The Hawaiian gazette., 1889-03-12

counsel for the defendants IN other
u-1eesdiugS. the foundation Of this
action, did not sit
opinion s tie court By PREsTONJ.
This Is an action described in the
declaration rs an action of trespass.
The declaration, stripped Of a
quantity oT unnecessary and en-
54--aszing verbiage, states that on
The Goth OF December, 1856, an
action was commenced in this
court by the defendant, Alderman,
against the plaintiff to recover the
sum Of s59S.63. That plaintiff,
whose usual residence was IN san
Francisco was at that time in He-
lolulU, and had prepared to return
. san Francisco by the steamer
Australia. and that on the odd De-
eember, while on board said
steamer, he was arrested and re-
moved from said steamer by con-
stable IN pursuance of a warrant of
arrest issued by order of Mr.. JUS
ace NcCully, upon an affidavit
made bv the defendant, Sehaefer,
rs agent of observation-disclosures,
shat the plaintiff was about to leave
-ni= Kingdom. That Ackerman's
claim was unf0unded in law, and
thar said defendant, Schaefer, ma
illlusly c0ntriving, by unjust and
--litr8ry means, to c0@ce payment
plaintiff, OF said unfounded
claim. obtained said warrant of ar
rest That plaintiff was detained
a custody until the Sd Of January,
So. and that said suit was deter
mined in favor of the plaintiff.
The plaintiff claimed five thousand
S-ar= damages.
the case was tried at the last
October term before AIr. justice
1-cruilr and q jury, when the Conrt
directed the jury to find q verdict
Tor the defendants on the grounds:
That ualace was not alleged That
malice and want Of probable cause
we're not proved, because at the
-lme u the attachment there was q
debt owing by COngdon to Acker-
man In law. That there being
legal debt. Alderman had the right
Euier the statute, TO issue the pro-
cess of arrest, and that the same
rule governs cases Of this nature,
a. II actions for malicious criminal
prosecution, viz: both malice and
Falt OF probable cause must be
zlleEed and proved.
The plaintiff excepted to this di-
recti0n and the exceptions were
argued before Us at the January
rern.
Section $50 Of the Civil Code,
which authorizes the issuing of
process Of arrest reads as. follows:
"Tpon q complaint verified by
ahe oath of the plaintiff in any suit,
DIT some person on his behalf, being
fled with the Clerk Of any Court of
record, OF before any Police Court,
IN this Kingdom stating that a de-
=enlaur is about to quit
the Kingdom, it shall be lawful for
such court, upon the filing of the
bond hereinafter provided, 10 issue
process for the arrest and detention
cf such defendant, until he shall
have entered into security, with
sufficient sureties, to abide the re-
suit of such suit, and to pay the
amount OF such Judgment as shall
a rendered thereon: provided,
however. that no such process Of !
als1r4lnt shall be issued by such |
e11r- until such plaintiff, or some |
le-s1u cn his behalf, shall have |
E-el q sufficient bond in a reason |
able amount for the reimbursement |
20 such defendant Of all damages |
and costs which he shall sustain in |
consequence Of such arrest, in case
plaintiff shall fail to sustain such
suit"
The plaintif contends that the
action i statutory, and that it was
not necessary for him to prove that
the arrest was malicious and with
rur urobable cause. that it was suf-
Eeiert 10 prove that the defendant
succeeded at the triad of the action,
In which he was arrested, and that
this suit. not being a suit at COM
mon law. for malicious arrest, the
duestion Of malice or no malice
could not be considered, except
with regard to vindictive damages, 4
and that the plaintiff was entitled |
10 raeover actual damages.
The case of JCrHlaR as. Ste}rart ct /
al u Fed. Rep. 266, was relied
upsn by the plaintiff in support of (
his contention.
ave have considered this case and !
ehe Judgment Of the learned Dis
rrict Judge who decided it, but we
are clearly 81 opinion that, however
correct such decision may be under
he statute law OF the State of Ten
nessee. 1t is not applicable TO the
ease Ell bar.
The learned Judge says: HThe
srS- connt of the declaration is in
80 ordinary common law form to
recover damages for the prosecution
n al action without probable cause,
,nd that Il that had been the only
,ount. and our statute a5oliShilg
$500 M action did not render 1t