Dreux v. Domec
Before: Baldwin
Synopsis
In suit against three defendants for malicious prosecution, the complaint averred that “defendants contriving and maliciously intending to injure the plaintiff,” etc., falsely, maliciously and without probable cause, procured him to be indicted for murder: Held, that the complaint sufficiently avers a joint agency • on the part of defendants in instituting the prosecution.
An action for malicious prosecution lies against several defendants, and the gist of the action is the malicious prosecution, and probably the cause of action is complete before acquittal.
An action of conspiracy for unjustly prosecuting a party also lies, but probably differs in form at least from an action for malicious prosecution. The gist of an action of conspiracy is the “ conspiracy ”—the combining of two or more to do an unlawful and injurious act, and acquittal or termination of the prosecution is necessary to maintain the suit.
In an action for malicious prosecution, only the substantial matter constituting the action, that is facts, and not the evidence of facts, need be set out.
In this case defendants filed a general denial, and also averred that they had notho ing to do with the prosecution except as witnesses. Plaintiff filed a replication taking issue on this averment: Held, that if plaintiff chose to consider this a good defense and join issue on it, defendants cannot complain— though, probably, this matter was put imissue by the general denial and the replication was unnecessary.
In an action for malicious prosecution, plaintiff, to show malice, may introduce the docket and proceedings before the Justice of the Peace, and show what the defendants—who had plaintiff arrested for assault with intent to kill— there did and swore to. '
Whe'rc the objection to the introduction of testimony was in general terms that it was irrelevant, the objection will not be considered in the Supreme Court, if the testimony could, under any possible circumstances, have been relevant. The instructions in this case were correct, and there was no error in refusing the nonsuit as to one of the defendants, or in refusing- first to submit to the jury the question of his complicity with the view to his being a witness for his co-defendants, if he were acquitted.
Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.
This was a suit for a malicious prosecution. Several defendants are charged, the complaint averring that the defendants, contriving and maliciously intending to injure the plaintiff, etc., procured him to be indicted. The complaint seems to follow the precedent of Chitty in cases of a similar cause of complaint against a single defendant. A demurrer was interposed, among other grounds, because no averment is made of any joint agency on the part of the defendants in instituting this prosecution. The demurrer was overruled.
It is well settled that this action for malicious prosecution will lie' against several defendants. It is argued, however, that a conspiring must be averred. It is true, that an action lies for a conspiracy unjustly to prosecute a defendant; but we apprehend that this action is somewhat different, in form at least, from an action on the case for a malicious prosecution. The gist of this action is the malicious prosecution; that of the other is the conspiracy—the combining of two or more to do an unlawful and injurious act. In the first case, we apprehend the cause of action is complete before an acquittal; in the other, the acquittal or termination of the prosecution is necessary to enable the plaintiff to maintain the suit. But, however this may be, we think that it would be holding the rule to unnecessary strictness to hold that the defendants are not sufficiently and clearly charged with a joint act, when but one general offense is charged, and this averred to be committed by all with the same unlawful motive, and that they all contrived to effect it.
2. Nor is it maintainable that the facts whereby this unlawful prosecution was effected or carried on were not more particularly set out. It is not necessary to give the evidence of facts, but only the substantial matter which constitutes the action. The rule was fully given in Green v. Palmer (15 Cal. 411).
3. The answer having set up that the defendants had nothing to do with the prosecution, except that they were summoned as witnesses, etc., probably no replication was necessary to put in issue [89]this matter—which was only matter of more particular denial of the charge, and was already covered by the general denial; but if the plaintiff chose to consider this a good defense and join issue on it, we do not perceive that the defendant has any cause of complaint.
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