the code, and the application of the purely technical rule of the old system utterly out of harmony with the new system. The one principle or the other prevailing, as the court happened to belong to the old fogy or the progressive class respectively.

If we add to this the consideration that the adoption of the new system made an excuse for the litigious, and even for those not so, to litigate upon points of practice to the courts of last resort; thereby largely increasing the business of these courts without any increased facilities; that the courts were all overcrowded, and it is not wonderful that these early practice reports are not more uniform. These early rulings have very largely been reviewed by the courts themselves, and every year the overruling of inconsiderate rulings, and the revising and qualifying of imperfect, incoherent and inconsistent ones, not properly sustained by principle or legal analogy, have been in progress.

While these processes are producing greater uniformity, and a very beneficial result in perfecting a system, they render the work of the reviser doubly laborious. For the first work of the reviser is to ascertain what construction has been put upon each provision of the code by the court of last resort. Without this knowledge he labors in the dark to a great extent.

But while this work is herculean, it may and must be accomplished by the reviser before he can proceed with his work. The methods by which this work is performed depend much upon the facilities furnished by annotated codes, digests, indexes and the like, which are accessible in the State wherein the revision is to take place.

The meaning of each provision of the code of procedure being ascertained in the particular code to be revised, only one consideration should actuate the reviser, viz.: the remedying of that which is defective. But in carrying out this consideration, these inquiries must arise at every step. Will revisory legislation render the practice under the particular provision more simple and easy and less expensive? Will a change lessen litigation? Have the rulings under the provision left its construction so uncertain as to need reform? Or is the provision itself so obscure, and is there such a want of uniformity in the rulings as to render the same still uncertain or obscure?

Or is the provision too narrow, and have the rulings been so narrow and illiberal as to pervert the beneficial purpose of the provision and call for amendment? Is the provision redundant or unnecessary? Does it fail to accomplish the purpose for which it was designed? Is it necessary to have additional provisions, one or more, in order to give proper scope and effect to the one or ones under consideration? In short, taking into account in the exercise of a wise discretion, the convenience or inconvenience, the good or evil to be accomplished, is it clear that good and not evil will result, should the provision be revised or amended? If any of these questions can be answered in the affirmative, then a case is made out for the action of the revisers.

But if some one of these particular inquiries as well as the last general one, cannot be answered affirmatively; if the good and evil, the convenience and the inconvienence are evenly balanced; if although a provision was originally obscure, it has been made plain by construction; if it was originally narrow, but has had a liberal construction, whereby the purposes of it have been met; if the provision was originally too broad, yet if by construction it has been properly restricted, it should be left untouched: in other words, whatever the original provision was, it is to be considered with its construction, and when thus considered, if it answers the appropriate purpose, it should remain untouched.

With this generalization as to the rule which should govern in exercising or withholding the revisionary discretion, we propose to devote the remainder of this paper to the enumeration of a few representative classes of cases which may be regarded as an illustration of the rules thus generally laid down. A. I.

ble cause. The legal termination of the prosecution is sufficiently shown by the refusal of the grand jury to find a bill, without a formal order of discharge by the court. A rejection of the complaint by the grand jury is prima facie evidence of want of probable cause.

2. THERE IS NO ERROR IN REFUSING to non-suit, if, from the facts proved, the jury might infer that the defendant had no actual belief or suspicion of the plaintiff's guilt.

3. A DEFENDANT IN SUCH AN ACTION can not excuse himself by showing that he acted under the advice of an unprofessional person.

In error to the Middlesex Circuit.

B. A. Vail, for the plaintiff in error; Garret Berry, for the defendant in error.

WOODHULL, J., delivered the opinion of the

court:

Casterline, the plaintiff below, brought his action on the case in the Middlesex Circuit Court, against Potter, the defendant below, complaining that he had falsely and maliciously, and without any reasonable or probable cause, procured him to be arrested for the crime of larceny.

The declaration sets out the issuing of a warrant by a justice of the peace, on the application of the defendant; the arrest and imprisonment of the plaintiff by virtue of it, until he had entered into recognizance for his appearance at the next Court of Oyer and Terminer, etc.; his appearance at the time and place specified in his recognizance; and that "thereupon the said defendant not having any ground or evidence to support the false and malicious charge, etc., the grand jury of the said county returned not a true bill of indictment against the said plaintiff, and the said plaintiff being innocent of the said supposed offense was then and there duly discharged out of the said custody, and fully acquitted and discharged of the said supposed offense;" that the defendant had not further prosecuted his complaint, and that the prosecution was wholly ended and determined.

