Lohrfink v. Still

Bartol, I., delivered the opinion of this court. This is an action for a malicious prosecution. The declaration was defective, in not averring that the alleged malicious prosecution was “without probable cause.” That such aver [535] jncnt was essential is not now, and has never been, doubted. It constitutes the gist of the action. 2 Chitty's Pl., 608, 609, note (x.) 2 Saund. Pl. & Ev., 652, 654, 659. 7 Cowen, 717. After the jury had been sworn, and all the evidence offered to them, the plaintiff asked leave to amend the declaration, by inserting the words, “without any reasonable or probable cause whatsoever,'''’ and “that the declaration might be taken to read as if said averment were made, ’ ’ and the court granted leave to amend at bar as prayed. The defendant objected to the amendment being made, without first withdrawing a juror, which objection the court overruled. The defendant also objected to the making of said amendment in the manner proposed, which objection the court overruled, and the defendant excepted. The court directed the trial to proceed before the same jury without their being re-sworn, to which also the defendant excepted. The first question presented by these exceptions is, whether the leave to amend the declaration operated as an amendment? It is clear that a permission to amend does not, per se, amount to an amendment. A party may have leave to amend, and yet not choose to avail himself of it. The amendment must actually? be made, either by altering the declaration in the cause, or by filing a new one. In this case no amendment was, in point of fact, made in conformity with the leave granted by the court. The declaration remained unchanged; and as it now appears in the record, it contains no averment of “want of probable cause,” without which it is insufficient. We think the court erred in treating the leave to amend as an actual amendment, and for that reason the judgment ought to be reversed. The exceptions in the case present another question, involving the construction of the act of 1852, ch. 177, which is by-no means free from difficulty; and as its decision is not material to the determination of the present case, this court forbears to express any opinion thereon, the more especially, because the same was not fully argued, and the cause was not heard by a full court. [536] The motion in arrest of judgment presents the same questions Us were raised, by the exceptions taken at the trial. But inasmuch'as the reversal of the judgment upon the exception already considered disposes of the present appeal, it is unnecessary to express any opinion upon that motion, and in order that the amendment of the declaration which was allowed by the court below may be properly made, and the case be tried upon its merits, this court will reverse the judgment and award a procedendo. Judgment reversed and procedendo awarded,