#### Reed *v.*Wilson.

The statute Of limitations of 1713, will, in two years, bar an action for malicious prosecution in wrongfully procuring the plaintiff to be arrested; and the period of limitation will not be extended to six years by averring that the defendant entered into a conspiracy with the mother of a bastard child, and induced her to prosecute the plaintiff for fornication and bastardy.

Nov. 7, 1887.

Error, No. 245, Oct. T., 1887, to C. P. No. 2, Allegheny Co., to review a judgment in favor of defendant, overruling a demurrer to a plea, in an action on the case, by M. A. Reed *613against William C. Wilson, at Oct. T., 1885, No. 186. Trunkey and Clark, JJ., absent.

On Aug. 20, 1885, the plaintiff issued a summons in the form of trespass on the case against the defendant.

“ The first count of the declaration charged that defendant, on March 20, 1883, falsely, maliciously, with desire to inflict great injury and damage on the said plaintiff, conspired and colluded with one Elizabeth McMunn, and with the willful and malicious design of causing great injury to his name and fame, and for the intent and purpose of shielding himself, said defendant, from loss and costs and injury, caused, invited and impelled said Elizabeth McMunn, without any reasonable or probable cause whatsoever; and said Elizabeth Mc-Munn, having been incited so to do, went before one David McCrory, Esq., then and there being one of the justices of the peace in and for the township of North Fayette, said county, and then and there, at said township, before the said David McCrory, so being such justice as aforesaid, to wit, at said county, falsely, maliciously, and without any reasonable or probable cause whatsoever, she, said Elizabeth McMunn, having been induced and incited so to do by said defendant — he, said defendant, having conspired and colluded with her so to do — by complaint in writing, under oath, she, the said Elizabeth McMunn, charged the plaintiff with having ‘ had sexual connection with her on the second day of June, 1882, in the house of William C. Wilson, under the promise, if anything happened, he would make it all right with her; ’ and ‘ that he,’ the said plaintiff, ‘ and none other, is the father of her child, born of heron Tuesday, March 6, 1883.’ And, upon such complaint and charge, the defendant falsely and maliciously incited said Elizabeth McMunn, without any reasonable or probable cause whatsoever, to have, cause and procure the said David McCrory, Esq., so being such justice as aforesaid, to make and grant his certain warrant under his hand and seal, for the taking the plaintiff, and for bringing the plaintiff before him, the said David McCrory, justice as aforesaid, to answer said complaint and to be further dealt with according to law, for the said supposed offence.”

The additional counts were as follows:

“ And the said defendant, colluding and conspiring with said Elizabeth McMunn, under and by virtue of the said warrant, after-wards, to wit, on the day and year aforesaid — to wit, on the day of March, A. D. 1883 — at Allegheny county aforesaid, wrongfully, unjustly, and without any reasonable or probable cause whatsoever, caused and procured the plaintiff to be arrested by his. body and taken into the custody of a constable for said supposed offence; and afterwards, to wit, on the 3d day of April, A. D. 1883, at Allegheny county, wrongfully, unjustly, and without any reasonable or probable cause whatsoever, forced and obliged the plaintiff to go and appear before the said David McCrory, Esq., then and still being a justice of the peace as aforesaid, and to be examined by and before *614the said David McCrory, Esq., so being such justice as aforesaid, of, upon and for the said supposed crime or offence. Which said justice, having heard and considered all that the defendant could say or allege against the plaintiff, he, said defendant, having incited and procured the said Elizabeth McMunn to so prosecute said plaintiff, touching and concerning the said supposed offence, afterwards, to wit, on the 3d day of April, 1883, at said township and county, the said plaintiff and the said Elizabeth McMunn being present and ready to answer or prosecute the (within or ) said charge or complaint, upon due consideration the said Elizabeth McMunn, without the knowledge and against the consent of the said defendant, withdrew said charges and complaint made against said plaintiff, and refused to prosecute the same against the plaintiff. And the said David McCrory, Esq., so being such justice of the peace as aforesaid, at the county aforesaid, adjudged and determined that the plaintiff was not guilty of the said supposed offence; and then and there caused the said plaintiff to be discharged out of custody, fully acquitted and discharged of the said supposed offence. And the defendant hath not further prosecuted his said complaint, owing alone to his inability to further unlawfully and maliciously cause perjury or subornation of perjury, in, of and by said Elizabeth McMunn against the said plaintiff, but also because the said Elizabeth McMunn hath deserted and abandoned the same; and the said complaint and prosecution is wholly ended and determined, to wit, at Allegheny county aforesaid.