The defendant having pleaded the general issue, the plaintiff, in support of his allegations as to the termination of the proceedings against him, proved that the papers relating to them, the affidavit, the warrant for arrest, the search warrant, and recognizance were duly forwarded by the justice to the prosecutor of the pleas of the county, and were by him presented to the grand jury, who ignored the complaint. It appeared further that the matter had not been brought before any other grand jury, and, according to the established practice in such cases, could not be so brought without a new complaint.

At the close of the plaintiff's case, the defend. ant's counsel moved for a non-suit, on two grounds. 1. That the plaintiff had failed to show that the proceedings against him were taken without probable cause. 2. That the plaintiff had failed to show that there had been such an ending of those proceedings as the law contemplates. The decision of the court in overruling this motion is the first matter assigned for error.

All the authorities agree that in actions of this sort, the plaintiff, in order to recover, is bound to show (1) that the prosecution or proceeding of

which he complains is legally at an end; and (2) that it was instituted maliciously and without probable cause. 2 Greenl. Ev., §§ 452, 453, and cases cited; Roscoe's Dig. Law of Ev. 770, 771, and cases cited; Clark v. Cleveland, 6 Hill, 344, and cases; Burlingame v. Burlingame, 8 Cow. 141, note 1; Munns v. Dupont 1 Am. Lead. Cas. 249 (*200), 280, (*225). But while the general rule, as to the necessity of showing that a malicious prosecution is at an end, in order to maintain an action for it, has been long settled beyond dispute, its application has given rise to much discussion in the courts, as well as some difference of opinion.

Was the rule properly applied by the court below? It is insisted on the part of the plaintiff in error, that the prosecution could not be terminated in the sense of the rule without a formal order of discharge by the court; and that having failed to show this essential fact, the plaintiff below should have been non-suited at the trial, or the jury instructed to find for the defendant.

It must be admitted that this position is supported by respectable authorities. Mr. Greenleaf says: "If the party has been arrested and bound over on a criminal charge, but the grand jury did not find a bill against him, proof of this fact is not enough without also showing that he has been regularly discharged by order of the court; for the court may have power to detain him for good cause until a further charge is preferred for the same offence. But in other cases the return of ignoramus on a bill by the grand jury has been deemed sufficient." 2. Greenl. Ev., § 452. The doctrine first stated in this citation, and to which the learned author seems to give his sanction, is supported by a reference to Thomas v. De Graffenreid, 2 Nott & McC. 143. In that case, which was an action for a malicious prosecution, the opinion of the court, after expressing doubt as to the correctness of what was said by Buller, J., in Morgan v. Hughes, 2 T. R. 225, goes on to say: "The rejection of a bill by a grand jury has never been held in this State as the legal end of a prosecution, unless the party has been regularly discharged thereupon by order of the court. Another bill may be preferred." This opinion is in harmony with previous decisions in the same court.

It was held in Smith v. Shackleford, 1 Nott & McC. 36, that the entry of a nolle prosequi on the back of the warrant, by the proper prosecuting officer, was not such a termination of the prosecu tion as would, without an order of discharge from the court, enable the party to maintain an action for malicious prosecution; and in O'Driscoll v. McBurney, 2 Nott & McC. 54, that if the proceeding complained of "could be considered as a prosecution, it was necessary to show that it was at an end; and the refusal of the grand jury to act on it would not have been a final termination of it, for the defendant might have applied to another grand jury, who might have thought proper to present the plaintiff."

These decisions seem to me to involve a double fallacy in assuming (1) that what the rule requires to be at an end is not the particular proceeding

