Rothschild v. Meyer

McAllister, J. The declaration, to which the court below sustained a demurrer, is for maliciously and without probable cause bringing civil suit in case against the plaintiff, in which he was maliciously and without probable cause arrested upon a capias ad respondendum, imprisoned for twenty-four hours and then compelled to give bail in the action. There is no allegation in the declaration that said suit has been terminated, or anything in respect to what disposition had been made of it. We have the right, therefore, to assume that it.may be still pending. It is the general rule that in actions for the malicious prosecution of civil suits the declaration must show that the suit complained of has been brought to an end, the same as in cases of the malicious prosecution of a criminal proceeding; : nd, for the same reason, viz., that the party might recover in his action for malicious prosecution, and yet be guilty and afterward convicted of the original charge. Turner v. Walker, 3 Gill & J. 377; Wood v. Laycock, 3 Metc. (Ky.) 192 ; Hewitt v. Wooten, 7 Jones (N. C.) L. 182. The reason why the alleged malicious suit or proceeding must be at an end before an action based upon it is brought is pointedly stated in Arundell v. Fregona, Yelv. 117: “The plaintiff will clear himself too soon, viz., before the fact is tried, which will be inconvenient; besides, the two determinations might be contrary and inconsistent.” See, also, notes to Stennell v. Hogg, 1 Saund. 228; Parker v. Langley, 10 Mod. 209; Fisher v. Bristow, Doug. 215. But because it is alleged that the arrest, imprisonment and compelling plaintiff to give bail upon the writ of capias ad respondendum were an abuse of that writ, and that the suit in which it was issued was false, malicious and hopeless, it is insisted by appellant’s counsel that it is a case for the malicious abuse of civil process and no averment that such suit was ended is necessary. The acts of arresting, imprisoning and holding to bail under a writ of capias ad respondendum are, and each of them is, an ordinary, legal object and purpose of such writ. The averment, therefore, that they were an abuse of the writ, or that it was an abuse of it to cause any of those things to be done, can not be regarded as sufficient to change the nature of the case and bring it within the class known as abuses of legal process, in which it is immaterial that the suit or proceeding in which they occur is not at an end, and it is not essential to aver that it is. This declaration states no facts to show that the process was abused or perverted, by being employed in making the plaintiff do any collateral thing, or that it was sued out in order to illegally compel the plaintiff to do any collateral thing. In connection with the other facts alleged that was clearly necessary in order to show a case of abuse or perversion of the legal process. 2 Greenlf. on Ev. § 452; Granger v. Hill, 4 Bing. N. C. 212; Wicker v. Hotchkiss, 62 Ill. 110. The distinction between the two classes of cases is admirably stated by Sharswood, J., in Meyer v. Walter, 64 Penn. St. 283. Counsel for appellant further contended that, inasmuch as the declaration avers that the first suit was false and hopeless, and that is admitted by the demurrer, the want of averment that such first suit was at an end is helped out. That particular expression in relation to action for malicious prosecution is used by Chief Justice Parker in the case of Parker v. Langley, 10 Mod. 209. But as we understand the obsorvations of his lordship, he meant that a desertion of the suit or prosecution would indicate that it was false and hopeless. He expressly says, however, that “ no man can say of an action still pending that it is false or malicious.” With some previous acquaintance with the English common law decisions, we are unable, by diligent search, to find any case in which, upon demurrer, it has even been hinted or suggested that any such words would be regarded as an equivalent for the aver, ment that the suit was at an end. There are two good reasons why that is so. One is founded in a wise public policy ; and the other is, that the rule of practice and pleading required an averment, not only that the suit was at an end, but how it was disposed of. Feazle v. Simpson, 1 Scam. 30. It would be intolerable, in this litigious age, if, in every case where a party commenced an action of trespass or case, and sued out a capias ad respondendum against the defendant, that the latter, as soon as arrested, could, without waiting for the trial or other disposition of the case, bring his action at once against the plaintiff for maliciously and without probable cause instituting that suit, and, by averring that such suit was false and hopeless, have a trial of the second suit before or regardless of the termination of the other. To allow that to be done would be against the interests of society and the public peace; because it would multiply law suits; incite malice; waste the time of courts, and bring the administration of justice into further disrepute by inconsistent results in the two cases. We are of opinion that the judgment of the circuit court should be affirmed. Affirmed.