111 Pa. 619 | Pa. | 1886
delivered the opinion of the court, February 15th, 1886:
It is undoubtedly true that in Pennsylvania, as elsewhere, the action of case will lie for the malicious use, or abuse, of civil process ; this, however, must be taken with the qualification that such process has been used to restrain the defendant’s personal liberty or to interfere with his property: Muldoon v. Rickey. 103 P. S. R., 110; Kramer v. Stock, 10 Watts, 115 ; Mayer v. Walter, 14 P. F. S., 283. The suit in hand is founded on the alleged malicious use of the writ of capias, by which the person of the plaintiff was seized and imprisoned. In order to sustain this action the plaintiff must not only allege in his narr, but also prove on the trial, that the defendant had not probable cause for his prosecution, and was actuated by malicious motives. The want of probable cause without malice is not sufficient; so where probable cause appears, the motive for the prosecution, however malicious, goes for nothing: Kramer v. Stock, supra; McCarthy v. De Armit, 99 P. S. R., 63, and, as was said by Mr. Justice Trunkey, in the case last cited, something more than mere legal or theoretical malice is requisite to sustain an action of this kind, for it must be proved as a fact, and whilst it maybe inferred from a want of probable cause, its existence nevertheless is for the jury. From this it follows that a jury ought not to be permitted to infer malice from the mere want of probable cause, when by other circumstances it is disproved. The discontinuance of the capias was undoubtedly prima facie proof of the want of' probable cause for the institution of the suit, but only prima facie, and required but slight evidence for its rebuttal. In this case, as in others of the same kind, proof of a discontinuance is chiefly important as showing the determination of the previous action, without which, it would seem, a suit like that in hand could not be maintained: Mayer v. Walter, supra. But, as we have seen, where malice is disproved, the want of probable cause is of no consequence, and in this is found the chief defect in the plaintiff’s case. The discontinuance and other evidence of a prima facie character going to establish malice in the original prosecution was, if there is any force in authority, completely rebutted by the fact, which no one pretended to gainsay, that the defendants in good faith acted upon the advice of counsel. We have said, and that very recently, in the case last above cited (per Mr. Justice Trunkey) : “ When the prosecutor submits the facts to an attorney at law, who advises they are sufficient, and he acts thereon in good faith, such advice is often called probable cause, and is a defence to an action of malicious prosecution; but in strict
The judgment is affirmed.