forenoon of the 1st day of January, 1855, and that it was not then sold because no person bid. That it was again offered for sale in the afternoon of the same day, and that previous to any bidding, a proclamation was made by one Hatcher, the sonin-law of plaintiff, and the auctioneer who cried the sale, that Mrs. Hart did not, nor would not claim dower therein, and that the property was clear of dower; that this proclamation was made in the hearing of the bidders, and also of the plaintiff, who was across the street, a distance of eighty feet from the place where the property was being cried off, and that she made no objection; that Martin, who purchased the lot in controversy, heard what was said by the auctioneer, and bid, on the strength of it, the full value of the property, and would not have bid otherwise; that plaintiff surrendered the possession soon after the sale, and had lived ever since in the immediate vicinity, without asserting any claim to dower, until thirteen years afterwards, when this suit was brought.

It is, however, insisted by counsel that the evidence does not show that the statements made by the auctioneer at the time of the sale were authorized by plaintiff, and that even if they were she is not bound by them, because made in ignorance of her rights.

On these points the evidence is somewhat conflicting. The auctioneer testifies that he was fully authorized by plaintiff to make the proclamation; that after the failure to sell in the morning, he called upon the plaintiff for the purpose of getting her consent to allow the property to be sold without any claim of dower, and that while from lapse of time he could not remember the exact words used, they gave him full authority to sell it in that way. On the other hand the plaintiff, while she admitted having had at that time a conversation with Hatcher on the subject of the sale of the lot, denies argumentatively that she consented that it should be sold free from her claim of dower, as both the administrator and Hatcher had told her she had no dower in it.

The evidence of Hatcher, the auctioneer, is strongly corroborated by the fact that the plaintiff, whose presence across the street when the auctioneer proclaimed that she would claim no dower was proven by a disinterested witness, remained silent and interposed no objection; and by the further fact that she surrendered the possession after the sale, and acquiesced in it for the period of thirteen years.

But it is said that, if the auctioneer was thus authorized, the plaintiff conferred the authority while she was in ignorance of her rights, and was under the belief that she had no dower. We think this position is not borne out by the plaintiff's own evidence, for while she swears that Hatcher and the administrator had told her she had no dower, and wished her to consent to the sale, she says: "She had an idea that she had some interest, and was very careful." The evidence strongly tends to show that the plaintiff had full knowledge of what had been paid on the property by her husband in his lifetime, what was still to be paid, and of all the circumstances out of which her right of dower

might arise; and that, notwithstanding the adverse opinion of others as to her right of dower, she had an opinion of her own that she had some interest in it.

The facts thus in proof amount to an estoppel in pais, and to allow plaintiff to claim now what she then yielded, would operate as a fraud upon the party acquiring the right at her solicitation. Actual fraud is not necessary to create an estoppel. The principle is designed for the benefit of one who is misled to his prejudice, and the injury to him is the same, whether his informant deluded him through ignorance, mistake or willful misrepresentation. Ordinarily, one who makes a representation to another for the purpose of influencing his conduct, assumes that it is true, and it may be questioned whether he can defend on the ground that he acted without knowledge in making it. Such an one would be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, especially when such denial would operate in the injury of the latter. Tilton v. Nelson, 27 Barb. 595; Welland Canal Company v. Hathaway, 8 Wend. 483; Rice v. Bunce, 49 Mo. 231; Sweany v. Mallory, 63 Mo. 485, 3 Cent. L. J. 461; Evans v. Snyder, 64 Mo. 516; 63 Mo. 48. In Storr v. Baker, 6 Johns. Chy, 166, it is declared to be the rule in equity that ignorance of one's legal right does not take the case out of the rule, when the circumstances would otherwise create an equitable bar, and that he who encourages another to buy of a third person a right to which he has himself a title is to be postponed in equity to such a purchaser.

It is, however, unnecessary to determine in the case before us, what effect, if any, the ignorance of plaintiff as to her right of dower would have, inasmuch, as before indicated, it appeared that plaintiff not only had knowledge of her husband's purchase of the lot in question, but believed she had an interest in it, although she had been otherwise informed, and for that reason, as she herself says, was very careful in what she said in the interview with the auctioneer just before the lot was offered for sale.

