8 TEISS 32 - Ross v. Rickert

¶1Dissenting Opinion.

DUFOUR, J.

¶2I think the language in Hitchcock vs. North, 5 R. 328, is rather broad, not applicable to a case like this, and, as here construed, opposed to the trend of jurisprudence.

¶3The answer, a general denial, carries with it a denial of the allegations essential to recovery, to-wit: that the defendant acted without probable cause and with malice.

¶4The evidence introduced by the plaintiff himself without objection or restriction as to purpose and scope conclusively proves defendants’ case and shows probable , *35cause, absence of- malice, advice Qf counsel, and, in my judgment the guilt of the plaintiff. „

1. This ruling in Hitchcock vs. North, 5 R. 329, has not been followed by subsequent adjudication in cases of a similar character.2. In a suit for damages for malicious prosecution, a plaintiff must prove inter alia malice and want of probable cause, and, under the general issue, the defendant may rebut such proof.3. The evidence herein offered was admissible under the pleadings and is amply sufficient to exonerate the defendant.Previous decree set aside and judgment affirmed:

¶5I deem it over technical to condemn defendant under the circumstances and to hold that he cannot obtain any relief whatsoever, other than in mitigation of damages.

¶6I, therefore, respectfully dissent and believe that the plaintiff’s demand should be rejected.

¶7May 30, 1910.