majority">Barrett, J.

The cases of Eddy agt. Beach (7 Abb. Pr. R., 19), and Shaw agt. Jayne (4 How., Pr. R., 119), are decisive of the two first branches of this motion. They clearly hold that the evidence upon which a charge of malice in procuring an arrest is based, cannot be pleaded. Malice is a fact and should be pleaded as such. The circumstsnces attending the arrest, although of themselves distinct acts, are still but the evidence 'in support of the alleged fact of malice.

As to the remaining count, the annoyances therein specified are not pleaded by way of special damage ; but even if so pleaded, their proof, instead of establishing the right to any such damages, could only tend to aggravate the ordi nary damages which naturally and necessarily result from the alleged wrong. Such matters as stated by Judge Dalt, in Moloney agt. Dows, (15 How. Pr. R., 265, 266,) (citing *14numerous cases), are allowed to be given in evidence to show the quo animus; but they are never pleaded. These views are not in conflict with those expressed in Brockleman agt. Brandt (10 Abb. Pr. R., 141). The matter there sought to be stricken out, and which was regarded as an averment of special injury, consisted of a statement that-the defendant had maliciously;procured a publication concerning the arrest, which was libelous. The damages resulting from such a publication, although springing from the arrest, are not its legitimate consequences. They flow from an independent act, distinct from the arrest itself, although based thereon, and involving consequences of a more extended character than such as naturally result therefrom. It is eminently proper that such damages should be specially pleaded, and they are plainly distinguishable from those sought to be spread upon the present record.

The motion must be granted with $10 costs, with leave to the plaintiff to serve an amended complaint within ten days upon payment of such costs.

Citation profile

How this case has been treated — in progress