We think the judgment was for the right party, and it is hereby affirmed, in which the other judges concur.

sustained damage: 1. To the person, by imprisonment; 2. To the reputation, by the scandal; 3. To the property, by expense.

2. CIVIL SUIT- MALICE DAMAGES.- Where the plaintiff's claim is not only false, but the action is prompted alone by malice and without probable cause, the defendent's right of recovery for the expenses incurred and damages sustained should be as fully recognized as if his property had been attached or his body taken charge of by the sheriff. It must appear that the action was founded in malice, instituted without probable cause, and that the plaintiff has been damaged.

3. WHERE THE REPUTATION HAS NOT BEEN ASSAILED, or the defendant imprisoned, or his property seized, or its use prevented, the damage should be confined to the loss of time and the reasonable expenses incurred in the defense of the action, beyond the ordinary costs, Fees to counsel, expenses of witnesses, etc., and loss of time in the necessary defense of the action enter into the question of damages.

4. THE REMOVAL FROM KENTUCKY TO INDIANA, for the purpose of bringing a suit in the United States District Court for Kentucky, against a resident of Kentucky, is not to be regarded as evidence of a probable cause. Having a cause of action, or probable cause for bringing it, the plaintiff has a right to institute proceedings in any court having jurisdiction.

T. C. Bell, Thompson & Thompson, C. A. & P. Hardin, and Bradley Hardin, for appellants.

1. A suit for malicious prosecution of a civil action can be maintained without an averment that the plaintiff had been arrested, or his property in some way interfered with. Cox v. Taylor's heirs, 10 B. Mon. 20.

2. Where there is a good cause of action, but the plaintiff sues in a court which has no jurisdiction or cognizance of the cause, an action for malicious prosecution will lie. Espinasse's Nisi Prius, title Malicious Prosecution, p. 30; Marbury v. Smith, 11 Kan.; Clossen v. Staples, 42 Vt. 209; Whipple v. Fuller, 11 Conn.; Tomlinson v. Warner, 9 Ohio, 106.

An action for malicious prosecution lies as well where there is not as where there is an arrest. The grounds of the action are the malice of the defendant, want of probable cause, and injury to the plaintiff's person, by imprisonment, to his reputation, by scandal, or to his property by expense. Swift's Digest, Vol. I, p. 491.

Kyle & Poston, and Van Winkle & Rodes, for appellee.

1. The practice of dismissing suits when plaintiff's pleadings fail to show a cause of action, at any stage of the proceedings, is supported by author ity. Coffin v. Reynolds, 37 N. Y. 640; Budd v. Bugham, 18 Barb. 494; Smith v. Milikin, 2 Minn. 319; Holmes v. Campbell, 12 Minn. 221; Civil Code, secs. 134, 756.

2. In every case of malicious prosecution decided by this court, the use of the extraordinary remedy of arresting the defendant was made the gravamen of the action. Cox v. Taylor's heirs, 10 B. Mon. 17.

3. Whether the prosecution of an ordinary civil action by summons only would or not afford the groundwork of an action for a malicious prosecution, is an open question in this state, and the com

mon law authorities ought to determine the settlement of it here.

4. "It is well settled that at common law no action will lie against one for bringing a civil suit, however malicious and unfounded, unless the body of the party is arrested and imprisoned, or holden to bail; in all other cases the costs the party recovers are supposed to be an adequate compensation for the damages he sustained." Swift's Digest, Vol. 1, p. 492; see, also, Espinasse's Nisi Prius, 525; 1 Bac. Abr. 96; 2 Chitty's Pl. 601, notes h and k; Savil v. Roberts, 1 Salk, 13, 14; 3 Blackstone, 126; 1 Leo, 275; 1 B. & P. 205; 3 B. & C. 139; 3 Wilson, 305; Cottrell v. Jones, 7 Eng. L. & E. 481; 1 Ld. Raym. 374.

5. The common law, in the absence of statutory changes, is the law of this court. Gen. Stat. 610; Hard. 62; 2 J. J. Mar. 149.

