1861. CASTRIQUE V. BEHRENS. be blowed off by a side wind: and so in other actions; as if a man be convicted of perjury, an action upon the case lies not, though the prosecution were malicious. It has been a great doubt in this Court whether an action of trover lies after such a condemnation, and adjudged at last that it does not. But if a particular person had come in, and claimed property, and lost them, yet the true proprietor might have an action of trover, because he was no party to the former suit; but here upon a condemnation after proclamation, it is otherwise." In Whitworth v. Hall (a) it was held that, in an action for maliciously suing out a commission of bankruptcy against the plaintiff, it must be averred and proved that the commission was superseded before the commencement of the action and that, if this fact be not proved, the plaintiff ought to be nonsuited, though the fact be not averred in the declaration, and though the defendant, who might have demurred for the omission, has not done so; Lord Tenterden C. J., in giving judgment, saying: "If a commission of bankrupt be sued out without any reasonable or probable cause, we must assume that the Lord Chancellor would supersede it.” In Steward v. Gromett (b) the Court affirmed the general rule that the plaintiff must shew a termination in his favour of the proceedings the institution of which is his ground of complaint; but considered the particular instance an exception. In Farley v. Danks (c), which was an action for falsely and maliciously procuring the plaintiff to be adjudged a bankrupt, the adjudication was annulled before action brought. Revis v. Smith (d) in no way supports the plaintiff's contention. Col (a) 2 B. & Ad. 695. (b) 7 C. B. N. S. 191. lins v. Cave (a) shews that it is not actionable to have fraudulently induced a third person to bring a wrongful action against the plaintiff; at all events, if it appears that that action terminated unfavourably to him. So, Cotterell v. Jones (b) decides that no action lies for a conspiracy falsely and maliciously and without any reasonable or probable cause to commence and prosecute an action, in the name of a third person, against the plaintiff, without an allegation shewing that legal damage has been sustained thereby. Haddan v. Lott (c) is a further authority that special damage, the immediate result of the wrong complained of, must be averred in a declaration for falsely, maliciously and without reasonable and probable cause, procuring a third person to do the plaintiff an injury. The instances given in Com. Dig. Action upon the Case for Conspiracy (A); Action upon the Case for a Deceit (A 4.); Fitzherbert De Nat. Brev. tit. Writ of Conspiracy, 116 E; shew that a plaintiff who complains that he has been injured by a conspiracy to set the law in motion against him must shew either that the proceedings of which he complains were set aside before writ brought, or that they terminated in his favour. In the last case bearing on the subject, Barber v. Lesiter (d), Erle C. J. says: "The declaration is partly for conspiracy and partly for overt acts, amongst which there might possibly be some which might indirectly have led to the charge against the plaintiff. If the declaration did amount to a charge that the defendant did some act which directly caused the plaintiff to be prosecuted for illicit distillation, (a) 4 H. & N. 225. (b) 11 C. B. 713. 1861. CASTRIQUE V. BEHRENS. 1861. V. BEHRENS. it would fall within the rule applicable to malicious proCASTRIQUE Secutions, as charging that the defendant and Savage used the excise officer as an instrument in their hands for the prosecution they planned; and then, the plaintiff having been convicted, he could not maintain the action." Holl, in reply. A judgment in rem is conclusive as an estoppel only on the point adjudicated upon. In the present case, therefore, the judgment of the French Court is conclusive only as to the status of the ship, but is no bar to this action. In 2 Taylor on Evidence, § 1490, the author says: "Though a judgment in rem is" "binding upon all the world as to the precise point directly decided, and consequently the decision cannot be impeached in the same or another Court, by shewing that the facts on which it immediately rests are false;— yet, when these facts are themselves put directly in issue in a subsequent suit, the judgment does not" "furnish conclusive evidence of their truth, however necessary it may have been for the Court proceeding in rem, to have determined that question before it adjudicated upon the principal point." Dalgleish v. Hodgson (a) and Fisher v. Ogle (b) shew that the ground upon which a foreign judgment in rem proceeded may be contested in an English Court of law, if that ground does not appear clearly on the face of the judgment. The authorities already cited shew, further, that a judgment in rem may be impeached, if it be obtained by fraud. In Cotterell v. Jones (c) and Haddan v. Lott (d) the actions failed, (a) 7 Bing. 495. (b) 1 Campb. 418. because it was not sufficiently alleged that the plaintiffs had sustained legal damage; and Collins v. Cave (a) was decided mainly on the ground that the damage sustained was too remote a consequence of the defendant's wrongful act. Cur, adv. vult. CROMPTON J. now delivered the judgment of the Court. In this case the demurrer to the declaration raises a question of some difficulty. There is no doubt, on principle and on the authorities, that an action lies for maliciously and without reasonable and probable cause setting the law of this country in motion to the damage of the plaintiff, though not for a mere conspiracy to do so without actual legal damage; Cotterell v. Jones (b), Barber v. Lesiter (c). But in such an action it is essential to shew that the proceeding alleged to be instituted maliciously and without probable cause has terminated in favour of the plaintiff, if, from its nature, it be capable of such a termination. The reason seems to be that if, in the proceeding complained of, the decision was against the plaintiff and was still unreversed, it would not be consistent with the principle on which law is administered for another Court, not being a Court of appeal, to hold that the decision was come to without reasonable and probable cause. In the present case the proceedings were not instituted in the Courts of this country, but they are stated to be proceedings in rem in the Courts of France. There is no direct authority on the point; but it seems to us that the same principle (b) 11 C. B. 713. (a) 4 H. & N. 225. (c) 7 C. B. N. S. 175. 1861. CASTRIQUE V. BEHRENS. 1861. CASTRIQUE V. BEHRENS. which makes it objectionable to entertain a suit grounded on the assumption that the unreversed decision of a Court in this country was come to without reasonable and probable cause, applies where the judgment, though in a foreign country, is one of a Court of competent jurisdiction, and come to under such circumstances as to be binding in this country. A judgment in rem is, as a general rule, conclusive everywhere, and on every one; and we do not think that the averments in the declaration shew that this judgment in rem was obtained under such circumstances as to be impeachable by the present plaintiff. It is averred, and we must on the demurrer assume that it is truly averred, that by the law of France the judgment in rem can only be obtained if the holder of the bill of exchange be a French subject, and bonâ fide holds for value; and we must take it as admitted on this demurrer that Troteaux, the French holder of the bill of exchange, by the fraudulent procurement of the defendants falsely represented to the French Court that he was holder for value, when he was not. It is not necessary to say what would be the effect if it were stated that, by the contrivance of the defendants, the proceedings were such that the plaintiff had no opportunity to appear in the French Court and dispute the allegations. In the present case it is quite consistent with the averments in the declaration that the plaintiff had notice of the proceedings in France and purposely allowed judgment to go by default, or even that he appeared in the French Court, intervened, and was heard, and that the very question whether Troteaux was a holder for value was there decided against him. We think, on the principle laid down in |