Mentel v. Hippely, 165 Pa. 558

Mentel v. Hippely

165 Pa. 558 | Pa. | 1895

Opinion by

Mr. Justice Fell,

The offer of testimony, the rejection of which is the subject of the first assignment of error, went only to show that, after a statement made by the plaintiff to the magistrate of the occurrences upon which the charge of larceny was based, that officer took the information and issued the warrant. It did not go to the extent of showing that the prosecution was commenced under the advice of the magistrate, and it was not helped by the statement of what was intended to be shown by it. An offer of testimony maj^ be explained, but it cannot be enlarged Iry a statement of its purpose. It must stand or fall as made. The assignment therefore does not raise the question whether in an action for malicious prosecution it is competent to prove, as tending to rebut the presumption of malice, that the prosecution was instituted by the advice of a magistrate sought in good faith before the commencement of proceedings and given and acted upon after a full and frank disclosure of all the facts, and it is unnecessary now to consider it.

The fourth assignment is based upon the alleged insufficiency of the statement of the cause of action in that it “ does not contain the averment that the proceedings before the alderman were fully ended and determined before the suit was brought.” It is set out in the statement that the alderman, after hearing, announced that the charge of larceny was not sustained, and *561that the plaintiff was publicly discharged from arrest. This averment we think sufficient to sustain the action. The discharge was the end of the prosecution as far as the defendant was concerned, and practically it was its end to all intents and purposes. The prosecution might be renewed, but this is true in the case where a bill of indictment has been ignored, or where the discharge has been made by a judge after a hearing under a writ of habeas corpus. There are many cases in our reports founded upon prosecutions which ended by the ignoring of the indictments, and it was distinctly held in Zebly v. Storey, 117 Pa. 478, that the discharge of the plaintiff upon a writ of habeas corpus was such a final determination of the prosecution against him as would entitle him to maintain an action for malicious prosecution. It was said in that case, after quoting the ruling upon the question by Judge Bell at nisi prius, reported in Charles v. Abell, Brightly, 131: “ The practice of commencing suit for malicious prosecution after a hearing and discharge by a committing magistrate appears to have passed unchallenged in this state.”

The judgment is affirmed.