, 15 Id. 426, Moncure, J., referring to the principal case, said: "The authority

of that case, although some of the positions therein held have been impugned elsewhere, is still firm and stable in this state, except so far as it may have been since modified by statute." See, to same effect, Brooke v. Shacklett, 13 Id. 309.

CHARITABLE DEVISES AND BEQUESTS.-See, for a full discussion of this subject, note to Dashiell v. Attorney-general, 9 Am. Dec. 577; also note to McGirr v. Aaron, 21 Id. 363, where the other cases in this series are collected; also, Bartlet v. King, 7 Id. 99, where it was decided that a bequest to promote the propagation of Christianity among the heathen was not void as against public policy, nor because there was no court in Massachusetts to compel the execution of the trust.

EQUITY JURISDICTION OVER CHARITIES.-In Griffin v. Graham, 9 Am. Dec. 619, it was decided that under the statute of 43 Eliz., which was held to be in force in North Carolina, and under the statutes of that state, courts of equity had the same jurisdiction over charities as the English court of chancery. In Dashiell v. Attorney-general, 9 Id. 572, it was held that the statute of 43 Eliz. was not adopted in Maryland. See, also, note to the last case, 577.

SPECIFIC LEGACIES, WHAT ARE.-See note to Walton v. Walton, 11 Am. Dec. 468, for a full discussion of this subject.

MOWRY V. MILLER.

[3 LEIGH, 561.]

ACTION ON THE CASE FOR PROCURING A MALICIOUS PROSECUTION may be maintained by the person prosecuted, against him who procured such prosecution to be instituted.

DECLARATION IN SUCH ACTION MUST ALLEGE that the prosecution was without probable cause; but such allegation has reference to the state of fact as it relates to the person prosecuted, and not to the knowledge of that fact possessed by the party prosecuting.

VARIANCE AS TO DATE, WHEN NOT MATERIAL. Where, in an action for procuring a malicious prosecution, the day on which the plaintiff was acquitted is stated in the declaration under a scilicet, a variance between the day so laid and the day stated in the record by which the acquittal is proved, is not material; it is sufficient for the declaration to allege that the acquittal took place before the suit was brought.

CASE brought by Miller against Mowry in the circuit court of Shenandoah. The declaration alleged that the defendant induced one Zirkel "falsely and maliciously, and without any probable or reasonable cause whatsoever, to charge the said Miller with having feloniously stolen one thousand four hundred dollars in bank notes;" that he prevailed on and compelled the said Zirkel, by his false, scandalous, and malicious representations, " and without any reasonable or probable cause whatsoever," to procure one Moore, a justice of the peace, to issue a warrant for his apprehension; that the defendant after

wards directed, advised, and procured the said Zirkel, under and by virtue of said warrant, "wrongfully and unjustly, and without any reasonable or probable cause whatsoever," to cause the said plaintiff to be brought before said Moore, and to be committed by him "for examination, without any probable cause;" that on the seventh day of October, 1825, he was brought before the court for trial, and upon the hearing of the case was fully acquitted and discharged. Mowry demurred generally to the declaration, and pleaded not guilty. The court, on the demurrer, held the declaration good. And on the trial of the general issue there was a verdict for the plaintiff for five hundred dollars damages, upon which a judgment

was entered.

On the trial Miller offered in evidence the record of the county court, from which it appeared that he was acquitted on the seventh day of November, 1825, instead of on the seventh day of October, as stated in the declaration; whereupon Mowry's counsel objected to the variance, but the court overruled the objectien and allowed the record to be read in evidence. To which ruling Mowry's counsel filed exceptions. Mowry applied to this court for a supersedeas to the judgment, which was allowed.

Stanard, for the plaintiff in error, contended that to advise another to institute a prosecution maliciously and without probable cause was not actionable; that if to do so were actionable, the declaration must allege, not only that the prosecution was malicious and without probable cause, but that the advice to institute it was given without probable cause: Ellis v. Thelman, 3 Call, 3; Young v. Gregorie, Id. 446 [2 Am. Dec. 557]; Kirtley v. Deck, 2 Munf. 10 [5 Am. Dec. 245]; Marshall v. Bussard, Gilm. 9. The court erred in admitting the record of acquittal in evidence; the variance between the record exhibited and that alleged in the declaration was fatal: Pope v. Foster, 4 T R. 590.

cause.

Leigh, contra, contended that it was sufficient for the declaration to allege that the prosecution itself was without probable The declaration did not purport to recite the record, nor to allege the acquittal with a prout patet per recordum. The substantial part of the allegation was, that Miller was finally acquitted before this suit was brought.

