Maher et Ux. v. Ashmead et al

• Decision Date: 01 January 1858
• Parties: Maher et ux. versus Ashmead et al.
• Court: Pennsylvania Supreme Court

30 Pa. 344

Maher et ux. versus Ashmead et al.

Supreme Court of Pennsylvania.

CERTIFICATE from the Court of Nisi Prius.

Guillou, for the defendant.—The authorities are clear, that where the warrant shows that no criminal offence was committed, and the process was therefore irregular on its face, trespass, and not case, is the remedy. The essential ground of the action for malicious prosecution is, that a legal prosecution was carried on without probable cause: Johnstone v. Sutton, 1 T. R. 544; Codrington v. Lloyd, 8 A. & E. 449; Parsons v. Lloyd, 3 Wils. 341; 1 Chit. Pl. 185-6; 4 Johns. 450; 9 Johns. 118; 3 Caines 270; 11 Johns. 444; 12 Johns. 257; Allison v. Rheam, 3 S. & R. 141-2; Berry v. Hamill, 12 S. & R. 212-13; Leigh v. Webb, 3 Esp. 165; McNeely v. Driskell, 2 Blackf. 259; Frierson v. Hewitt, 2 Hill, S. C. 499.

If all the counts are bad, and all present the same fatal error, then judgment should not have been entered for the plaintiffs below: Catherwood v. Kohn, 7 Barr 392; Wilson v. Gray, 8 Watts 37; McKee v. Bartley, 9 Barr 189; Griffith v. Eshelman, 4 Watts 56; Kline v. Wood, 9 S. & R. 297; Paul v. Harden, 9 S. & R. 24. This is a defect not cured by verdict: Frankstown Township Road, 2 Casey 473; Thompson v. Barkley, 3 Casey 265; Haldeman v. Martin, 10 Barr 369; 6 S. & R. 385; 4 W. & S. 53.

H. M. Phillips, for the plaintiffs, cited Haldeman v. Martin, 10 Barr 369; Hudson v. Nicholson, 5 M. & W. 340.

The opinion of the court was delivered by PORTER, J.

This action ought to have been trespass. The warrant was not a nullity only, but an absurdity. It charged the defendant "with absconding, or about to abscond, from the city," with moneys belonging to a certain estate "with intent to defraud heirs" — an improper act, but not obnoxious to the criminal law. The alderman could do nothing but discharge the party arrested. In appealing to the court for redress she mistook her remedy. Case was not the proper form of action. The arrest was not an abuse of lawful process. It was an act committed under a void and irregular writ. Every step was unlawful. The seizure of the person was an act of direct violence. The injury was no more consequential, than if caused by a blow from a bludgeon. On turning to the record, we find the summons issued in case. In the declaration, the defendants are required to answer to a plea of trespass on the case. From every count the usual words, force and arms, are omitted. In several counts, the defendants are charged with having falsely and maliciously caused and procured the plaintiff to be arrested by her body, and to be imprisoned and kept, &c. words which do not necessarily imply the exertion of force on the part of the defendants. In one count, a conspiracy is charged, but so connected with the procurement and service of the vicious warrant, as to form but an entire act. These allegations do not set forth a trespass. In its very birth, therefore,...