11 Pa. 81 | Pa. | 1849
The opinion of this court was delivered by
Although the learned judge throughout his charge evinces a_ strong leaning in favour of the defendant, and has intimated his opinion to that effect in language, which it was difficult for the jury to misapprehend, that, as has been repeatedly ruled, is no cause of reversal; nor do we perceive anything else in the trial to which just exception can be taken, except the answer to the plaintiff’s second point. The court was requested to instruct the jury, that if they believed that the defendant instituted the prosecution and made the arrest for the purpose of extorting money from the plaintiff, it is not necessary for the plaintiff to prove either malice or want of probable cause; as in such case the law implies both. “ This (say the court), as a general rule, is the law; but we are of opinion that it is not applicable to the facts of this case. Where the offence charged is concealment or transfer of property, with intent to defraud creditors, the fact that the prosecutor was a creditor, or the additional fact that he agreed to compromise and suspend the prosecution on his delivery of the concealed property to the creditor, or on payment to himself of his debt acknowledged to be due and just, would not release the party accused in an action brought by him for a malicious prosecution from the necessity of proving malice and want of probable cause. The rule only applies to the case of a prosecution commenced for the purpose of extorting money fraudulently.” Taking the answer of the court together, it amounts to a negation of the plaintiff’s proposition. As I understand the answer, the court are of opinion that the rule (which is admitted to be correct) only applies when money is extorted under
In the case in hand, the plaintiff was compelled to pay money to the defendant while in prison under a charge of fraud, and after-wards to confess judgment for the money, before the justice who issued the warrant at his instance. The prosecutor, from the first, held out the temptation, that, if the money alleged to be due was paid, he should not be imprisoned, or further prosecuted. In view
The use of a criminal proceeding, as an ordinary process for the collection of debts, is a practice which needs restraint rather than encouragement.
Hor can the creditor have any just cause of complaint; for, before he institutes a criminal prosecution against his neighbour, a decent regard to justice and fair dealing requires he should investigate the charge, and be prepared to prove that there was reasonable ground of suspicion, or belief, that the debtor was about to convey or conceal his property, to elude the grasp of creditors. We also wish to notice this distinction: where there is no debt due at all, or where the demand is unfounded and unjust, the evidence is conclusive; but, where there is a debt (and this the creditor is •bound to show), it is primé facie only, and may be rebutted by other proof in the cause. That there is a debt, however, must be shown by other evidence than by confession while in prison or
Judgment reversed, and a venire de novo awarded.