complained of, but the plaintiff's liability to be prosecuted for the same offence charged in that proceeding; and (2) that a discharge by order of the court would relieve him from such liability. The question being whether or not, by the entry of a nolle prosequi, the rejection of a complaint by the grand jury, or the return of an ignoramus, a particular prosecution, alleged by the plaintiff to be false and malicious, and injurious to his rights, is at an end in the sense of the rule, the answer of the court in effect is that the prosecution is not at an end in that sense, and cannot be without a discharge by order of the court, for the reason that, without such a discharge, the plaintiff might still be prosecuted. Another complaint might be made; another bill might be preferred for the same offence. But manifestly this may be done just as well after as before a formal discharge by the court. And it is equally clear that the fact that the plaintiff may still be prosecuted for the same offence can have no pertinence to the question as to the termination of the prosecution or proceeding complained of, except upon the wholly untenable theory that an action for a malicious prosecution cannot be maintained so long as the plaintiff remains liable to be prosecuted for the same matter with which he alleges himself to have been falsely and maliciously charged. This has, indeed, been frequently, if not generally, held with respect to the formal action for conspiracy, but, as is clearly pointed out by Parker, C. J., in Jones v. Given, Gilb. Cas. 185, for reasons peculiar to that action, and founded on the form of the writ. In that case, where one of the questions was whether an action on the case for malicious prosecution could be maintained without showing a verdict of acquittal, Parker, C. J., refers to Smith v. Cranshaw, Lutw. 79, as involving the same question, and states that it was there held, upon great consideration, that an acquittal was not necessary, but that an endeavor, falsely and maliciously, to indict a man, etc., though ignoramus be returned upon it, is sufficient, "and this," he adds, "was only a desertion of the prosecution, which was not tried, nor otherwise at an end nor determined." He cites also a number of old cases to the point that, if the bill be returned ignoramus, it is no objection to the action for malicious prosecution, by which I understand him to mean that, by this return, the alleged malicious prosecution is shown to be at an end in such a sense that an action may at once be maintained for it. It is clear that such was understood to be the law by one, at least, of the judges who decided Morgan v. Hughes, already referred to. The question being whether, in an action of this sort, the plaintiff's alleging, in his declaration, that he had been discharged from his imprisonment, amounted to a statement that the prosecution was at an end, Buller, J., said: "There are various ways by which a man may be discharged from his imprisonment without putting an end to the suit. If, indeed, it had been alleged that he was discharged by the grand jury's not finding the bill, that would have shown a legal end to the prosecution." It is true that this was said after stating

his agreement with Ashhurst, J., that the action ought to have been trespass and not case, and that if he had stopped there the result would have been the same. But that he should make such a remark at all, considering the circumstances under which it was made, and in the absence of any indication of dissent or doubt, goes far to show that the point under consideration was not then, and in that court, regarded as open to any doubt.

What is said by Blackstone (4 Com. 305) does not differ materially from the view expressed by Buller, J., in the case just referred to. Speaking of the effect of the grand jury's not finding a bill, he says, "Then the party is discharged without further answer. But a fresh bill may afterwards be presented to a subsequent grand jury.” The meaning of which seems plainly to be that, while another prosecution may be instituted for the same offense, the particular prosecution or complaint, which has resulted in the failure to find a bill, is, ipso facto, completely at an end.

Without pursuing this question further, my conclusion, from what has been said, and from the authorities referred to, is that the rule contended for by the plaintiff in error rests upon no sufficient ground of reason or authority, and savors too much of "acute technicality" to commend itself to the sanction of this court.

The plaintiff below, having shown that the prosecution was terminated by the grand jury's throwing out the bill, had shown all that was required in order to maintain his action, and there was, therefore, no error in refusing to non-suit on the second ground.

The other ground upon which the non-suit was claimed was, that the plaintiff had failed to show that the proceedings against him were taken without probable cause. It was not questioned that the plaintiff was bound to show this by some affirmative evidence. There was no error, however, in refusing to non-suit for want of such evidence, because, in the first place, the plaintiff had shown a rejection of the complaint by the grand jury, which has generally been regarded as prima facie evidence of want of probable cause; and, in the second place, he had given evidence of facts from which it might be inferred that the defendant had no actual belief or suspicion that the plaintiff had committed the crime with which he was charged; and it was the province of the jury, and not of the court, to say whether or not the facts would warrant such an inference. 2 Greenl. Ev., § 454; 1 Am. Lead. Cas. 266, 268.

At the close of the case, the court was requested to charge the jury that if they believed that the defendant gave to the magistrate a fair statement of the facts, and, after such statement, made a complaint by advice of the magistrate, the verdict should be for the defendant.

The court declined to charge as requested, and this is assigned for error. The court was clearly justified in refusing this request for two reasonsFirst. The request assumes that there was evidence in the case tending to show that the defendant made a statement of facts to the magistrate, and then made his complaint by advice of the

magistrate. The case shows that, while such evidence was offered, it was objected to and overruled by the court, without any exception being taken to uch ruling. If there was any error it was in exluding the evidence offered, and not in refusing the request; but, second, even if the evidence had been admitted, there would have still been no error in the refusal to charge, because the legal proposition involved in the request, viz., that a defendant in such an action may excuse himself by showing that he acted under the advice of the committing magistrate, is untenable.

In 1 Am. Lead. Cas. 267 (*215), what I understand to be the true rule upon this point, is thus stated: "If a party lays all the facts of the case fairly before counsel of competency and integrity, before beginning proceedings, and acts bona fide upon the opinion given by the counsel, however erroneous that opinion may be, he is not liable to this action. * * * A defendant can not excuse himself by showing that he consulted with an unprofessional person, and followed his advice." See Id. 267, 268. Two other requests to charge were properly refused by the court for reasons which have been already sufficiently stated.

