Opinion by
Mr. Justice Trunkey:The plaintiffs were in possession of a lot and buildings thereon, under a contract between themselves and the defendant. On November 7, 1877, the defendant instituted proceedings to recover possession before a justice of the peace, obtained judgment and, by virtue of execution on that judgment, the officer removed the plaintiffs and put the defendant in this action into possession. That judgment was taken to the court of common pleas where it was affirmed; but in this court the proceedings were reversed and set aside, on the ground that the justice had no jurisdiction.
In this action the declaration contains one count only. It recites the making of a contract in writing, and an additional oral contract which modified the -writing; avers that the plaintiffs, in performance of said contract, expended large sums of money and made valuable improvements, and always have been ready to fully perform the contract on their part; and complains that the defendant, in the fall of 1877, not then having any reasonable or probable cause of action whatsoever against the said plaintiff, but wrongfully, illegally, and in violation of the contract made on the 21st day of December, a. d. 1874, and unjustly contriving and intending to harass, oppress, and obtain possession of the property of said plaintiffs, and thereby injure the said plaintiffs, did falsely, maliciously, illegally, and in violation of con*208tract, cause and procure a judgment before Morgan Reed, a justice of the peace in Pottsville, to be entered for the possession of the premises of the plaintiffs, and, having so obtained the judgment as aforesaid, did falsely, maliciously, and illegally, and in violation of contract, cause and procure to be issued out of the court of the said justice a certain wit, called a writ of possession, against the said plaintiffs and all claiming under them, by which writ the said constable was commanded, that he should take the said plaintiffs and all claiming under them and put them out of possession and deliver possession of the premises to the defendant.
And it is farther charged that the constable did put the plaintiffs out of possession, and put the defendant in, and so made his return on January 29, 1879; and subsequently in May, 1879, said judgment of the justice was reversed and set aside. Then follows averment that by means of the premises they were deprived of their “property in violation of contract;” suffered great pain in body and mind; were greatly injured in credit and circumstances; were hindered and prevented from transacting their lawful affairs and business, and forced to expend large sums of money, and have been greatly injured and damnified.
It is manifest that the recital of the contract and of the plaintiffs’ performance thereof is merely inducement. It explains how the plaintiffs came into possession of the land, and why the defendant was not entitled to it. Nothing is set out showing that the defendant had contracted not to bring suit to recover possession. The cause of action is stated in the part of the declaration above quoted. Its model seems to be a form in case for malicious arrest for debt (2 Chitty, Pl. 600), appropriate changes being made.
As in that form, it avers the want of probable cause of action, the defendant’s malice, his wrongful and unjust contrivance to harass and oppress the plaintiffs, his false and malicious procuring of judgment and the execution thereof, and the final termination of the action; and concluding “by means of which several premises,” etc. True, the phrase, “in violation of the contract,” is repeatedly inserted; but no breach is alleged in any form aside from the institution and prosecution of the proceed*209ing before the justice of the peace. If that phrase means nothing it is .not hurtful. The declaration is good in case, for the malicious prosecution of the proceeding before the justice, and that is the cause of action shown. The unnecessarily long inducement is harmless.
And the evidence fails to show any breach of contract, unless the procuring of judgment, ordering execution to be issued, and receiving possession of the property from the officer who executed the writ, is a breach. If the contract was such that the defendant had no right to the possession, the plaintiffs had opportunity to defend before the justice. The matter in dispute was adjudicated and enforced by execution. For what was involved in that, and for nothing else, it is claimed the defendant- violated the contract. If upon such allegation and proof, an action on the case, merely for breach of contract, can be sustained, it is difficult to say where litigation would end. Any tenant, dispossessed by due legal process, may chop around and sue the landlord for breach of the contract by which he got possession. Instead of disposing of the merits in the suit to recover possession, the tenant may afterwards sue for breach of contract; and in ease he had a meritorious defense in the prior suit, he may give in evidence that suit and enforcement of the judgment, not only to win vindictive damages, but to establish the alleged breach. N or would the principle apply only to a case where the suit was to recover possession of land.
We think the principle contended for by the plaintiffs is unsound. They may be entitled to remedy, but not in this form; that is, if the action is to be treated as case for breach of contract, with nothing to constitute a breach save the former suit between the parties.
In Herman v. Brookerhoff, 8 Watts, 241, Chief Justice Gibson pointed out the distinction betwixt an action for malicious prosecution of a criminal charge and an action for malicious arrest in a civil suit; and he stated some of the points of resemblance. A justice of the peace gave judgment against Herman, who appealed, and in the court of common pleas, Brookerhoff discontinued the suit. Thereupon Herman sued Brookerhoff for maliciously suing out a capias ad respondendum and causing *210his arrest It was ruled that whether the prosecution before the justice be treated as a civil or criminal one, the plaintiff had no case. The conviction established the existence of a cause of action.
In that case, as in this, the justice was mistaken. Here, not until the decision of this court was it determined that the justice had no jurisdiction, but that determination did not settle that Fehr maliciously brought the suit. The judgment of the justice established the existence of a cause of action; and whether, that judgment was discontinued after appeal to the common pleas, or was reversed when brought into this court, these plaintiffs have no case for maliciously obtaining the judgment and enforcing it by execution, unless there be proof of an excessive use of the process. At the trial it was not contended that there had been excessive use of the writ of possession. •
The plaintiffs’ fourth point evidently refers to the institution and prosecution of the proceeding before the justice, and the argument is that the process was unwarranted and illegal; so decided in Graver v. Fehr, 89 Pa. 460; and that therefore the defendant “was guilty of a malicious abuse of process, and is liable to be mulcted in vindictive damages.”
There was no error in directing the jury to find for the defendant, and the assignments of error need not be severally noted.
Judgment affirmed.