Opinion by
Porter, J.,
The plaintiff brought this action of trespass and filed a statement sounding in trespass on the case, for malicious prosecution. The learned judge of the court below gave binding instructions in favor of the defendant, judgment was entered upon the verdict and the plaintiff appeals.
The statement averred that the defendant had “falsely and maliciously, and without any reasonable or probable cause whatsoever, charged the plaintiff, with removing, on December 9, 1915, certain painters’ supplies bought by money of the said defendant, and obtainéd money on false pretense, to wit, the sum of fifty dollars from the said defendant,” and upon such charge caused and procured the justice of the peace to issue a warrant for the apprehension of the plaintiff.
The only question is whether the evidence offered at the trial sustained the averments of the statement. The plaintiff offered in evidence the affidavit which the defendant had made before the justice of the peace, who had issued the warrant, the material part of the affidavit was as follows: “John Schwatka......did on December 9,1915, remove painters’ supplies from the property of Clara F. Ludes, Drexel Hill, Delaware County, Pa., the same being the property bought by money advanced by me. Further deponent saith not.” This affidavit did not charge the plaintiff with any criminal offense, did not ask for a warrant and the facts stated did not authorize the justice to issue a warrant. It might *364possibly bave afforded foundation for a summons in trover, but it could not lawfully be made tbe basis of a criminal prosecution. Tbe warrant upon wbicb it is said tbe plaintiff was arrested was not offered in evidence and we are ignorant as to its form. An action on tbe case, for malicious prosecution, could not at common law, bave been sustained upon tbis evidence: Maher v. Ashmead, 30 Pa. 344" court="Pa." date_filed="1858-07-01" href="https://app.midpage.ai/document/maher-v-ashmead-6230548?utm_source=webapp" opinion_id="6230548">30 Pa. 344; Baird v. Householder, 32 Pa. 168" court="Pa." date_filed="1858-07-01" href="https://app.midpage.ai/document/baird-v-householder-6230748?utm_source=webapp" opinion_id="6230748">32 Pa. 168; Kramer v. Lott, 50 Pa. 495" court="Pa." date_filed="1865-03-20" href="https://app.midpage.ai/document/kramer-v-lott-6232561?utm_source=webapp" opinion_id="6232561">50 Pa. 495; Boyd v. Snyder, 207 Pa. 330" court="Pa." date_filed="1904-01-04" href="https://app.midpage.ai/document/boyd-v-snyder-6247404?utm_source=webapp" opinion_id="6247404">207 Pa. 330. While tbe distinction, so far as tbe action is concerned, between trespass vi et armis and trespass on tbe case is abolished by tbe Act of May 25, 1887, P. L. 271, it does not follow that one may file a statement averring facts wbicb would bave given him tbe right to recover in an action of trespass on tbe case, and sustain that statement by evidence establishing a different state of facts: Clark v. Forsyth, 55 Pa. Super. 67" court="Pa. Super. Ct." date_filed="1913-10-13" href="https://app.midpage.ai/document/clark-v-forsyth-6277993?utm_source=webapp" opinion_id="6277993">55 Pa. Superior Ct. 67., There was no evidence in tbe case from which a jury should bave been permitted to find that tbis defendant bad charged tbe plaintiff with any criminal offense, or knew that tbe plaintiff was to be arrested until after tbe arrest bad actually been made. There was a fatal variance between tbe allegations of tbe statement and tbe evidence wbicb tbe plaintiff introduced in bis attempt to support them, and tbe instruction of tbe court to find for tbe defendant was free from error.
Tbe evidence, tbe rejection of wbicb is made tbe subject of tbe second specification of error, would not bave sustained tbe averments of tbe statement, and that specification of error is overruled. Tbe third, fourth and fifth specifications of error refer to tbe rulings of tbe court upon objections to certain questions asked tbe justice of tbe peace, by counsel for plaintiff. Those rulings were based entirely upon tbe form of tbe questions, wbicb were leading. After tbe court bad made these rulings it distinctly said to counsel for plaintiff: “If there is anything else that you want tbe witness to say that occurred, other than what he has said, be may *365state anything else that occurred.” Counsel for the plaintiff did further interrogate the witness, who testified, in substance, that he could not remember anything that the defendant had said other than what appeared in the affidavit.
The judgment is affirmed.