The judgment of the circuit court must be affirmed.

RAILROAD MORTGAGES.

CALHOUN v. PADUCAH & MEMPHIS R. CO.

United States Circuit Court, Western District of Tennessee, April 7, 1879.

1. RAILROADS-MORTGAGES-ACCRETIONS.-Afteracquired lands not used in connection with the actual operations of a railroad, can not pass under a general mortgage of the railroad itself, as a part thereof, under the doctrine of accretions.

2. AFTER-ACQUIRED LANDS. Where the property conveyed by such a mortgage is described as "the railroad then constructed and to be constructed, etc., and all other corporate property, real and personal, of said railroad company, belonging or appertaining to the said railroad, whether then owned or thereafter to be acquired," lands subsequently acquired and not essential to the operation of the road do not pass by the mortgage by implication. If it be intended to include in the mortgage such lands expected to be acquired, they must be described with reasonable certainty.

The Paducah & Memphis Railroad Company executed a mortgage which has been foreclosed in this cause. It conveyed "all the railroad of said company, as well that part then constructed and completed as the part thereof which should thereafter be constructed and completed; and all and singular the right of way of said company, and the lands, real-estate, rails, tracks, bridges, buildings, depots, station-houses, shops, warehouses, structures, erections, fixtures and appurtenances thereunto belonging or in any wise appertaining, whether then owned and possessed, or thereafter to be acquired by it; and also all the locomotives, engines, ten

ders, cars, carriages, shop-tools and machinery, and all the franchises, rights and privileges and all other corporate property, real and personal, of said railroad company, belonging or appertaining to the said railroad, whether theretofore acquired and then held or owned, or thereafter to be acquired by said railroad company, including all depots, warehouses and structures and all lands acquired or designed for depots, warehouses or structures, at either terminus or along the line of said railroad, whether then held and owned or thereafter to be acquired by the said railroad company; and all continuations, branches, tracks or extensions of said railroad to such depots, warehouses and structures; and also all the right, title and interest which the said Paducah & Memphis Railroad Company then had or might thereafter acquire under and by virtue of any lease to it in and to any other railroad branching from or connecting with the said railroad of the said railroad company hereinbefore described, or in and to any other property, real or personal, used or to be used by the said railroad company in connection with its said railroad, or with any railroad leased by it as aforesaid; and all and singular, the tolls, incomes, earnings and profits of the said railroad of said railroad company and of any railroad leased by it as aforesaid; and also all the estate, rights, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said railroad company, of, in and to the same, and every part and parcel thereof, with the appurtenances to have and to hold," etc.

Subsequently the company acquired by deed from one Kerr forty-four acres of land lying along and adjacent to the roadway. It appears by the deed that this tract, together with two or more acres, before granted as right of way, was conveyed to the company in consideration of its locating a station at that place known as Kerrville. It appears by the proof that the company surveyed the land into town lots and offered the same for sale as such.

The petitioners, Fisher and others, having procured judgments which were by law a lien on said estate, levied their executions on these town lots, and now claim on the ground that they are not included in the mortgage.

Metcalf & Walker, for petitioners; Gannt & Patterson, for defendants.

HAMMOND, J.:

It is insisted by the petitioners that the land in dispute is not within the description of the property conveyed, or if it can be so held then, that the mortgage is inoperative because this land is not more particularly described, and was not then owned or in expectancy. However carefully we analyze the words and sentences used in describing the property conveyed, much may be said on either side, and there is no very clear indication either way, as to the actual intention of the parties in relation to land situated as this is and acquired as this was. It is not unusual for railroad companies to own lands not at all connected with the narrow strip occupied by the road-way and its apurtenances, and not unusual to include such lands in the

