Majority
Headnote
In an action for maliciously and falsely obtaining an order of arrest against the plaintiff in another action, the complaint is defective where it omits to state that the order of arrest had been vacated, or that judgment had been rendered for the defendant therein, unless it appears that the order was a nullity áb initio.The complaint does not state that the order of arrest which it alleges the defendant maliciously and falsely obtained against the plaintiff in another action, had been vacated, or that judgment had been rendered for the defendant therein. If the order was a nullity ah initio, and Could afford no justification, these allegations would be unnecessary. But the order set forth in this complaint is clearly not void. If at all defective, and issued on a false affidavit, it is only voidable; and this must be determined by the competent authority, before an action can be sustained against the persons who procured it. (Reynolds agt. Corss, 3 Cai. R. 271 ; Burt agt. Place, 4 Wend. 597 .)
Judgment for defendants on the demurrer, with costs, unless plaintiff amend complaint, and pay costs within ten days.