“And, whereas, also, heretofore, to-wit, on March 6, 1883, the said defendant, further contriving, and wickedly and maliciously intending, as aforesaid, to injure, wrong, defame, and distress the said plaintiff, incited said Elizabeth McMunn, and with the said Elizabeth McMunn the said defendant did willfully, maliciously collude and conspire, and the defendant then and there did induce, force and compel said Elizabeth McMunn, without a reasonable or probable cause whatever, to charge the said plaintiff with having had unlawful sexual intercourse with her, said Elizabeth McMunn, on'June 2d, 1882, and of being, from and as the result of this said unlawful sexual connection, the father of a child born to her on the 6th day of March, 1883. An offence indictable under the law, and punishable with fine and imprisonment. And upon the said last-mentioned charge, instigated and incited by the said defendant, who impelled, forced and compelled said Elizabeth McMunn so to do, he, the said plaintiff, then and there, to-wit, on the day of March, 1883, she, said Elizabeth McMunn, so incited by the defendant, falsely and maliciously caused and procured the said plaintiff to be arrested by his body, and to be imprisoned, and to be kept and detained in prison for a long space of time, to-wit, from thence hitherto. And on the 3d day of April, 1883, the said Elizabeth McMunn being present, with the said plaintiff, before the said justice, the said plaintiff having been forced to appear for examination and trial before the *615said justice of the peace for the said alleged or supposed offence, the said prosecutor, Elizabeth McMunn, withdrew said charge and complaint made by her at the instigation of the defendant, and thereupon the said Elizabeth McMunn, not having any ground or evidence to support the said false and malicious charge so made by her at the instigation and by the combination of the defendant with her, then and there, on April 3d, 1883, neglected to bring the same on to a hearing or trial, and he, the plaintiff, being innocent of the said supposed offence, was then and there duly discharged out of the said custody, fully acquitted and discharged of the said supposed offence, and thereupon and then and there the said case was dismissed at the cost of the prosecution.

*“*By means of which said several premises, he, the said plaintiff, hath been, and is greatly injured in his said credit and reputation, and brought into public scandal, infamy and disgrace with and amongst all his neighbors, and other good and worthy citizens of this state, and divers of those neighbors and citizens to whom his innocence in the premises was unknown, have, on occasion of the premises, suspected and believed, and still do suspect and believe, that the plaintiff hath been and is guilty of the said offence; and also the said plaintiff, by means of the premises, suffered great anxiety and pain of mind and body, and hath been forced and obliged to lay out and expend, and hath laid out and expended divers large sums of money, in the whole amounting to a large sum of money, to-wit, the sum of five hundred dollars, in and about the procuring his discharge from the said imprisonment, and defending of himself in the premises, and the manifestation of his innocence in that behalf, and hath been greatly hindered and prevented, by reason of the premises, from following and transacting his lawful and necessary affairs and business for a long- time, to-wit, for the space of two years; and also, by reason and means of the said premises, the said plaintiff hath been, and is otherwise greatly injured in his credit and circumstances, to-wit, at Allegheny county aforesaid.

“ To the damage of the plaintiff in the sum of fifteen thousand dollars, and he therefore brings this suit.”

The defendant filed the following plea: “ And now, to wit, Sept. 15, 1887, comes the defendant, by his counsel, and says that the cause of action complained of in the plaintiff’s declaration occurred more than two years before the bringing of this suit, to wit: The arrest complained of occurred on March —, 1883, and defendant was discharged on April 3, 1883, and the summons in this case was issued on August 20, 1885, and that, by reason of the premises, the action is barred by the statute of limitations.”

To this plea the plaintiff demurred, and the court made the following order: “ This cause having, by agreement of counsel, come on to be heard on the defendant’s plea of the statute of limitations and the demurrer of the plaintiff thereto, now, Sept. 15, 1887, *616upon consideration thereof, judgment is entered on the plea and demurrer in favor of the defendant, with costs of suit.”

The plaintiff then took this writ.

*The assignment of error*specified the above order of the court, quoting it.

