8 Watts 240 | Pa. | 1839
The opinion of the Court was delivered by
Though there is a resemblance betwixt an action for the malicious prosecution of a criminal charge, and an action for a malicious arrest or holding to excessive bail in a suit, the cases are not entirely parallel. In a criminal prosecution, want of probable cause must be combined with malice; but in a civil suit the existence of a cause of action is not a defence to a suit for an excessive use of the process. In Wray v. Law, Peters's Rep. 210, it was ruled that a malicious holding to bail for an undoubted cause of action entitles the party to legal redress; but that, if bail be not demanded, an action cannot be maintained for instituting an unfounded suit. Hence, though it was intimated by Mr Justice Ross in délivering the opinion of the court in Wengert v. Beashore, 1 Penn. Rep. 32, that want of probable cause is indispensable to an action for maliciously suing out a capias ad respondendum, he fell into an inaccuracy by not pursuing his own sound distinction betwixt want of probable cause for a criminal prosecution, and Want of well-founded cause for a civil suit. The gist of the action, in the one case, is the origination of a malicious and groundless prosecution, which ipso facto put the party in peril; in the other, it is not the origination of an action, but an abuse of the process consequent on it. There are other principles, however, which seem to be common to both.' Want of probable cause is evidence of malice, though inconclusive, in the origination of a prosecution; and want, of an ostensible cause of action is evidence of malice in the procurement pf an arrest; but the existence of probable cause is conclusively established by a conviction, Fisher v. Bristow, Doug. 215; same principle, F. N. B. 114: a competent tribunal has sanctioned the accusation, and there can be no further question about it. So '
Then whether the prosecution before the justice be treated as a criminal or a civil one, the plaintiff has no case. The conviction established the existence of a cause of action, and it is not pretended that there was an exaction of excessive bail. But, putting that aside, the direction was too favourable to him on another ground. Though the prosecutor, being entitled to call for the production of a license in the first instance, proceeded, in default of it, at his peril, yet one was actually produced, but disallowed; and he is in no worse predicament than if it had been, as it doubtless would have been,impugned before the accused was arrested. The prosecution would have been commenced, as it was maintained, on a mistake of the law in respect to the power of the mayor’s court. Now, though every man, being bound to know the law, is answerable
Judgment affirmed.