STERRETT, J. To warrant the entry of judgment in favor of plaintiff, it is of course necessary that at least a portion of the original judgment, on which the scire facias issued, should appear to be unpaid. The words contained in the entry of satisfaction on the mortgage record, viz.: "The debt thereby secured having been fully paid," amount to an admission that the judgment, in which the debt was merged, had, theretofore, been paid, and in the absence of evidence to the contrary would be conclusive of the fact; but the facts and circumstances connected with the satisfaction of the mortgage clearly show that such was not the case; that $2,000 of the debt, evidenced by the bond, on which the original judgment was entered, remains unpaid. Indeed, that fact is distinctly admitted by the case stated, and must, therefore, be accepted as true; and there is nothing in the case stated that would have the effect of estopping either the legal or equitable plaintiffs from claiming the balance thus admitted to be due. If Mackintosh, Hemphill & Co. had not assigned the judgment to Mrs. Torrence, they would have the right, for aught that appears, to collect the unpaid balance. It does not appear that any one acted on their admission, above referred to, that the debt was fully paid; and nothing having been done to estop them from collecting the admitted balance, they had a right to assign the same to Mrs. Torrence, either for value or as a gift, and thus invest her with all their right, title and interest therein. The fact that she previously united with her husband in the deed conveying the land in question to Johnston could not estop her from enforcing the lien of the judgment in the same manner that her assignors could have done. She is not in any way affected by her husband's warranty against incumbrances, etc. It follows, therefore, that there is nothing to prevent her administrator from enforcing payment of the admitted balance of the judgment against the land originally bound by the lien thereof in the hands of the terre-tenants, unless the lien, as to them, has been permitted to expire for want of proper steps being taken to keep the same alive. This brings us to the only remaining question in the case, viz.: Whether the proceedings in this scire facias, to revive the original judgment, etc., have had the effect of continuing the lien thereof against the land in the hands of the terre-tenants. In view of repeated decisions of this court this should no longer be an open question. In Porter v. Hitchcock, 98 Penn. St. 625, it was distinctly ruled, as in effect it had theretofore been, that where a scire facias to revive a judgment is issued within five years from the rendition thereof, against the defendant therein only, and after due service judgment is entered against him, as was done in this cause, the issuing of an alias scire facias and service thereof on the terre-tenant within five years from issuance of the original scire facias operates to revive and continue the lien of the original judgment against such terre-tenant. The facts in that case were in effect the same as in the case at bar. In 1876, the terre-tenant bought property incumbered by the lien of a judgment entered in 1875, recorded her deed and went into possession. Afterward in 1877, a scire facias was issued on the judgment, was duly served on the defendant therein, but not on the terre-tenant. In 1879 judgment was taken against the defendant in the scire facias, and in

1881 an alias scire facias was issued and served on the terre-tenant. She appeared and filed an affidavit of defense in which she claimed the alias scire facias was inoperative to continue the lien of the original judgment against her title, because it was not issued and served for more than five years from the date of her purchase. The court below thought otherwise, and accordingly entered judgment de terris ; and, on writ of error to this court, the judgment was affirmed in an opinion by our brother GORDON. The reasons given therefor need not be repeated here. They will be found in the opinion referred to and in the cases there cited.

Judgment reversed, and judgment de terris is now entered on the case stated, in favor of plaintiff and against defendants for $2,000 with interest from May 3, 1880, and costs.

EMERSON V. COCHRAN.*

February 15, 1886.

MALICIOUS USE OF CIVIL PROCESS ACTION FOR.

Where there has been a malicious use or abuse of civil process to restrain one of his personal liberty or to interfere with his property, an action of case will lie. In a suit by A. against B., founded upon an alleged malicious use of a writ of capias, held, that in order to sustain his action, A. was bound not only to allege in his declaration, but to prove on the trial, that B. had not probable cause for the prosecution, and was actuated by malicious motives.

Error to the court of common pleas of Fayette county.

The Cochrans were operating a coal mine; Emerson, who owned a piece of ground near the opening into their mine, was employed by them as a miner; a strike occurred among the employees of the Cochrans, and Emerson at the time quit work. For the purpose of intimidating the new hands called into service at the mine, the strikers entered upon the land of Emerson at a commanding point, pitched a tent and stocked the place with provisions. The Cochrans requested Emerson to turn the party off his ground; this he declined to do, whereupon the Cochrans consulted counsel, and the result was, the issuing of a capias and the seizure and imprisonment of Emerson, who in a few days was released on bail. About a year afterward, the action commenced by the Cochrans was discontinued; Emerson then instituted an action on the case against the Cochrans to recover damages for false imprisonment. Upon trial, under instructions from the court, the jury rendered a verdict for the defendants.

