Scheer v. Keown

29 Wis. 586

• Court: Wisconsin Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinion

LyoN, J.

The defendant probably attempted to prosecute the plaintiff, Mrs. Scheer, for the larceny of the wool, by a fictitious name. And if he did. not Imow her name, it is probable that it was competent for him to do so. But in such case the fact that her name was unknown should have been stated in the complaint and warrant, and the best description of the person prosecuted, which the nature of the case would allow, should have been given therein; as “a woman whose name is unknown to the complainant,1 but who resides in the town of -with one A.- B,” or, “ who is the wife of A. B.,” and the like. l.Chitty’s Crim. Law, 40. 1 This complaint, and the warrant issued thereupon, are entirely wanting in these essential requisites, and without them the word “alias” used therein in connection with the name of Mrs. Scheer, is surplusage, and the prosecution is against “Sophia Sherr” and “Maria Hopf,” and them only. The complaint and warrant, therefore, do not justify the arrest of “Albertine Scheer.”

It is well settled by authority, that the misnomer of a person in the process on which an arrest is made, subjects the actors to an action for false imprisonment. And this is so, even though the process by virtue of which the arrest is made; was intended to be against the person actually arrested.

Thus, in Melvin v. Fisher, 8 N. H., 406, the plaintiff, whose name was George Melvin, was arrested on a writ sued out by the defendant against George Melvil. It was not disputed that the writ was intended to be sued out against the plaintiff. The action was for false imprisonment, and verdict and judgment for the plaintiff were upheld.

In Griswold v. Sedgwich, 6 Cow., 456, the plaintiff, whose name was Daniel S. Griswold, was arrested on process against Samuel S. Griswold; but the process was intended for the plaintiff. Held, that an action for false imprisonment lay at the suit of the plaintiff for such arrest. See same case, l Wend., 126.

These cases will serve as illustrations. To the same effect are the cases of Mead v. Haws, 7 Cow., 332 ; Scott v. Ely, 4 Wend., 555 ; Gurnsey v. Lovell, 9 Wend., 319.

The English cases which hold the same doctrine are very numerous. The following are some of them: Shadgett v. Clipson, 8 East., 328 ; Wilks v. Lerk, 2 Taunton, 399; Ahitbol v. Beneditte, 2 id., 401; Scandover v. Worne, 2 Campb., 270; Price v. Harwood, 3 id., 110; 6 T. R., 234.

The foregoing authorities demonstrate that the circuit court erred in non-suiting the plaintiffs.

II. The court correctly admitted evidence of the acts and directions of the defendant in the matter of the arrest and imprisonment of Mrs. Scheer. The same is admissible as tending to show malice.

By the Court — The judgment of the circuit court is reversed, and a venire de novo awarded.