7 Cow. 281 | N.Y. Sup. Ct. | 1827
Without inquring whether the fact, that the plaintiff below died before verdict, is regularly before us, on the bill of exceptions, I am satisfied it cannot be alleged" for error. This question is disposed of by the act, (1 R. L. 144, sec. 5.) “ The death of either party between verdict and judgment in any action, shall not be alleged for error.” At the common law, it was otherwise; the remedy is not confined to cases where the cause of action survives, but is general. It therefore applies to the present case. I am not aware of any authority that has given a construction to the statute restricting the operation of its general terms. (1 T. R. 31, 2, note(a.)) •
Where an interlocutory judgment only, has been obtained, there the statute remedy is different. In such cases the action does not abate, if it might originally be prosecuted by the executor or administrator of the plaintiff.
There is no doubt that, to sustain an action for a malicious prosecution, it is incumbent on the plaintiff to prove the want of probable cause. It is equally clear, however that it is immaterial whether the fact be established by proof derived from witnesses, or admitted by the pleadings; it is the same thing. The only issue joined in this cause was upon the plea .of justification; and consequently no evidence was admissible, which did not tend to establish the truth or falsity of that plea. Every traversable allegation in the declaration, not denied by the plea, was admitted on record and required no proof. (Phil. Ev. ch. 7, sec. 8, 126, 141; 1 Starkie, 295, 888.) Apply these rules to the case under consideration. The charge, stript of legal form, is this: that the defendant had, without probable cause, prosecuted the plaintiff for a felony. Here are two allegations. If there was probable cause, or if the defendant could prove the plaintiff guilty, his justification would be complete. Both allegations are material. Had the defendant pleaded the general issue, the plaintiff was bound to show want of probable cause. If the defendant omitted that plea, and preferred taking on himself to prove probable cause, he might do so by pleading the facts. He might have taken that course if he had so elected. The plea would be good; because, had he shown probable cause, there would be an end of the action. It was not necessary, however, to plead in that manner; because the defendant might avail himself of that defense under the general issue; with this advantage; that if the plaintiff failed to make out the want of probable cause in the first instance, the defendant would not be required to offer any proof. The defendant has waived any answer to the allegation of want of probable cause, and put his defense solely on the ground that the plaintiff was guilty of the felony. According to the established rules of pleading, every traversable fact, in the declaration, not answered by the plea, was admitted.
Judgment affirmed.