6. In Connecticut, under the statute, it was held that a suit at law prosecuted maliciously and with out probable cause, would support a suit for malicious prosecution. Whipple v. Fuller, 11 Conn; see, also, Closson v. Staples, 42 Vt. 209, and a Kansas case in 1 Am. Rep. 323.

7. But, on the other hand, we have ample American authority sustaining the English rule. See Ray v. Law, Pet. C. Ct. 207; Potts v. Imlay, 4 N. J. Law (1 South), 330; Woodmansie v. Logan, 1 N. J. Law (1 Penn.), 93; Parker v. Frambs, Ib. 156; Code v. Yocum, 8 La. An. 477.

8. If a want of jurisdiction is relied on, it is necessary to aver that the defendant knew the want of jurisdiction. 2 Saunders on Pl., side-page, 652; 2 Wilson, 302.

9. A defect of jurisdiction in the court in which the suit is conducted is of itself sufficient to bar an action for malicious prosecution. Bixby v. Bainbridge, 2 Gray, 129.

PRYOR, J., delivered the opinion of the court: These several actions were originally instituted in the County of Mercer, and by change of venue were heard in the Boyle Circuit Court. They involve the same questions, and will be considered together. It is alleged, in substance, in each case, that the plaintiff and the defendant were both citizens of the county of Mercer, and the defendant, with the view and for the purpose of annoying the plaintiff, and to subject him to unnecessary trouble, left the county of his residence (Mercer), and falsely pretended to change his residence from the state of Kentucky to the state of Indiana; that he actually went to the state of Indiana, not for the purpose of residing there in good faith, but to enable him to institute an action in the Circuit Court of the United States within and for the district of Kentucky, held at the city of Louisville, for an assault alleged to have been committed by the plaintiff on the defendant; that claiming his residence in Indiana, for no other purpose than to sue the plaintiff, the defendant, on the 1st of May, in the year 1869, wickedly and maliciously, and without probable cause, and intending only to harass and vex the plaintiff, under color of legal process, did sue and cause to be instituted and filed in the Circuit Court of the United States within and for the district of Kentucky, held

at Louisville, a declaration in his, the defendant's, name against the plaintiff and others, in which he alleged and stated that the plaintiff, on the -day of, in the year 1868, with force and arms, entered his, the defendant's, house at midnight, and made an assault upon him, the defendant, beat him with sticks, etc., to his great damage, viz., the sum of $10,000. That the statements, each and all of them, in said declaration contained were false, and so known to the defendant at and before the bringing of the action; that the plaintiff was in no manner connected with said assault, if any such had been committed; and the defendant, knowing this fact, maliciously and falsely, and without probable cause, made the false statements in said declaration contained, viz., that the plaintiff assaulted, beat aud bruised the defendant; and claimed of plaintiff $10,000 in damages, when he knew, as plaintiff avers, that the plaintiff had not committed any of the wrongs complained of, or had any connection therewith; that the plaintiff, in obedience to the process in said action, appeared in person and by counsel, and made defense, and at the October term of said court for that year a trial was had and a judgment, on defendant's own testimony, rendered for the plaintiff, and said action for the alleged assault, etc., was then and there finally ended and determined, by a verdict and judgment in favor of this plaintiff.

By reason of the malicious institution of said action, and its malicious prosecution without any cause, the plaintiff alleges that he expended large sums of money, other than the costs of the action allowed by law, in paying the expenses of himself and witnesses to and from Mercer County to Louisville and while attending the trial, amounting to $; also paid $- attorneys' fees to defend said action, and loss of time, etc., amounting in all the damages to $1,500, etc.

A demurrer was sustained to the several petitions by the court below, and the plaintiffs (the appellants) have each appealed to this court.

