Maher v. Ashmead

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. [346] 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, the action contracted a malady liable to developement in any stage of its life. A demurrer, or application for a nonsuit, would have ended it. On the motion made by the defendants to arrest the judgment, it should have been arrested, for the defect was not formal, but vital; not curable, but fatal. It presents itself also on this record, for the terms in which the warrant is set out show it to have been wholly irregular and void, and capable, therefore, of sustaining no other remedy. Where the defect appears on the face of the declaration, it is settled law, that a court of error is bound to notice it. Having thus laid the axe at the root, it is unnecessary to enter upon the minute branches of the case. Judgment reversed.