90 Pa. 259 | Pa. | 1879
delivered the opinion of the court,
' The facts of this case, in brief, are as follows: In 1837, Henry Buttorff, husband of Elizabeth Buttorff, to whom the premises then belonged, leased one acre of ground to Henry Rupp, for the term of twelve years, with privilege of erecting thereon a warehouse, which the tenant was to have the right to remove at the end of the term. Rupp entered and erected the warehouse. This lease was afterwards assigned, by Rupp’s assignee, to H. G. Mpsef, by Moser to Daniel Rupp, and by the latter to Mary Rupp, the plaintiff below. She, in turn, sublet to her two sons Jacob and John S. The lease was extended from time to time, and finally expired on the first day of April 1873. In August 1872, as is alleged on part of the plaintiff, she, with the consent of her sub-tenants, and by them as her agents, commenced to take down and remove the warehouse, erected on the demised premises, as above stated. It was then that defendants, Christian Eberly and Mary Eberly, his wife (formerly Mary Buttorff), brought an action of ejectment against Jacob and John S. Rupp, issued ' a writ of estrepement, and thus put an end to the removal of the warehouse. The ejectment was determined in the court below in favor of Mrs. Eberly, but was removed to the Supreme Court, and there the judgment was reversed. In the meantime the lease expired and no further attempt was made to remove the building. It is for the recovery of damages thus alleged to result from the writ of estrepement, that this action is brought.
The court instructed the jury, that if the plaintiff was, by the writ of estrepement, prevented from removing the warehouse during the continuance of the lease, and so deprived of th"e. use of the materials composing it, she was entitled to recover the full value of such materials. There is here no allegation of any abuse of legal, process, nor, indeed, does the,, evidence warrant such allega
And though legal process may, by its malicious use, give rise to a cause-of action, yet, even in such case, there must not only be a malicious use, but there must be no reasonable or probable cause for such process, since if there be such cause, the intention goes for nothing. Mr. Justice Sharswood in Mayer v. Walter, 14 P. F. Smith 283.
It is clear, therefore, that from no point of view, which was found in this c.ase, was the plaintiff entitled to judgment.
The judgment is reversed.