The action instituted in the United States Circuit Court being a civil action, the sole question in these cases is, can an action for malicious prosecution, or rather an action on the case, be maintained for the institution and prosecution, without probable cause, of a malicious and vexatious suit. The elementary books, in treating of the action for malicious prosecution, lay down the rule that there are three descriptions of damages, either of which is sufficient to support that action, and some one of them must appear or the action will fail: 1. To the person, by imprisonment; 2. To the reputation, by scandal; 3. To the property, by expense. Cooley's Blackstone and notes, 126: Selwyn's Nisi Prius. This rule was evidently established after the enactment of the statute of Marlbridge, giving to the defendant his costs in the event the plaintiff was nonsuited or failed to recover; for, at common law, prior to that enactment, such actions could be maintained whether the property of the defendant was seized or not, or whether he had incurred expense in defending it: and regarding then as now the bringing of a civil action

2

to be a matter of right, the plaintiff was liable in damages for the malicious institution and prosecution of such an action without probable cause.

After the statute giving costs to the defendant, it was held by the common law courts that no action could be maintained on account of the instition and prosecution of a civil action without probable cause, and therefore no action could lie for a vexatious ejectment. In all such cases the plaintiff must have gone beyoud the proper remedy for the enforcement of his claim, such as procuring an illegal order of arrest, or requiring excessive bail, before the action could be maintained.

This entire doctrine is based on the idea that the plaintiff bringing the action is sufficiently punished, and the defendant fully recompensed by the statute requiring the plaintiff to pay all the costs. We perceive no good reason for following this rule, and deny to the defendant a remedy when his damages exceed the ordinary costs of the action. The fact that a plaintiff has been subjected to the payment of costs per falso clamore, is no recompense to the defendant when the latter has, by reason of the malicious proceeding on the part of the plaintiff, sustained damage. In cases where the plaintiff has mistaken his action, or been nonsuited, or where, by reason of some imaginary claim, he has seen proper to sue the defendant, it is not pretended that any action for damages can be maintained; but where the claim is not only false, but the action is prompted alone by malice and without any probable cause, the defendant's right of recovery, for the expenses incurred and damages sustained, should be as fully recognized as if his property had been attached or his body taken charge of by the sheriff.

While the damages may be less in the one case than the other, the legal right exists and some remedy should be afforded. If the facts alleged in these petitions are true, and they must be so treated on demurrer, it would be a singular system of jurisprudence that would admit the wrong and still withhold the remedy.

If the defendant in these cases, at the time he left Kentucky and claimed his residence in Indiana, had a cause of action against the plaintiffs, or any probable grounds for believing that a cause of action existed, he had the right to select the forum in which to prosecute it, and in such a case his removal from one jurisdiction to another, if for the avowed purpose of bringing the action, is not to be regarded as evidence of a want of probale cause. Having a cause of action or a probable cause for bringing it, he had the right to institute proceedings in any court having jurisdiction. It must appear that the action was founded in malice, instituted without probable cause, and that the plaintiff has been damaged. When the reputation has not been assailed, or the defendant imprisoned, or his property seized, or its use prevented, the damages should be confined to the loss of time, and the reasonable expenses incurred in the defense of the action beyond the ordinary costs. In these cases it is alleged that the plaintiffs, by reason of the prosecution of the action against them, were compelled to pay large sums of money as fees to coun

sel, expenses of witnesses, etc. These items of expenses and the loss of time in the necessary defense of the action, all enter into the question of damages, and from the facts admitted by the demurrer, resulted alone from the malice of the defendant in the prosecution of an action when he knew he had no claim against them.

In the case of Closson v. Staples, 42 Vt., it was held, "that when a civil suit was commenced and prosecuted maliciously, and without probable cause, and is terminated in favor of the defendant, the latter may recover the damages sustained by him, and it is not material whether the suit was commenced by process of attachment or by summons only."

In Watson v. Freeman, cited in Esp. Dig. 527, "If a man sue me in a civil suit, yet if his suit be utterly without ground, and that certainly known to himself, I may have an action against him for the damages he putteth me to by his ill practice." In the case of Whipple v. Fuller, 11 Conn. an action was instituted under a statute to prevent vexatious suits, to which was added a count at common law for the malicious prosecution of the vexatious civil action. The court in that case, by Church, justice, in discussing the effect of the statute and the right of recovery by the plaintiff, said: "But we wish to place our decision of this question upon broader principles," etc., and quoting from Bayley, justice, in the case of Elza v. Smith, 2 Chit. Report, 304. "If a party falsely and maliciously and without probable cause put the law in motion, that is properly the subject of an action on the case," and resuming, said: "We think therefore, upon the fundamental principles and analogies of the common law, that the second count in the declaration is good."