*Fitzsimmons,*with him *Robb*and *Patterson,*of counsel for the plaintiff in error.

The Act of March 27, 1713, 1 Sm. L. 76, provides, among other things, that actions of trespass, of assault, menace, battery, wounding, imprisonment or any of them, shall be brought two jrears next after the cause of such actions or suits and not after.

We think that, under a fair construction of this statute, this cause of action does not fall within the list of enumerated cases in that portion of the section of the Act of Assembly just quoted. In this Act, the legislature makes a distinction between the action “ upon the case,” which includes all actions to recover damages for injuries occasioned by indirect force and consequential; and the action of ‘ trespass, for assault, menace, battery, wounding, imprisonment, etc.’ That they have drawn this distinction intentionally is indicated by another clause in the same section, to wit; “ The said actions upon the case other than for slander, .... within six years next after the cause of such action for suit, and not after.” Now, the action “ upon the case,” in the enumerated list of actions in this section of the Act, does not mean the action known to lawyers as trespass on the case in assumpsit merely, but includes, as well, all actions on the case for negligence, actions on the case brought under the provisions of a statute and for all causes sounding in tort, where, under the well-settled rules of pleading, an action of trespass would not lie. This is indicated by the clause to be found in said section of said Act of Assembly, commencing with “ all actions upon account and upon the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants);” and this idea is furthermore distinctly indicated by the fact that the legislature has provided for a full and complete distinction between said “ action of case ” and all actions “ of trespass, of assault, menace, battery, wounding and imprisonment, or any of them.” The distinction between these several causes of action is definite and clear, and this Act was framed by the legislature with the apparent design of preserving and keeping intact the distinctions between causes of action to recover for injuries caused by direct force, and causes of action where a force was indirectly employed and the damages were consequential, at common law. These distinctions between these causes of action have been preserved intact to the present time, or at least until the passage of the Act of 1887, and that Act even did not change the cause of action, but merely changed the mode of procedure so as to avoid the multiplicity of forms of action.

Trespass is the only remedy for a menace to the plaintiff, at*617tended with consequent damages: 3 Bl. Com. 120. Trespass is the only remedy for an illegal assault, battery and wounding or imprisonment, when not under color of process: 11 Mod. 180, 181; Hurst Carlisle, 3 P. & W. 176; 1 Chit. PI. 162. Also,where the defendant, in uncocking his gun, discharged the same and wounded the plaintiff, who was standing by and looking at him : Underwood *v.*Hewson, Str. 596; Taylors. Rainbow, 2 Hen. & Mun. 423. Also, it lies for criminal conversation, seducing away a wife or servant, or for debauching the latter, force being applied, and the wife and servant being considered as having no power to consent: 1 Chit. PI. 162. If the injury were immediate, as if the defendant incited his dog to bite another, or let loose a dangerous animal, or if, in the act of throwing a log into the public street, it hurt the plaintiff, or if an injury be committed by cattle to land, the action should be trespass: 1 Chit. PI. 133.

The court, in the decision of this case, bases the judgment upon the term “ imprisonment ” in the statute. He evidently took the ground that the term “ imprisonment ” was broad enough to include all cases where the party injured was in prison, or was under arrest, either with or without a warrant duly issued by some competent legal authority. The court, in so holding, totally disregarded the distinctions well settled at common law, where an action of trespass would lie for every unlawful restraint of liberty, while an action of case would lie where damages were caused by reason of a malicious prosecution under a warrant duly and regularly issued by some competent authority. Where trespass would lie, direct force was the injury complained of; where case would lie, the force was not direct, and the damages were for the malice or the malicious abuse of a process.

