Herbener v. Crossan

• Decision Date: 19 February 1902
• Citation: 20 Del. 38,55 A. 223
• Court: Delaware Superior Court
• Parties: JOHN EDWARD HERBENER v. JAMES CROSSAN

55 A. 223

20 Del. 38

JOHN EDWARD HERBENER v. JAMES CROSSAN

Superior Court of Delaware, New Castle County

February 19, 1902

Superior Court, New Castle County, November Term, 1901.

ACTION ON THE CASE (No. 7, May Term, 1901) for malicious prosecution.

The defendant filed two pleas to the plaintiff's declaration the second of which was a special plea, setting forth, in substance, that before the committing of the said supposed trespass, the defendant's house had been broken into and entered by some person unknown to the defendant and that a sum of money and divers goods and chattels had been stolen from said premises; that the said defendant thereupon immediately notified one Albert T. Williamson, the Justice of the Peace mentioned in the said several counts of the plaintiff's declaration and one William C. Pierson constable mentioned in said declaration; that a person unknown to the defendant appeared at the defendant's place of residence a short time before the date that his house was broken into, said unknown person having come there driving the plaintiff's horse and wagon; that on the date the said defendant's house was broken into and entered a person, to the defendant unknown, driving the same horse and wagon, called at defendant's place of residence pretending to want to purchase defendant's real estate, and entered defendant's house, without invitation, and while therein looked about and examined the entire structure of defendant's house, as though acquainting himself therewith, and asked defendant's wife if she was there alone and when informed by defendant's wife that she would call the men who were about the premises, the said person protested and forthwith left defendant's house; that defendant informed said Williamson and said Pierson of the foregoing facts and circumstances, whereupon the said Williamson instituted an investigation and reported to the defendant that upon inquiry he had ascertained that the plaintiff answered the general description of the person who had called and inquired if defendant's property was for sale, as aforesaid, and that he, the said plaintiff, had an agent assisting him in his supposed business who had been in defendant's neighborhood, disguising himself in a suspicious manner; that the said plaintiff and his agent aforesaid, the night after defendant's house had been broken into, spent money with unusual freedom and exhibited to other persons large sums of money; that when the said Albert T. Williamson called at plaintiff's house to inquire about said plaintiff, occupants of the house manifested alarm and expressed fear of the arrest of said plaintiff and informed said Williamson that said plaintiff's agent had immediately left the State after a letter had been received by said plaintiff concerning said breaking into said defendant's house and stealing and carrying away of his said money, goods and chattels, wherefore the said defendant having good and probable cause of suspicion and vehemently suspecting the said plaintiff to have been guilty, or concerned in the breaking into and entering of defendant's house, stealing and carrying away said goods and chattels of the said defendant, and to have feloniously taken and carried away the same, did in good faith and without malice sign the said warrant in the several counts in the said declaration mentioned and make affidavit thereto, and then and there requested the said constable and peace officer to take the said plaintiff into his custody and safely keep him until he could be carried and conveyed, and to carry and convey him before the Justice of the Peace in said declaration mentioned, to be examined by and before said Justice touching and concerning the premises, and to be further dealt with according to law; and on that occasion the said constable in said declaration mentioned, did then and there arrest the said plaintiff and take him in custody as soon as conveniently could be, to wit, at the time in said declaration mentioned; the said plaintiff was examined by the said Justice of the Peace, and the said plaintiff's premises were searched by the said constable, and the said plaintiff was afterwards discharged out of the custody by the said Justice of the Peace, and by means of the said several premises aforesaid the said plaintiff was kept and detained in prison for the said several spaces of time in the said several counts in the said declaration mentioned, the same being a reasonable time for that purpose and lawful and just for the causes aforesaid, which are the supposed trespasses in the several counts of the said declaration mentioned, whereof the said plaintiff hath above complained against the said defendant, and this the said defendant is ready to verify, whereof he prays judgment if the said plaintiff ought to have or or maintain his aforesaid action thereof against him, etc.

Plaintiff filed the following demurrer to the above plea:

"And as to the said plea of the said defendant by him secondly above pleaded the said plaintiff saith, that he, by reason of anything by the said defendant in said plea above alleged, ought not to be barred from having and maintaining his aforesaid action against the said defendant in respect to the grievances in the several counts of the plaintiff's declaration set out, because he saith that he, the said defendant, at the said time when, etc., in the said several counts mentioned, of his own malice and without any reasonable and probable cause whatever and without the cause by the said defendant in his said second plea mentioned, did commit the said grievances in the manner and form as the said plaintiff hath above thereof complained against the said defendant. And this the said plaintiff prays may be inquired of by the country, etc."

(On December 21, 1901, the demurrer was argued).

Mr. Handy:--Counsel advising must be a licensed attorney.

Murphy vs. Larson, 77 Ill. 172 (175); Williams vs. Van Meter, 8 Mo., 339.

Whether there is a probable cause for a prosecution is a question of law only when all the facts which are relevant are either agreed on are undisputed.

Sartwell vs. Parker, 141 Mass. 405; Donnelly vs. Daggett, 145 Mass. 314.

The law presumes that members of the bar have more knowledge of law than laymen, and an honest reliance on their advice will justify a prosecution.

Stanton vs. Hart, 27 Mich. 539 (541).

The advice of a person who is not an attorney but who sometimes advises his neighbors for pay, is not admissible as advice of counsel.

Bivingston vs. Burroughs, 33 Mich. 511.

So the advice of a person who is a Justice of the Peace, but not an attorney, is no protection.

Sutton vs. McConnell, 46 Wis. 269 (280).

In an action for malicious prosecution, proof that the defendant acted under the advice of a magistrate, or other person not learned in the law, is not admissible for the purpose of showing the absence of malice.

Strauss vs. Young, 36 Md. 247 (256).

In an action to recover damages for a malicious prosecution, the defendant cannot be permitted to prove that he acted under the advice of a Justice of the Peace in instituting the prosecution.

Brobst vs. Ruff, 100 Pa. St., 91 (94); Buyett vs. Buyett, 43 Md. 78; Rigdon vs. Jordan, 81 Ga. 668.

In an action for malicious prosecution evidence that the defendant in commencing the prosecution complained of, acted upon the advice of a person not a counsellor, or attorney at law, is incompetent to disprove malice.

Olmstead vs. Partridge, 82 Mass. 381.

I rely in my demurrer on this point: That the defendant has in his plea based his defense on the advice of a Justice of the Peace. Counsel now says that is not his purpose, but he only states that as one of the circumstances. I still hold to the proposition for this reason: that he cannot show that advice, under the decisions, even as one of the circumstances.

Strauss vs. Young, 36 Md. 247 (256); Brobst vs. Ruff, 100 Pa. St., 94.

Whiteman, for defendant, replied.

Verdict for defendant.

L. Irving Handy for plaintiff.

J. Harvey Whiteman for defendant.

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting on demurrer; CHIEF JUSTICE and JUDGES PENNEWILL and BOYCE sitting at trial.

OPINION

LORE, C. J.

You have so interwoven the...