Fendall v. Eckert

Opinion by

Linn, J.,

This was an action of trespass. Plaintiff had a verdict against the three defendants. Their motion for judgment n. o. v. was granted for two reasons: (1) that the wrong to he redressed was malicious prosecution and that neither the affidavit on which the warrant was obtained nor the warrant itself charged a crime; (2) that there was a variance between the proofs and the allegations.

The parties refer to the action as one for malicious prosecution. But the statement of claim, while sufficient as a declaration in trespass on the case for malicious prosecution prior to the…