If a person be unlawfully arrested in the street, this, although he be not carried into a house, is a false imprisonment, and trespass lies: Finch’s Law, 202. Every arrest of a man for a civil cause which is not warranted by a legal process, is an unlawful restraint of liberty, and trespass lies: 2 Inst. 51 and 52. If A be arrested instead of B, whom the sheriff has a writ to arrest, this, although A be very much like B in the face, is a false imprisonment, for the sheriff is at his peril to take care that he do not arrest any other person than him against whom the writ is issued, and trespass lies: 2 Roll. Abr. 552; 1 Bulst. 149. An unlawful detention of a person who has been arrested does, although the first arrest was lawful, amount to a new arrest, and consequently it is a false imprisonment, and trespass lies: Withers *v.*Henley, Cro. Ja. 379. If the order of a court be to confine a person in a certain prison, the confining of him in any other prison is a false imprisonment, and trespass lies: Swinstead *v.*Lyddal, 1 Salk. 408. A commitment under a warrant of a justice of the peace which does not mention the crime for which the person is committed, is a false imprisonment, and trespass lies: Boucher’s Case, Cro. Ja. 81; Hoskins *v.*Young, 2 Dev. & Bat. 527; *618Taylor *v.*Alexander, 6 Ohio, 126. If a peace officer, after having arrested a man under a warrant of a justice of the peace, suffers him to go at large and afterwards retakes him under the same warrant, it is false imprisonment, and trespass lies: 2 Hawk. P. C. 13, § 9. An action for false imprisonment lies by an inferior against his superior military officer for an imprisonment under military arrest, if such imprisonment be excessive beyond what military discipline, under the circumstances of the case, requires, and trespass lies: Wall *v.*McNamara, x T. R. 536; Swinton *v.*Molloy, 1 T. R. 537 ; Bradley *v.*Arthur, 4 B. & C. 292.

The distinction indicated by the authorities above cited has been observed by this court down to the present day, and the same indicates that imprisonment, in its technical sense as known to our law, does not mean the arrest of a person charged with a crime under a legal process, as the following citations will clearly show:

If a warrant be shown by the officer to the person charged, who thereupon, without compulsion, attends the officer to the magistrate, and,after examination,is dismissed, this is not an imprisonment: Smith *v.*Le Mesurier, 5 B. & P. 211. It seems to have been always holden that it is not a false imprisonment in an officer to arrest a person under the process of superior courts, although the process were irregularly issued : Grant *v.*Bagge, 3 East, 140.

No person who acts upon a regular writ or warrant can be liable to an action of trespass, however malicious his conduct, but case for the malicious motives and want of probable cause for the proceeding is the only sustainable form of action: Boot *v.*Cooper, 1 T. R. 535; Plumber *v.*Dennett, 6 Greenl. 421; 1 Chit. PL 186.

This distinction, respecting the actions of case, has been followed by this court in numerous cases to the present time, and the same rule has been followed by all the American states where the common law distinctions respecting actions have been observed. And the action of trespass has always lain to recover damages caused by the illegal restraint of liberty or imprisonment, while the action of case has always lain to recover damages for the malice of the prosecutor, or the conspirators, or the unlawful abuse of process. The gist of the action in actions of trespass is the force directly applied in the restraint of liberty of the party injured, or his imprisonment, while the gist of the action in actions on the case for .tort is the malice of the prosecutor and his abuse of a lawful process causing consequent damage to the party injured.

Formerly it was usual, where several persons combined in the prosecution, to proceed by writ of conspiracy, but the action on the case is now the usual remedy: Mott *v.*Danforth, 6 Watts, 304; 1 Chit. Pl. 133.

These distinctions are so clearly apparent, from the well-settled rules of law, that there cannot be any doubt upon this question. The court will observe, upon the perusal of the statute of 1713, that actions upon the case are carefully distinguished from actions of *619trespass and the particular causes of actions, to wit: “ of assault, menace, battery, wounding, imprisonment,” for which trespass would lie under the common law from time immemorial, has been limited to two years, while actions on the case have been limited to six years. Now, wounding and imprisonment, in themselves, are not forms of actions, but damages are recoverable for the same in an action of trespass. It surely would not be contended, at this late day, that an action on the case for negligence against a railroad company, where a passenger was wounded by the collision of trains; or where a passenger was wounded by a street car; or injured by a collision of one vehicle with another vehicle on the street; or for wounds caused by falling over an obstruction negligently suffered to lie in the public highway; or where a person travelling along the street was injured by a falling body through the negligence of a contractor or his employees on a building; or where a person fell into a pit negligently left unguarded near the public highway, would be barred under this statute in two years after such cause of action; yet such causes of action would fairly come under the term “ wounding ” in the Act of 1713. In further confirmation of this view, the Act provides that, of all the actions of case for tort, there is one particular action of case which must be brought within one year of the said cause of action, to wit: “ actions upon the case for words.”