Hilliard on Torts (Vol. 1, p. 443), says: "But the qualified custom is now well settled in relation to civil actions (corresponding with the rule as to civil prosecutions) that no action lies to recover damages sustained by being sued in a civil action, unless it was malicious and without probable cause." The application of this rule is restricted by the case cited in support of it, by confining the right to maintain the action to civil actions where the party is maliciously held to bail, or where he has been mulcted for a larger sum than is claimed in the action; or where his property has been wrongfully attached; when in fact the party may have sustained greater loss by the prosecution maliciously of a vexatious suit, than the mere temporary seizure of his property. It is said, however, in the text, that the action lies for suing the defendant maliciously, and arresting him when the court had no jurisdiction, or for suing in a proper court, but proceeding there vexatiously.

Following the doctrine of the common law, that for every injury there is a remedy, we see no reason for denying a remedy to the plaintiffs in each of these cases; and where a party seeks a judicial tribunal for the purpose alone of gratifying his malice he should be made to recompense the party injured for the damages actually sustained, and the courts should see that a remedy is afforded for that purpose.

The judgments of the court below are therefore reversed, and the causes remanded with directions to overrule the demurrers, and for further proceedings not inconsistent with this opinion.

THE UNITED STATES POSTAL LAWS AS TO OBSCENE LITERATURE CONSTRUED.

UNITED STATES v. WHITTIER.

United States Circuit Court, Eastern District of Missouri, March Term, 1878.

Before the HON. JOHN F. DILLON, Circuit Judge, and HON. SAMUEL TREAT, District Judge.

1. THE ACT OF CONGRESS OF JULY 12, 1876, 19 Stats. at Large, 90, in respect of mailing obscene books, etc., construed, and held not to extend to, the case of a sealed letter written by the defendant to a person who had no existence, in answer to a decoy letter of a detective, and which on its face gives no information of the prohibited character.

2. THE CASES IN WHICH it is allowable to make use of decoy letters discussed.

This is an indictment founded on an act of Congress, approved July 12th, 1865, which provides that: Every obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character, and every article or thing designed or intended for the prevention of conception or procuring of abortion, and every article or thing intended or adapted for any indecent or immoral use, and every written or printed card, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where or how, or of whom, or by what means, any of the hereinbefore mentioned matters, articles or things may be obtained or made, and every letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene, or lascivious delineations, epithets, terms or language may be written or printed, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post office, nor by any letter-carrier; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any thing declared by this section to be non-mailable matter, and any person who shall knowingly take the same, or cause the same to be taken from the mails, for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of the same, shall be deemed guilty of a misdemeanor, and shall, for each and every offense, be fined not less than one hundred dollars nor more than five thousand dollars, or imprisoned at hard labor not less than one year nor more than ten years, or both, at the discretion of the court." 19 Stats. at Large, 90.

The indictment charges, in substance, that there was delivered to the defendant, in the city of St. Louis, on &c. (naming the time) a certain written letter, contained in an envelope, in the words following, namely:

DR. WHITTIER:

"Butler, Ga. Nov. 14th, 1877.

Can you furnish me an absolutely sure way to prevent conception? What will it cost? How can I get it? What is the price of your "Marriage Guide?"

Address,

MISS NETTIE G. HARLAN,
Butler, Georgia."

Which letter, on the envelope, was addressed thus:

"Dr. Whittier,

St. Louis, Mo.

