Teran v. Marks

TANNER, P. J.

This is ah action on the case for malicious prosecution and is heard upon demurrer to the amended declaration.

The case is based, first: upon a 'fraudulent enticement of the plaintiff into the State for the purpose of making a service upon him; second: upon the arrest of the plaintiff upon a false affidavit.

After hearing upon the demurrer to the original declaration, the Court suggested that the allegation of enticement into the State should be amended so as to allege that the enticement was for the purpose of serving a writ upon him; the original declaration being without such allegation.

The plaintiff has apparently endeavored to comply with the Court’s suggestion, but through some mistake has inserted the amendment in the wrong place. The words: “and for the purpose of inducing the plaintiff to come into the State of Rhode Island so that a writ of arrest may be serve upon him” should have been inserted in a prior place and in connection with the allegation of enticement.

We think that there is duplicity in the declaration because it alleges two distinct grounds for malicious abuse of process; first: fraudulent enticement into the State for the purpose of service, and, second: an arrest upon a false affidavit of just cause of action and intention of the defendant to leave the State.

If these defects are remedied, we think the declaration will state a ■good cause of action, since such cases' of -malicious abuse Of process can be brought under the action cf malicious procesution.

Lazon vs. Charroux, 18 R. T. 467.

Demurrer sustained.