Van De Wiele v. Callanan

Citations

• 7 Daly 386

Syllabus

<p>The objection that the complaint, in an action for malicious prosecution, does not allege want of “probable cause,” but only of “just” or “proper” cause, although it would, it seams, be good upon demurrer or a motion at trial to dismiss the complaint for insufficiency, is not available when raised for the first time upon appeal from an order vacating a dismissal of the complaint and granting a new trial.</p> <p>In such an action, where the malicious prosecution complained of was the arrest on a criminal charge and the bringing of plaintiff before a magistrate, the evidence that upon his examination before the magistrate the plaintiff executed a recognizance to appear before the Court of General Sessions, and that in such recognizance it was'recited that there appeared to the justice to be probable cause to believe the plaintiff guilty, does not establish conclusively that the magistrate lost jurisdiction of the proceedings, or that there was probable cause, if there is ■also evidence that the recognizance was not intended to remove the proceedings, that the examination proceeded before the magistrate, and that the plaintiff was discharged.</p> <p>Since the amendment to the Code in 1851, a judge at trial term may set aside a dismissal of a complaint, in an action tried before him with a jury.</p>