No. 617 St. Charles St." The question before the court arises on a motion by the defendant to quash the indictment, and, for the purpose of determining the law of the case, the parties have agreed that the facts in respect to the allegations in the indictment are as hereinafter stated, and that these facts are to be considered by the court in the motion to quash the indictment, as if they were alleged in it, namely: That the letter described in the indictment, as having been written by Miss Nettie G. Harlan, at Butler, Georgia, was in fact written by Robert W. McAfee, who then was, and still is, the agent of a society known as The Society for the Suppression of Vice, and that, in the acts done by him, as herein set out, he was acting as such agent; that there is no such person as Nettie G. Harlan; that by and with the consent of the United States postal officers, the said letter was enclosed in a sealed envelope, addressed as in the indictment described, having a three-cent postage stamp upon the face thereof, and said envelope, upon its face, was post-marked, "Butler, Georgia, November 14th;" that said letter was not mailed as postmarked, at Butler, Georgia, but was post-marked at St. Louis, Missouri, with a marking stamp furnished said McAfee by the Secret Service of the United States Post Office Department, and that said post-mark was affixed by the said McAfee with the said marking-stamp so furnished, in the presence, and with the consent, of the said officers; that thereupon said letter in said envelope so sealed, post-marked, addressed and stamped, was, by said McAfee, delivered to the officers of the St. Louis post office, and by them placed in the mail, and, in due course of mail, was delivered by James Haran, a letter-carrier of the postal service of the United States, from the post office in St. Louis, at the office of the defendant, in the city of St. Louis, No. 617 St. Charles street, and that the same was there received by a person having charge of said office; that said letter was written and sent in the manner aforesaid for the purpose of procuring information whether the defendant was engaged in the business of sending through the mail nonmailable matter, and information, also, as to where, how and by whom, or by what means, matters, articles and things declared by the acts of Congress as non-mailable, were being obtained.

the

It is further stipulated, for the purpose of the motion to quash the indictment, that the letter charged in the indictment as having been written

in reply to the said letter of Miss Nettie G. Harlan, by the defendant, was by the defendant deposited, or caused to be deposited in the St. Louis post office, and the same was never sent to Butler, Georgia, nor delivered to Miss Nettie G. Harlan, but the said letter was taken out of the said St. Louis post office by the postal officers, or said McAfee, for the purpose, singly and solely, of procuring information aforesaid, and detecting the defendant, if guilty, of carrying on the business of knowingly depositing, or causing to be deposited, non-mailable matter in the United States mail. The allegation in the indictment is that the defendant answered the letter which he received, purporting to be from Miss Nettie G. Harlan, and deposited his answer, contained in an envelope, in the post office at St. Louis, and that the letter thus written, and deposited by the defendant in the post office, is in the words following, namely: "Miss Nettie G. Harlan, Butler, Ga.

I have what you desire. It is perfectly safe, sure and healthful, and can be easily used. The price is 10 dollars, sent by express only on receipt of price. Price of "Marriage Guide" is 50 cents. Respectfully,

C. WHITTIER, M. D."

The indictment then proceeds to aver that said letter was knowingly deposited by the said defendant in the post office at St. Louis, and then and there gave information in the manner and form aforesaid, that a certain article or thing designed and intended for the prevention of conception-a more particular description of which said article said jurors are unable to give-might be obtained from him, the said Clarke Whittier, contrary to the form of the statute in such case made and provided.

On the indictment, as thus framed, in connection with the foregoing facts, which it is stipulated shall, for the purpose of this motion, be considered as a part of the indictment with the same effect as if they had been alleged therein, a motion is made to quash; and the question which counsel desire to have decided is, whether, if these facts appear as they are alleged and agreed to exist, the prosecution can be sustained, under this statute, for the offense charged in the indictment.

Mr. Bliss (District Attorney) and Mr. Ellis, for the United States; Mr. Dyer and Mr. Wagner, for the defendant.

DILLON, Circuit Judge:

The question submitted has given the court some difficulty. Certain propositions and principles will aid in its correct decision.

1. Statutes creating crimes will not be extended by judicial interpretation to cases not plainly and unmistakably within their terms. If this rule is lost sight of, the courts may hold an act to be a crime when the legislature never so intended. If there is a fair doubt whether the act charged in the indictment is embraced in the criminal prohibition, that doubt is to be resolved in favor of the accused. U. S. v. Morris, 14 Pet. 694; U. S. v. Wiltberger, 5 Wheat. 76; U. S. v. Sheldon, 2 Wheat. 119; U. S. v. Clayton, 2 Dillon, 219.

2. Congress has, it is conceded, no power to