The opinion of the court was delivered by

The declaration is defective in substance. It was

meant to be a declaration in case for a malicious prosecution, but it contains no averment that there was any prosecution, and does not allege facts which amount to a prosecution. The plaintiff alleges that the defendant charged him with an offence punishable by law, but does not aver that the charge was made before any court, justice or prosecuting authority. The declaration alleges that the defendant procured the plaintiff to be arrested and imprisoned upon this charge, not upon a warrant or other precept of any court. The charge if before any officer may have been before some military officer, as a provost marshall, and the arrest may have been made by a sergeant, with a file of soldiers, and without any process of law *192whatever. A charge and an arrest do not amount to a prosecution. This action lies only when a legal prosecution, a judicial proceeding, has been miliciously, and without probable cause, instituted against the plaintiff, and has been terminated in the plaintiff’s favor. 1 Am. Lead. Cases. 211 et passim, and cases cited. That such a proceeding has been instituted does not appear from this declaration, even argumentatively, much less affirmatively and sufficiently. The averment of discharge and acquittal, after ten days’ imprisonment, is entirely consistent with an arrest without warrant, an imprisonment without process, and an examination before some other than a judicial tribunal. No mention being made in any part of the declaration of any process, precept, trial, court, justice, or officer of the law, and no profert being made of the record of any judicial tribunal, we are' without means Yrom which even to infer that the plaintiff claims to have been prosecuted in a court of law. As the institution of such a prosecution, “without probable cause,” is the essential ground of the action, the declaration is fundamentally defective. The declaration cannot be upheld by treating it as setting up an arbitrary arrest or imprisonment without process, for beside other reasons, trespass, and not case, is the remedy for such a tort.

This declaration is from a precedent in Chitty’s Pleadings, but the precedent is given only as a second count, and the author hung a lantern over the pit by suggesting that its sufficiency was questionable ; 2 Chit. Pl. (Ed. of 1840) p. [611,] and note d. It is urged that if this count was thought in Mr. Chitty’s day to be only possibly insufficient, it ought by this time to be good. It is true that of late those rules of pleading which are merely artificial have been less favored than formerly, but this tendency has been, or should have been, not towards loose pleading, but towards that conciseness, simplicity and accuracy of pleading which consists in the clear and certain allegation of all that is material, and the omission to allege any thing else.

The judgment that the declaration is insufficient is affirmed.

On motion the judgment was reversed, pro forma, and the case remanded, that the plaintiff might amend by filing new counts, on terms that he pay the costs pending the demurrer.