| Pa. | Jul 1, 1858
The opinion of the court was delivered by
The information and complaint which constitutes the foundation of the alleged malicious prosecution, by the plaintiff in error, charged upon plaintiff below, nothing hut a simple trespass, in no way amenable to the criminal jurisdiction of the justice, nor cognisable in the Quarter Sessions. And the warrant issued thereon, and under which the plaintiff below was arrested, and bound over to answer, did not in the least amplify or change the nature and character of the charge. As respects a criminal prosecution, therefore, the information and process were not only irregular, but void on the face of them, and all concerned in the arrest were, in law, trespassers. Hence, by those principles of law, touching this question, which have been so frankly acknowledged and conceded, in the argument made here for defendant in error, the only action sustainable by him is trespass, and not case. But this action is expressly instituted in “ case sur malicious prosecution.” Such is the language of the praecipe for the writ. The plaintiff also declared in the same way. The amendment allowed by the court below, and filed at the term of the trial, we do not consider subject to the exception taken there. But it left the action still in ease, and offered no substantive change, in the form of declaring, that is not fully authorized by the Act of the 21st of March 1806, and the uniform practice under it. Nor did the alteration help the plaintiff in the defective point.
After a careful examination of this whole case, we are unable to distinguish the ruling principle of it from Maher v. Ashmead, 6 Gasey 344, reported since the trial below. Therefore, as well upon principle as authority, this judgment must be reversed.
Judgment reversed.