R. P. Kennedy and E. Campbell, for plaintiff in error. In a case of malicious arrest the question will be what is the appropriate remedy, trespass or case. See Farmers' Bank v. McKinney, 7 Watts, 214,

Mr. Hilliard says, in his work on the law of Torts, vol. 1, p. 451, § 26, a: "So an action lies for using process for a private purpose, not warranted by the requirement of the writ or the order of the court, even though there was a good cause of action, and though the former suit is not terminated."

In the case of Muldoon v. Rickey, 103 Penn. St. 110; S.C., Am. Rep.,

* See Am. Rep. 396; 8 id. 363.

Mr. Justice GORDON, delivering the opinion of this court, says on page 113: "It has, therefore, been wisely determined that for the prosecution of a civil suit, however unfounded, where there has been no interference with either the person or property of the defendant, no action will lie." "An action on the case has not yet succeeded, but only where the plaintiff in the first suit made the course of the court requiring special bail a pretense for detaining another in prison, and where the malice was so specially charged that it appeared that the end of the arrest was not the expectation of benefit to himself by a recovery, but a design of imprisoning the other." This latter citation is a quotation by Mr. Justice GORDON, from Potts v. Imlay, 1 Southard, 230. The Pennsylvania rule is indicated as follows, viz.: "Our own cases whilst they do not carry the doctrine stated quite as far as those cited do, nevertheless confine actions of this kind to very narrow limits. Thus it was held in Kramer v. Stock, 10 Watts, 115, that to sustain an action on the case for malicious proseecution, it was necessary that the party should have committed an illegal act from which positive or implied damage ensued, but that to bring an action, though there was no good ground for it, was not such an illegal act. On the other hand, where one abuses legal process, by maliciously holding one to bail, or wantonly levies an execution for a larger sum than is due, or after payment of the debt, an action will lie against him, for these are illegal acts, and damage is thereby sustained. Again, Mr. Justice SHARSWOOD, in the case of Mayer v. Walter, 14 P. F. S. 283, has, without qualification, declared that a mere suit, however malicious or unfounded, cannot be made the ground of an action for damages. Eberly v. Rupp, 9 Norr. 259. See Grainer v. Hill, 4 Bing. N. C. 212; Prough v. Eutriken, 1 Jones, 81. And lastly, in Herman v. Brookerhoff, 8 Watts, 240, Mr. Chief Justice GIBSON, in delivering the opinion of this court, says on page 241: "In Ray v. Law, Peters' C. C. 210, it was ruled that a malicious holding to bail, for an undoubted cause of action, entitles a party to legal redress." See Wetmore v. Mellinger, Supreme Court of Iowa, 23 Am. Leg. Reg. 711. Also, McCarthy v. De Armit, 99 Penn. St. 63.

M. M. Cochran and Boyle & Mestrezat, for defendant in error. It is sufficient if the defendants before issuing the writ for his arrest had reasonable grounds for the belief of his guilt. Fisher v. Forrister, 33 Penn. St. 501; Deitz v. Langfitt, 63 id. 234; McCarthy v DeArmit, 99 id. 63. In Kirkpatrick v. Kirkpatrick, 39 id. 292, Mr. Justice THOMPSON, of this court, sitting at nisi prius, in granting a nonsuit, said: "But even if this were not so, the case, so far as it was presented by the plaintiffs, was entirely barren of two indispensable ingredients necessary to the maintenance of the action, to-wit: the want of probable cause and malice. In the case of Deitz v. Langfitt, 63 Penn. St. 240, the same learned judge, then chief justice of this court, said: "It is the rule of the text-books, and settled by a uniformity of decisions, in which there is no break, that a plaintiff in an action for malicious prosecution must establish both malice and want of probable cause against the defendant. Saunders Plead. and Ev., vol. 2, page 332, says: "This is most essential proof, and a failure in it would entitle the defendant to a verdict. Though the plaintiff prove

malice, yet if he failed to prove want of probable cause for the proceedings, he would not succeed." "The jury should have been instructed that where there is probable cause, it is not of the slightest consequence, whether the prosecutor be actuated by malice or not." "The question of what is probable cause, and whether it exists in the proof, if believed, is a question of law for the court; the proof of establishing it is for the jury." Fisher v. Forrister, 9 Casey, 501. "Here the court gave no instructions to the jury, whether there was probable cause or not, but left that question, as well as the question of the proof of the fact, to the jury, without the assistance which the law imposes upon the court; and thus the whole case was thrown upon the jury." See, also, Bernar v. Dunlap, 94 Penn. St. 329. See Sutton v. Anderson, 103 id. 151, also McCarthy v. De Armit, 99 id. 63, in which Judge TRUNKEY discusses at length the principle governing the cases of false imprisonment,and affirms what has been said in the cases above cited. In an action for malicious prosecution, probable cause is a question of law; and if specific instructions to that effect are demanded, it is error not to give them according to the facts of the case. Laughlin v. Clawson, 27 Penn. St. 328. That the advice of counsel is a sufficient defense to an action like the case at bar has been frequently decided by this court. In Walter v. Sample, 25 Penn. St. 275, this court held that if a prosecutor has fairly submitted to his counsel all the facts that he knows are capable of proof, and has acted bona fide on the advice given, he negatives, if not the malice, the want of probable cause, and is not liable to an action for malicious prosecution, even though the facts did not clearly warrant the advice and prosecution. This case is followed by Fisher v. Forrester, 33 Penn. St. 501, and Bernar v. Dunlap, supra. See Porter v. Seiler, 23 Penn. St. 424; Anderson v. Long, 10 S. & R. 55.

