McNamee v. Minke

Alvey, J., delivered the opinion of the Court. This is an action on the case for a malicious prosecution of an ejectment suit against the appellant by the appellee. To the declaration as amended the appellee pleaded five pleas. 1st, That he did not commit the wrongs alleged ; 2nd and 3rd, That he did not commit the wrongs alleged within three years, and that the cause of action did not accrue within three years, before action brought; 4th, Nvl tiel record of the ejectment suit alleged in the declaration ; and 5th, That the action of ejectment was not ended as alleged in the declaration. To the second plea there was a demurrer, and that plea was ruled bad ; but upon all the other pleas issues of fact were joined. At the trial below the appellant offered in evidence a certain procedendo record, transmitted from this Court, of the ejectment suit of the appellee against the appellant, the case standing No. 12 on the trial docket of the Circuit Court for AlleganjT County at the October Term thereof, 1811 ; together with all the papers and proceedings in that cause, down to and inclusive of the verdict therein ; and also a copy of the docket entries of the proceedings in the cause. To the admissibility of this evidence thus offered the appellee objected, and the Court sustained the objection, and the appellant excepted. It appears that the original action of ejectment, commenced by the service of a copy of the declaration and notice, was brought by the appellee against the appellant in 1864, to which the latter appeared, and disclaimed all — 130 — title in himself to the premises sued for, hut defended as to two-sixths and two-fifths of one-sixth parts of the property, as tenant and agent of two of his sisters. The sisters, with their husbands, also appeared by leave of the Court, and pleaded the general issue of not guilty, as to the portions claimed by them. Judgment for the present appellee, the plaintiff in that action, was entered for the portion of the land sued for that remained undefended, and the cause proceeded to trial on the defence taken for the portions claimed by the intervening claimants. A verdict was found for the claimants, upon which judgment was entered, and from that judgment the present appellee appealed to this Court. The judgment was reversed ; this Court holding that the claimants should not have been allowed to Intervene, as the recovery could in no manner affect their rights. 30 Md., 294. Upon the reversal of the judgment a procedendo was awarded, and the cause was reinstated in the Court below for a new trial. After the case was sent down on procedendo, the plaintiff in that action obtained leave and amended his declaration, and declared against the present appellant alone for a part of lot No. 6, according to a specific description in the declaration. To this amended declaration the defendant pleaded not guilty as to fourteen-thirtieths of the land claimed, and upon trial, at October Term, 1871, a verdict was found for the defendant. It does not appear that there has been any judgment passed upon this verdict, or that there was any motion for such judgment before the present action was brought. And whether the record, showing such state of proceeding in the ejectment suit, was properly excluded by the Court below, is the question, and the only question, presented by the exception taken by the appellant. That there is a variance between the record offered and the allegations and description as set forth in the declaration, is manifest upon the most casual inspection. The — 131 — declaration, in describing the proceedings by which the appellant alleges that he was maliciously prosecuted without probable cause, states that the appellee sued out a certain writ called an ejectment writ, by which the sheriff was commanded to summon the appellant to answer the appellee, &c. Whereas, by the record produced, it appears that the action was an ordinary action of ejectment, commenced, not by writ, but by filing a declaration in the usual form, and having a copy of it, with notice from the fictitious ejector, served on the tenant in possession, according to the regular mode of proceeding before the recent statute abolishing the fictions, and changing the mode of instituting the action of ejectment. Again, the allegations in the declaration are, that, in the action of ejectment, the appellee falsely and maliciously claimed as against the appellant all of lot No. 6, when in fact be had no probable cause of action against the appellant for the whole of that lot; and that the proceedings and trial had at the October Term, 1871, resulted in a verdict “that the said defendant should not take the whole of said lot number six.” Whereas the declaration, upon which the trial was had in 1871, proceeded for only a part of lot No. 6, and the appellant pleaded not guilty as to fourteen-thirtieths of the land claimed, and the verdict was simply for the defendant; and not as alleged in the declaration. Then again, it is alleged that no proceedings were had upon the verdict, whereupon and whereby the suit became and was ended, determined and abandoned. Whereas the record produced simply shows that no proceedings whatever were had on the verdict before the present action brought. The distinction in pleading between mere allegations of fact, and matters of description, is familiar, and becomes most material in the production of proof. Where a record or other document is described in the declaration, and there be any variance between the document produced and that — 132 — described in pleading, the document will be rejected. It is laid down as established, that every part of a written document stated in pleading is descriptive, and therefore-material to be proved as alleged. In 1 Chit. Pl., p. 400, (16th Amer. Ed.,) it is stated as a rule, “ that if a necessary inducement of the plaintiff’s right, &c., even in actions for torts, relate to and describe and be founded on a matter of contract, it is necessary to be strictly correct in stating-such contract, it being matter of description. Thus, even in case against a carrier, if the termini of the journey which was to he