Now, there was an underlying reason for these distinctions and the different classes of limitations for the bringing of such suits. In all causes of actions, to wit, “ assault, menace, battery, wounding, imprisonment, or any of them,” the evidence for the maintenance or defence was at hand when these injuries were committed. But in the actions of case, years may intervene between the commission of the act and the discovery of the guilty party, hence it would be within the power of a skulking conspirator to cover up the evidences of his dastardly act for over two years and then escape unwhipped of j ustice. The same reason would apply to actions on the case for words.

We have searched in vain for an adjudication of this question in Pennsylvania, and we believe that no such decision-can be found. But the following principle running through the cases decides it in our favor: The inquiry must be, what would have been the form of action at common law ? If, in such form, there would have been a bar, it will still continue: Hannum *v.*West Chester, 63 Pa. 475 ; DeHaven *v.*Bartholomew, 57 Pa. 129; Rank *v.*Hill, 2 W. & S. 56; D., L. & W. R. R. *v.*Burson, 61 Pa. 369; Thompson *v.*McGaw, 2 Watts, 161; Doebler *v.*Snavely, 5 Watts, 225 ; Richards *v.*Bickley, 13 S. & R. 395; Dillebaugh’s Estate, 4 Watts, 177; Patterson *v.*Nichol, 6 Watts, 379. Actions for malice, for an abuse of process, such as a conspiracy to prosecute without probable cause, or subornation of perjury, must be an action of case and never an action of trespass.

*620Jan. 3, 1888.

*Tkos. M.*Marshall, with him *Miller & McBride,*for defendant in error,

While trespass will not lie against an arresting officer who acts upon a warrant issued by a court or magistrate who has-jurisdiction of the subject-matter and the defendant in the proceeding, that proposition has no likeness to the case in hand. It is not the form, but the cause, of action which is to be considered; and it may be stated, as a general rule, that, whenever the cause of action is such as would be subject to the bar, if prosecuted under any of these forms, then the statute is applicable: Hannum *v.*West Chester, 63 Pa. 475.

Whilst a conspiracy is an offence which may be prosecuted in criminal jurisdiction without any overt acts, in pursuance of the breathing together of the conspirators, such is not the law in civil procedure. The offence against the public peace can be punished by the public law. The suit by a private person must show personal damage peculiar to himself, either to his person, his property or his reputation. To sustain a civil suit for conspiracy, the plaintiff must show an overt act, in pursuance of the breathing together, injuriously affecting the plaintiff in person, property or reputation. What is the overt act alleged in the declaration ? It is the arrest and imprisonment of the plaintiff at the command of the defendant. It is alleged to be an unlawful imprisonment. The warrant is nowhere alleged to have been regular or according to law. This overt act is expressly covered by the statute as an imprisonment, and the bar of the statute is a full answer, no matter what the form of actipn.

Trespass will lie where the arrest is done or procured for a corrupt willful or unlawful purpose: Hacket *v.*King, 6 Allen, 58; Breck *v.*Blanchard, 2 Foster, N. H., 311; Prough *v.*Entriken, 11 Pa. 81.

While we find no express adjudication in Pa. that the action on the case for malicious prosecution is subject to the bar of the statute, as of two years, neither do we find that it is six years. If the damage were laid as of reputation, by analogy, it would be one year. If imprisonment of the body, as alleged, then it would be two years.

The gist of the charge is this : That the defendant, by force, compelled Elizabeth Munn to charge the plaintiff with the paternity of a bastard child, that all the proceedings were forceful by the defendant, procuring the illegal arrest and imprisonment of the plaintiff. Would not trespass be a proper remedy?

Per Curiam,

The demurrer, in this case, was well ruled against the plaintiff; his cause of action was, in fact, the trespass that was committed against his person by the alleged false prosecution and arrest, whilst the alleged conspiracy was of no effect save to give form to the action. As was said by Mr. Justice Sharswood, in Hannum *v.*The Borough of West Chester, 63 Pa. 475 : “ It may be stated, as a general rule, that, whenever the cause of action *621is such as would be subject to the bar, if prosecuted under any of these forms, then the statute is applicable.”

Clearly, if Wilson instigated the false prosecution by means of which the plaintiff was arrested, he, Wilson, was guilty of a trespass, and could have been sued under that form of action; and it is just as clear that the mere form of the action cannot affect the operation of the statute.

The judgment is affirmed.