
    ARREST ON A FALSE AFFIDAVIT.
    Common Pleas Court of Hamilton County.
    Robert L. Ballew v. Ralph H. Coney.
    Decided, December 9, 1910.
    
      Damages for Arrest — Malicious Prosecution Distinguished from False Arrest and Imprisonment — Pleading.
    Where an action for damages is founded on a false affidavit for arrest, the action is one for malicious prosecution, and not false arrest and imprisonment, and it is necessary to allege that the charge in the affidavit was made falsely, maliciously and without reasonable cause.
    
      Charles M. Leslie, for the demurrer.
    
      Joseph T. Harrison, contra.
   WOODMANSEE, J.

The plaintiff pleads in effect that the defendant caused the plaintiff to be unlawfully arrested by making a false charge in an affidavit before the clerk of the police court of Cincinnati.

The precipe sets out that the action is for money as damages for “false arrest and imprisonment.”

The pleading, in the opinion of the court, is not sufficient to set out a cause of action either for false arrest and imprisonment or for malicious prosecution, which actions are often confused.

The petition shows that the plaintiff was arrested as an outgrowth of an affidavit filed by the defendant. If the warrant which issued upon the filing of the affidavit was legal, then it is not a case of false -arrest and imprisonment. To state a case the petition must show the arrest was without warrant, or by an illegal warrant. Nothing in the petition before us is an equivalent of such an allegation.

If the suit is founded on the false affidavit which the petition indicates is the real basis for the alleged action, then it is a suit for malicious prosecution. In that event it is necessary to allege in the petition that the charge in the affidavit was made 1 ‘ falsely, maliciously and without reasonable cause. ’ ’ Bates on Pleading, Vol. 3, page 2088.

Demurrer sustained.  