Mayer v. Walter

• Decision Date: 28 February 1870
• Citation: 64 Pa. 283
• Parties: Mayer <I>versus</I> Walter.
• Court: Pennsylvania Supreme Court

64 Pa. 283

Mayer versus Walter.

Supreme Court of Pennsylvania.

February 17, 1870.

February 28, 1870.

February 17th 1870.

Before READ, AGNEW, SHARSWOOD and WILLIAMS, JJ. THOMPSON, C. J., at Nisi Prius

Error to the District Court of Philadelphia: No. 203, to January Term 1870.

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B. Woodward and G. W. Biddle, for plaintiff in error.— An action will lie for abuse of civil powers: Sommer v. Wilt, 4 S. & R. 19; Foster v. Sweeney, 14 Id. 386; Prough v. Entriken, 1 Jones 85; Barnett v. Reed, 1 P. F. Smith 190; Stone v. Swift, 4 Pick. 389; Wills v. Noyes, 12 Id. 324; Savage v. Brewer, 16 Id. 453; Paughborn v. Bull, 1 Wend. 345; Burt v. Place, 4 Id. 591; Ewing v. Landford, 19 Ala. 605; Weaver v. Page, 6 Cal. 681; Page v. Cushing, 38 Maine 523; Temple v. Killingworth, 12 Mod. 4; Van Duzor v. Linderman, 10 John. 106; Brown v. Chapman, 1 W. Black. 427. The reversal of the alderman's judgment was a decision in Mayer's favor: it need not be a decision on the merits.

W. L. Budd, for defendant in error.—The plaintiff must prove a suit with malice and without probable cause, and its final termination: Wilkinson v. Howell, 1 Moody & M. 495.

The judgment of a justice, though founded upon a mistake in law, is an estoppel of the denial of want of probable cause: Herman v. Brookerhoff, 8 Watts 240. The compromise of a suit is conclusive evidence of probable cause: Clark v. Everett, 2 Grant 216; Munson v. Austin, 2 Phila. R. 116; Wengert v. Beashore, 1 Penna. R. 233; Kramer v. Stock, 10 Watts 118; McCullough v. Grishobber, 4 W. & S. 201.

The Court of Common Pleas might refuse a writ of restitution: McGee v. Fessler, 1 Barr 131. An action of this kind will not lie without arrest or seizure of property: Ray v. Law, 1 Pet. C. C. 210; Kramer v. Stock, 10 Watts 118.

The opinion of the court was delivered, February 28th 1870, by SHARSWOOD, J.

There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. Thus, if a man is arrested, or his goods seized in order to extort money from him, even though it be to pay a just claim other than that in suit, or to compel him to give up possession of a deed or other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause: Grainer v. Hill, 4 Bing. N. C. 212. It is evident that when such a wrong has been perpetrated, it is entirely immaterial whether the proceeding itself was baseless or otherwise. We know that the law is good, but only if a man use it lawfully.

On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also, that the proceeding must be determined finally before any action lies for the injury; because, as it is said in Arundell v. Tregono, Yelv. 117, the plaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient; besides, the two determinations might be contrary and inconsistent.

The case before us evidently was that of a malicious use of legal process. All the analogies of an action for a malicious arrest or seizure of goods under an execution fairly belong to it: Beach v. Wheeler, 12 Harris 212, S. C. 6 Casey 69; Sommer v. Wilt, 4 S. & R. 23. It is necessary that the proceeding should have come to an end, and that end must have been a successful one to the plaintiff; otherwise it shows actual, which is more than probable, cause; but it seems to have been considered by the learned court below that it must also appear that the determination in favor of the plaintiff has been on the merits, and on that ground they entered judgment for the defendant on the point reserved.

The soundness of a principle is often best tested by its practical working. If, in the application of it, it is manifest that an admitted wrong may be left without any remedy, we may be confident that there is a fallacy somewhere in the reasoning from which it is deduced. We will take the case of a malicious arrest, without reasonable or probable cause, in a civil action. The plaintiff, when ruled to declare, refuses, and the only mode by which the defendant can bring the action to an end is by a judgment for want of a declaration. Here there is no decision in his favor on the merits. If the principle asserted be sound, the defendant in that case, though he has suffered an acknowledged wrong, is deprived of all remedy without any fault on his part. The authorities are not so. In Pierce v. Street, 3 B. & Ad. 397, it was decided that in an action for a malicious arrest in a civil suit, proof that no declaration was filed or delivered within a year after the return of the writ is sufficient to show a determination of that suit. So in Brook v. Carpenter, 3 Bing. 297, it was held that an action may be brought to recover damages for lodging a detainer against the plaintiff, maliciously and without probable cause, when the suit is terminated by a rule of court.

In Jones v. Given, Gilbert's Cases 185, Chief Justice Parker, in a most elaborate opinion, shows that although in a writ of conspiracy for a false appeal or indictment of treason or felony, it was necessary to prove that the plaintiff had been lawfully acquitted, it was otherwise in an action on the case. The reason was that a writ of conspiracy was a formed action, one of the brevia formata in the register, in which it was alleged that the plaintiff secundum legem et consuetudinem regni nostri acquietatus fuisset: F. N. B. 276, and such forms must be strictly pursued quæ quidem nullatenus mutari poterint; while in an action on the case a latitude is allowed, variantur secundum varietatem casuum, and nothing is made necessary but what the reason of the thing makes so. See 1 Inst. 73 b. In the course of that opinion he lays down this rule, which seems fully to meet and answer the true justice and reason of the case: "That the determination must be such as does not admit a reasonable cause for the prosecution; as if a pardon be pleaded which admits in some sort guilt, however is quitting the vindication of innocence, or justification, which admits the fact, and consequently reasonable cause of complaint." So it has been held in this court that when the proceeding has been ended by a compromise, it debars the defendant from any action for damages: Clark v. Everett, 2 Grant 416. And, as a general rule, it may be laid down that such an action cannot be supported when in the original action the defendant was obliged to set up some collateral matter by way of defence, which did not appear on the declaration or the face of the instrument declared on: Wengert v. Beashore, 1 Penna. R. 232; though it should be noted that that was said in an action against executors.

It is more than probable, however, that the learned court below did not mean to affirm the abstract proposition stated in the reserved point in so broad a form. They meant to confine it to the case of a reversal of a judgment of an alderman on certiorari or appeal; and their precise position seems to have...