Hill v. Egan

Opinion by

Mr. Justice Mitchell,

According to the facts as they appear in the paper-books, the plaintiff was arrested upon a warrant issued at the instance of defendant, and on hearing before the magistrate was held to bail. After the hearing was thus ended and defendant had gone away, the plaintiff was discharged without the entry of the required bail. Whether this was done by the magistrate or by the police officers appears to have been left in doubt by the evidence, and the learned judge charged the jury that if it was an escape, by the compassion of the police, it was not a legal discharge, but that if it was the act of the magistrate, then it was an end of the prosecution and plaintiff could recover. This view however entirely overlooked the facts, apparently undisputed, that the hearing had terminated in a holding to bail, and that the magistrate had no right without notice to the prosecutor to open the case and render a different judgment. No such illegal action on his part could make the defendant liable for malicious prosecution. On such a state of facts the view taken by the learned court below at the first trial, which resulted in a nonsuit, was correct.

But unfortunately for the appellant we have nothing before us on which to base a judgment. We have none of the evidence, for there is no bill of exceptions. Even as to the charge therefore, we could not pass upon it, for want of the facts to which it related. But the charge itself, though printed in the paper-book of appellant, is not of record. It nowhere appears to have been filed by the judge, or approved by him and filed by his order. The case therefore is not in position for us to afford appellant any relief.

This case was tried and the appeal taken before the announcement of the decisions of this court in Rosenthal v. Ehrlicher, 164 Pa. 396, Connell v. O’Neil, 154 Pa. 582, and Com. ex. rel. v. Arnold, [not yet reported,] and in view of the fact that the failure of counsel to have the record put in proper shape for review was owing to erroneous ideas of practice, which were corrected in those decisions, we think this is a very proper case for relief by the court below by the allowance of a bill of exceptions nunc pro tunc, or in such other form as it may in its discretion deem best.

For the present we have nothing before us.

Appeal quashed.