12 A.2d 5 | Pa. | 1940
By the Act of July 1, 1935, P. L. 503, a one year limitation was prescribed for the bringing of suits to recover damages for malicious prosecution, with a similar period allowed from the passage of the statute in cases where the cause of action had already accrued. The present suit in trespass, being for damages for a malicious prosecution in 1934, was barred, by virtue of this act, after July 1, 1936, but action was not begun until July 18, 1936. For that reason defendant, at the conclusion of plaintiff's case, requested and was granted a compulsory nonsuit, which the court in banc refused to take off. Plaintiff now appeals on the ground that *454 defendant, because of a pleading he had filed, was not entitled to take advantage of the statute of limitations.
The Act of May 25, 1887, P. L. 271, section 7, provided that the only plea in an action of trespass should be "not guilty." Under that plea it was not necessary to plead specially the defense of the statute of limitations: Martin v. PittsburghRailways Co.,
The controversy here arises from the fact that defendant, although not obliged to do so, did file an affidavit of defense. In it he alleged that he had reasonable and probable cause for the prosecution he had instituted, that plaintiff was in fact guilty notwithstanding his discharge by the magistrate, that defendant had instituted the prosecution in good faith and not maliciously, and that plaintiff had not suffered any damage. Plaintiff takes the position that defendant, by filing this affidavit of defense, limited himself to the defenses thus set forth. He relies upon a dictum in Vendig v. Union League ofPhiladelphia,
Even if plaintiff's appeal were sustained, the nonsuit taken off, and a new trial awarded, plaintiff's victory would be merely a Pyrrhic one. Defendant, before the retrial took place, would be entitled to amend the affidavit of defense filed by him so as to include therein what is an obvious fact, namely, that plaintiff's action was barred by the statute: Tribulas v.Continental Equitable Title Trust Co.,
The order of the court below dismissing plaintiff's motion to take off the compulsory nonsuit is affirmed.