undertaken be misstated, the variance will be fatal.” Loper vs. De Talest, 1 B. & Bing., 538; Purcel vs. Macnamara, 9 East, 160; Weall vs. King, 12 East, 452; 1 Greenl. Ev., secs. 58, 64, 65, 69 and 70; 2 Greenl. Ev., secs. 11 and 12. And of course the same principle-applies where the action, as in this case, relates to and is founded upon a record, as necessary inducement to the plaintiff’s right, which he is required to describe and set forth in his declaration. Webb vs. Hill, 1 M. & Malk., 253; 1 Greenl. Ev., sec. 70; Walters vs. Mace, 2 B. & Ald., 756. The discrepancies between the record offered in evidence and that set forth in the declaration have already been pointed out, and they would seem to be of a character to require the rejection of the record as evidence. But the record fails to support a most material allegation in the declaration, and that is, that the action of ejectment, was finally ended, determined and abandoned. As we have seen, there was a verdict for the defendant as to part of the land claimed; but there has been no judgment upon that verdict; and it is impossible in this case to determine-what will or may be the final action of the Circuit Court in regard to the verdict. If the verdict should be set aside, it is clear, there would be no .foundation for the present action. The record, therefore, utterly fails to-show that the ejectment suit was finally ended and determined ; but, on the contrary, shows that suit to be undetermined by final judgment, or other entry therein. — 133 — In an action for a malicious arrest, an allegation that the defendants did not prosecute the suit complained of, hut therein made default, and their pledges were in mercy,” &c., was held not to he supported by proof of a discontinuance ; as such allegation amounted to the legal description of a non-suit, and the variance was held to he fatal. Webb vs. Hill, supra, as stated in 1 Wms. Saund., 230, note 4, c. It is said there is a material difference whether the party merely lets the action drop and becomes nonprossed or non-suited, or whether he discontinues the ■action, which is his own act. Ib. If the appellant desired to use the record in the former action as the foundation of the present suit, he should have moved for judgment on the verdict in his favor. It was not for the present appellee to make such motion. But this record is inadmissible upon the broader and more substantial ground, that, when considered in connection with the allegations in support of which it is offered, .it fails to show such a prosecution as will maintain the .present action. It is true, a party may be held liable for a false and malicious prosecution of either a criminal or civil proceeding ; but when it has been attempted to hold a party liable for the prosecution of a civil proceeding, it has generally been in cases where there has been an alleged malicious ■arrest of the person, as in the case of Turner vs. Walker, 3 Gill & John., 377, or a groundless and malicious seizure of property, or the false and malicious placing the plaintiff in bankruptcy, or the like. In the case of Goslin vs. Wilcox, 2 Wils., 302, which was an action for a malicious prosecution of a civil proceeding wherein the party was arrested, it was said by Lord Camden, O. J., that “ There are no cases in the old hooks, of actions for suing where the plaintiff had no cause of action; but of late years, when a man is maliciously held to bail, where nothing is owing, or when he is maliciously arrested for a great — 134 — deal more than is due, this action has heen held to lie, because the costs in the cause are not sufficient satisfaction for imprisoning a man unjustly, and putting him to the difficulty of getting bail for a larger sum than is. due.” But there is a clear and well defined distinction betw'een the actions for a false and malicious prosecution of á civil proceeding, and a false and malicious prosecution of a criminal proceeding. This distinction is stated in 1 Bac. Abr., tit. Action on the Case, (3,) page 141, where it is said: “But it must be observed, that there is a great difference between a false and malicious prosecution by way of indictment, and bringing a civil action; for in the latter, the plaintiff asserts a right, and shall be amerced pro falso clamore; also the defendant is entitled to his costs ; and therefore, for commencing such an action, though without sufficient grounds, no action on the case lies.” For this the author cites Salk., 14; 3 Lev., 210; Hob., 266; 3 Leon., 138, and Cro. Jac., 432. But if the plaintiff declares that he has been falsely and maliciously arrested, or that, by reason of a false claim maliciously asserted by the defendant, he was required to give bail, and upon failure he was detained in custody, or his property was attached, there the action lies, because of the special damage sustained by the plaintiff. It is not enough, however, for the plaintiff to declare generally that the defendant brought an action against him ex malitiá et sine causa, per quod he put him to great charge, &c.; but he must allege and show the grievance specially. Savil vs. Roberts, 1 Salk., 13, 14; S C, Ld. Raym, 374; Goslin vs. Wilcox, 2 Wils., 305, and 306; Add. on Torts, (3rd Eng. Ed.,) 599; 4 Rob. Prac., 670, 671. Otherwise, parties would be constantly involved in litigation, trying over cases that may have failed, upon the mere allegation of false and malicious prosecution. The present action, as we have seen, was brought for the alleged false and malicious prosecution of an ordinary — 135 — action of ejectment, wherein the plaintiff failed to recover all that he claimed. In the case of Purton vs. Honnor, 1 Bos. & Pul., 204, which was an action on the case to recover damages sustained in defending a vexatious ejectment, it was held, and the Court expressed themselves as being clearly of opinion, on the authority of Savil vs. Roberts, 1 Salk., 14, that such an action was not maintainable. And such being the opinion entertained by this Court, in regard to the present action, we think the ruling of the Court below was correct, and their judgment will be affirmed. (Decided 26th June, 1878.) Judgment affirmed.