TUCKER, P. The first objection in this case goes to the cause of action. It is said, that in every case for malicious prosecution, the defendant is charged with active agency, and that an

action for merely advising another to institute a prosecution, is not sustainable. For my part, I can conceive nothing more direct than the charge here. It is, substantially, a charge that the defendant maliciously, and without probable cause, consulted with, advised, and procured one Zirkel, falsely and maliciously, and without probable cause, to prosecute the plaintiff for felony. This procurement is surely actionable. The language of the declaration corresponds with the form of declaring in an action on the case in the nature of an action for a conspiracy; and it was admitted in the argument that the facts set forth would be sufficient, if proved, in an action against two or more, to sustain such an action. If so, a charge of such advice and procurement by one, can not less entitle the plaintiff to this action.

It is next objected, that from their connection in the declaration, the words without probable cause apply only to the act of Zirkel, not to the advice and procurement of the defendant. The charges of malice, and want of probable cause, are reiterated, and stand in connection with both. Yet, in truth, according to my view of the matter, the objection could not avail, if true. The law requires the plaintiff in this action to set forth that the prosecution was without probable cause. But, as this is merely because no man can maintain an action for a malicious prosecution, where there was probable cause, it is obvious that those words should be made to refer to the state of fact, as it respects the person prosecuted, and not to the degree of knowledge of that fact in the party prosecuting.

Then, as to the supposed variance. If the declaration had purported to recite the record of the prosecution, the variance might perhaps have been fatal. But that is not the case here. It merely alleges the fact that the plaintiff was acquitted on a particular day; it does not profess to recite the record. Now, the material and substantive part of the allegation was, that the acquittal was before action brought. The date was immaterial. The case of Pope v. Foster, which was cited as in point, has been overruled by the case of Purcell v. Macnamara, 9 East, 157. In this latter case, the action was for a malicious prosecution; the plaintiff alleged in his declaration an acquittal on a particular day, but without a prout patet per recordum; the record, when produced, proved a different day; but it was held, the precise day was not material, the substance of the allegation being that the acquittal was before action brought. This

case has been since approved in Philips v. Shaw, 4 Barn. & Ald. 435; 5 Id. 964; 6 Com. Law Rep. 477; 7 Id. 318.

We are therefore, of opinion to affirm the judgment.

Cited in Arthur v. Crenshaw's Adm'r, 4 Leigh, 398, to the point that a variance in date of acquittal was not material; and in Taylor's Adm'r v. Bank of Alexandria, 5 Id. 476, to the point that a variance in dates stated under a videlicet is not material. Criticised by Daniel, J., delivering the opinion of the court in Spengler v. Davy, 15 Gratt. 388, on the point, that allegations in respect to probable cause should be made to refer to the state of fact as it respects the person prosecuted, and not to the degree of knowledge of that fact in the party prosecuting. See, also, Scott v. Shelor, 28 Id. 906.

CASE IS THE PROPER REMEDY FOR MALICIOUS PROSECUTION.-Turner v. Walker, 22 Am. Dec. 329, note 336; Plummer v. Dennett, 20 Id. 316; Shaver v. White, 8 Id. 730.

WANT OF PROBABLE CAUSE MUST BE ALLEGED.-Turner v. Walker, 22 Am. Dec. 329, note 337; Bell v. Graham, 9 Id. 687; Young v. Gregorie, 2 Id. 556, note 559.

PROBABLE CAUSE, WHAT IS.—Plummer v. Gheen, 14 Am. Dec. 572, note 574; note to Frowman v. Smith, 12 Id. 267; Ulmer v. Leland, 10 Id. 48; Nash v. Orr, 5 Id. 547.

MOORE V. HOLCOMBE.

[3 LEIGH, 597.]

DOCTRINE OF EQUITABLE LIEN FOR PURCHASE MONEY OF LAND should not be extended beyond its proper limits, and ought not to be applied where it is evident that the parties never intended to apply it. Per Carr, J.

LIEN OF VENDOR IS IMPLIED FROM THE SUPPOSED INTENTIONS of the parties, and so long as it is confined to the parties and to those claiming under them, with notice, it is not liable to objection; but if a vendor conveys the land to the vendee in such a manner as to make him appear to be the complete owner with full power to sell, he will not be permitted to use his secret lien to the injury of those who, in ignorance of it, for a valuable consideration, have acquired either the legal title or an equitable incumbrance. Per Cabell, J.

Equitable Lien, When Lost.—Where an equitable lien for the purchase money exists on lands which the grantee conveys to another, who is ignorant of the existence of the lien, and who gives to his grantor bonds for the purchase money, which the latter assigns to third persons who take them without notice, and for a valuable consideration, such lien is lost, and the unpaid purchase money in the hands of the obligor belongs to the assignees, and not to the original vendor.

ASSIGNEES ARE NECESSARY PARTIES TO A BILL brought by such original vendor to subject such lands to sale under the equitable lien claimed by him.

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