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mortgages. Neither can it be denied, that under a properly constructed instrument, lands of that character to be subsequently acquired may be included with the other property conveyed. But all mortgages of the kind, which have fallen under my observation, make some provision for utilizing the outside lands by their sale and the application of the proceeds to the purposes of the trust, generally to the construction or betterment of the road itself. The entire absence of any such provision in this mortgage, more than any other circumstance, inclines me to the belief that as a matter of fact, lands such as these were not in the contemplation of the parties. Besides, as to other property already included, there is no ambiguity whatever, and it is only when we are called upon to say whether this land was conveyed by the instrument, that it becomes perplexing in its uncertainty of description; yet, the expression, "all other, the corporate property, real and personal, of said railroad company, whether heretofore acquired and now held, or owned, or hereafter to be acquired by the said railroad company," and, perhaps, other phrases in the description, are broad enough in terms to cover this land. It is doubtful if the words," belonging or appertaining to the said railroad," as used in connection with this phrase, were intended to limit the general description to lands to be used in the railway, and attendant on it for depots, warehouses, structures, etc., because these had been already abundantly described with the description of the railway itself. The word railroad," as used here, may mean railroad company, as it frequently does. Ordinarily, this general description would be controlled by the subsequent enumeration contained in the words "all depots, warehouses and structures." Pullan v. C. & C. R. Co., 4 Biss. 35, 43; 3 Washb. Real Prop. 400, 431. But when this rule of construction is relied on, it will be generally found that the particulars are introduced with a videlicet, or some such manifestation of the intention to restrain the general description. Bouv. Dict. words "Videlicet,” “Scilicet;” and this ejusdem generis rule of construction always yields to the intention to be gathered from the context and general scope of the whole instrument. Williams v. Williams, 10 Yerg. 76; Edmonds v. Edmonds, 1 Tenn. Ch. 163. Here the particulars are introduced by the word "including," which does not indicate a restrictive intention, but rather the contrary. These particulars having been already more particularly described, may have been inserted out of abundant caution, and not for the purpose of confining the mortgage to the railway and its superstructure. The same uncertainty prevails if we consider the other terms of this description supposed to include this land. But, notwithstanding this general description is broader than in Dinsmore v. R. & M. R. Co., 12 Wis. 649, or that in Seymour v. C. & N. F. R. Co., 25 Barb. 284, the case falls within the principle of these cases, and the case of Shamokin Valley R. Co. v. Livermore, 47 Penn. St. 465, all excluding lands situated like this, under mortgages very similar to the one under consideration. Walsh. v. Barton, 24 Ohio St. 28; Parrish v. Wheeler, 22 N.Y. 494.

A mortgage by a railroad company does not, by implication, cover property not essential to its business. 1 Jones Mort., § 156. In this case, while all other property is described with marvelous detail, this, if intended to be conveyed, is only described by doubtful general terms. It does not seem, from other provisions, and from the whole instrument, to have been within the scope of the contract the parties were making. This point would be sufficient to decide the case, but inasmuch as it may be doubted, I have considered it on the assumption that the intention of the parties was to convey all lands not immediately connected with the railway, and appurtenant to it, then owned and subsequently to be acquired.

Railroad mortgages have, on grounds of public policy, by a sort of eminent domain, somewhat trespassed upon some of the best assured doctrines of the common law; but the courts have not unconditionally surrendered to them all the principles which govern in determining the rights of property as between ordinary individuals. On the doctrine of accretion, it has been held that, without particular mention of the property afterwards acquired, a mortgage by a railroad company will pass under a general description property subsequently acquired which is essential to its use, and may be fairly taken as a part and parcel of the thing which we call a railroad. 1 Jones' Mort. §§ 152, 161. But as to its other property, not regarded as accretions to the road itself, these mortgages are governed by the same rules as in other cases. The broad doctrine stated in Mitchell v. Winslow, 2 Story, 630. has come to be taken as quite an accurate statement of the principle that after-acquired property may be the subject of a sale or mortgage; but, in its application, the courts have established that the general principle not only has exceptions, but in all cases must conform to the rules governing all contracts. It is said that, in relation to the sale of things not yet in existence, or not yet belonging to the vendor, the law considers them as divided into two classes, one of which may be sold, while the other can only be the subject of an agreement to sell-of an executory contract. Things not yet existing which may be sold, are those which are said to have a potential existence -that is, things which are the natural product or expected increase of something already belonging to the owner. But he can only make a valid agreement to sell-not an actual salewhere the subject of the contract is something to be afterwards acquired. Wyatt v. Watkins, 1 Tenn. Leg. Rep. 148, 150; Benjamin on Sales, § 78; 2 Story's Eq. 1040, 1231; 1 Jones Mort., § 149; Everman v. Robb, 52 Miss. 654; Phelps v. Murray, 2 Tenn. Ch. 746; Looker v. Peckwell, 38 N. J. L. 253; Merrill v. Noyes, 56 Me. 458; Phila. W. & B. R. Co. v. Woelpper, 64. Pa. St. 366; Ellett v. Butt, 1 Woods, 214; Ball v. White, 94 U. S. 382.

In the application of this principle to railroad mortgages, it will be found that the courts sometimes refer them to one of these classes, and sometimes to the other, as the property is regarded as personal or real property. 1 Jones Mort., § 154, and cases cited; Pennock v. Coe, 23 How. 117;