GORDON, J. It is undoubtedly true that in Pennsylvania, as elsewhere, the action of case will lie for the malicious use or abuse of civil process; this, however, must be taken with the qualification that such process has been used to restrain the defendant's personal liberty, or to interfere with his property. Muldoon v. Rickey, 103 Penn. St. 110; Kramer v. Stock, 10 Watts. 115; Mayer v. Walter, 14 P. F. S. 283. The suit in hand is founded on the alleged malicious use of the writ of capias, by which the person of the plaintiff was seized and imprisoned. In order to sustain this action, the plaintiff must not only allege in his narrative, but also prove on the trial, that the defendant had not probable cause for his prosecution, and was actuated by malicious motives. The want of probable cause without malice is not sufficient; so where probable cause appears the motive for the prosecution, however malicious, goes for nothing. Kramer v. Stock, supra; McCarthy v. De Armit, 99 Penn. St. 63. And, as was said by Mr. Justice TRUNKEY, in the case last cited, something more than mere legal or theoretical malice is requisite to sustain an action of this kind, for it must be proved as a fact, and whilst it may be inferred from a want of probable cause, its existence, nevertheless, is for the jury. From this it follows that a jury ought not to be permitted to infer malice from the mere want of probable cause, when by other circumstances it is disproved.

The discontinuance of the capias was undoubtedly prima facie proof of the want of probable cause for the institution of the suit, but only prima facie, and required but slight evidence for its rebuttal. In this case, as in others of the same kind, proof of a discontinuance is chiefly important as showing the determination of the previous action, without which, it would seem, a suit like that in hand could not be maintained. Mayer v. Walker, supra. But, as we have seen, where malice is disproved, the want of probable cause is of no consequence, and in this is found the chief defect in the plaintiff's case. The discontinuance and other evidence of a prima facie character, going to establish malice in the original prosecution, was, if there is any force in authority, completely rebutted by the fact, which no one pretended to gainsay, that the defendants in good faith acted upon the advice of counsel. We have said, and that very recently, in the case last above cited, per Mr. Justice TRUNKEY: "When the prosecutor submits the facts to an attorney at law, who advises they are sufficient, and he acts thereon in good faith, such advice is often called probable cause, and is a defense to an action of malicious prosecution; but in strictness the taking the advice of counsel and acting thereon rebuts the inference of malice arising from the want of probable cause." If what is here said be law, and that it is so is too well settled for doubt or discussion, then was judgment properly entered for the defendants. Both Mr. Cochran and Mr. Ewing, reputable attorneys at law, detail the statements made to them by James Cochran, immediately before the issuing of the writ concerning the behavior of the rioters, and his reason for thinking they were aided and abetted by the plaintiff, and allege that without any suggestion on part of the defendants they advised the issuing of a capias. This, unless rebutted by showing that they submitted a false statement to their counsel, was sufficient to rebut the presumption of malice. But the evidence of the plaintiff, so far from showing that the statement thus made was false, in all material particulars sustained it. Moreover, if we consult the testimony produced by the defense, the Cochrans had not only probable but actual cause for their suit. That the strikers occupied Emerson's ground with his assent, if not by his invitation, can scarcely be doubted, and beyond this there was good reason to believe that he was actively engaged in the strike. It is true the defendants did propose that if the plaintiff would interfere to assist in the expulsion of the rioters from his land they would discontinue the suit as to him. But what of that? Of course it was of great consequence to them that these strikers should not have a secure lodging place within a few rods of their mines; hence, however perfect their cause of action against Emerson, they would make a good bargain if by a discontinuance they could relieve themselves of so great a nuisance. Nor have I ever heard that an offer of compromise, in a civil suit, was evidence either of the want of probable cause or malice. It will thus appear that the plaintiff's first point was properly refused for want of evidence to support it. In like manner was the third well refused, because the presumption of malice was conclusively disproved. As these points embrace the material assignments of error, we think it unnecessary to discuss the others.

The judgment is affirmed.