Vanderpool v. Kissam — 6 N.Y. Super. Ct. 715

Majority

p. 715

Vanderpool v. Kissam, impleaded with Keeler.

Headnote

An affidavit to obtain an order for the arrest of the defendant in an action for malicious prosecution, must set forth the facta relied on as presumptive evidence of the want of probable cause.

It is not sufficient to atate in general terma the existence of malice .and the want of probable cauae.

March 13, 1852.

M W. Stoughton, for the plaintiff

H. P. Hastings, for the defendant.

Upon a motion to discharge the defendant, Kissam, from arrest, it was decided by

at chambers, after a consultation with all the Justices, that in an action for a malicious prosecution, an affidavit for holding the defendant to bail is insufficient, when it states only in general terms the existence of malice and the want of probable cause. The facts which are relied on as prima facie evidence of the want of probable cause, must be set forth in the affidavit, so as to enable the 'judge, to whom the application for an order of arrest is made, to draw the proper conclusion of law. If such facts are omitted, the party swears only to his own belief, and his opinion, or that of his counsel, is substituted for a judicial decision.

Upon this ground, as well as upon affidavits on the part of the defendant, proving the existence of probable cause, the motion for his discharge was granted.