Mandamus by Frederick E. Rupright to compel John Vanderwerp, circuit judge of Muskegon county, to reinstate capias ad respondendum proceedings. Submitted July 17, 1919. (Calendar No. 28,843.) Writ granted October 6, 1919. Charles E. Misner, for plaintiff. Carpenter & Jackson, for defendant. BIRD, C. J. On November 23d, one Clifford R. Wassell, of Muskegon, caused the arrest of plaintiff on a capias ad respondendum and plaintiff was kept in the county jail by the sheriff for a period of four hours. At the end of that time he was released on his promise to Wassell that he would go and stay away from the county of Muskegon. Later plaintiff's counsel moved to quash the writ on the ground that the order to hold to bail was not sufficient. During the pendency of this motion Wassell's attorneys stipulated a discontinuance of the writ and proceedings. This matter being disposed of, plaintiff caused the arrest of Wassell on a capias for false imprisonment and abuse of civil process. Wassell's attorneys moved the court to dismiss the writ on the ground that the affidavit for the capias was insufficient. This motion was granted. Plaintiff now asks this court for a writ of mandamus to compel the circuit judge to reinstate the capias. Several reasons were set forth in Wassell's motion to dismiss but the one principally relied upon was "because the affidavit does not show or set out any cause of action." As a basis for the writ plaintiff filed a declaration counting therein on false imprisonment and abuse of civil process, and supported it by his affidavit which shows in substance: (a) That said Charles R. Wassell caused his arrest on a capias with an order for bail in the sum of $2,000 indorsed thereon without any probable cause for so doing; that he did not furnish bail and was in consequence imprisoned for four hours in the county jail. (b) That at the end of the four hours' imprisonment he was taken from the jail and given his liberty on condition that he would leave the county of Muskegon. (c) That subsequently the capias and proceedings thereunder were dismissed upon application of Wassell's own attorneys and plaintiff was discharged. (d) Plaintiff further makes it appear that the said Wassell was president of the Columbia Motor Company; that the Columbia Motor Company was endeavoring to acquire the title to a gasoline motor that had been patented by the plaintiff, and that much ill feeling existed between himself and the said Wassell on account of the attempt to acquire said motor. Plaintiff shows, by appropriate allegations, that the said Wassell caused his arrest and imprisonment for the purpose of enabling him the better to get control of said motor and said patents. The declaration filed sufficiently charges defendant with false imprisonment and with abuse of civil process. When plaintiff shows by his affidavit that he was arrested on a capias at the instance of Wassell, that the same was without probable cause upon the part of Wassell and that the proceeding was subsequently voluntarily dismissed, he makes a prima facie case of false imprisonment. Burhans v. Sanford, 19 Wend. (N. Y.) 417. When plaintiff showed these facts and the further fact that he was given his liberty upon condition that he would go away from the county of Muskegon and remain away, and shows the ill feeling between him and Wassell over the motor and the promotion of it, we are of the opinion that he makes a prima facie case of the abuse of civil process. Paulus v. Grobben, 104 Mich. 42; Marlatte v. Weickgenant, 147 Mich. 266; We are of the opinion that the trial court was in error in holding the affidavit insufficient. Upon the trial court's attention being called to this opinion the writ of mandamus will issue, if necessary, to reinstate the proceedings. The plaintiff will recover his costs in this court. MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred. The late Justice OSTRANDER took no part in this decision. PARKE, DAVIS & CO. v. GRAND TRUNK RAILWAY SYSTEM. 1. PLEADING AMENDMENTS-PARTIES- SUBSTITUTION - SERVICE OF PROCESS. Where suit was commenced against the Grand Trunk hailway System, under the erroneous impression that it was a corporation, while in reality it was only an operating name used by the real defendant, the Grand Trunk Railway Company of Canada, a motion to amend the pleadings, after plaintiff had made its case on the merits, by substituting the name of the real defendant for the one named was properly denied, in the absence of evidence that service was made upon an officer of the real defendant. 2. SAME GENERAL ISSUE-WAIVER BY COUNSEL. It cannot be said that defendant's counsel waived the defect by pleading the general issue, where it nowhere appears that he was in court on that particular occasion representing the real defendant; the plea being filed for the defendant named in plaintiff's declaration. Error to Wayne; Tappan, J., presiding. Submitted June 5, 1919. (Docket No. 60.) Decided October 6, 1919. Case by Parke, Davis & Company against the Grand Trunk Railway System for the negligent killing of plaintiff's horse. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed. George J. Haines (Charles M. Woodruff, of counsel), for appellant. Harrison Geer, for appellee. BIRD, C. J. The Michigan Air Line Railroad Company, which extends from Richmond to Jackson, passes through plaintiff's farm in Oakland county. One of its horses passed on to the railway right of way and track, by reason of a defective fence, and was run down and killed by a passing train. Plaintiff brought suit against the Grand Trunk Railway System to recover its damages. Suit was commenced by declaration and the return of service indorsed thereon shows the following: "STATE OF MICHIGAN, "County of Wayne, "I hereby certify and return, that on the 11th day of May, A. D. 1917, I served the declaration of which the within is a copy, on Grand Trunk Railway, the defendant named in said declaration, by delivering to George W. Alexander, local treasurer of said railway, said defendant, at the city of Detroit, in said county of Wayne, a true copy thereof and of the foregoing rule to plead, the notice relating thereto, together with a true copy of the notice to appear and plead, attached thereto as hereto attached. (Signed) "EDWARD F. STEIN, "Sheriff of Wayne County. "By EDMOND A. LODGE, "Deputy Sheriff of said county." Harrison Geer, of Detroit, an attorney, filed a plea of the general issue on behalf of the Grand Trunk Railway System. Later the matter came on for trial and after plaintiff had made its case on the merits the showing was made by attorneys Geer and Williams that the Michigan Air Line Railroad was one of several independent Michigan railway corporations which were being operated by the Grand Trunk Railway Company of Canada, but that George W. Alexander upon whom service was made was not local treasurer of the Grand Trunk Railway Company of Canada but was secretary of the Michigan Air Line Railroad Company. It was further shown that these Michigan lines of railway so owned and controlled by the Grand Trunk Railway Company of Canada were operated under the name of the Grand Trunk Railway System but that said Grand Trunk Railway System was not a corporation but was simply an operating name used for convenience. It further appeared that Harrison Geer, who filed the plea, was the attorney for the Grand Trunk Railway Company of Canada and had been for upwards of 20 years. Upon this showing a motion was made by counsel for a directed verdict in behalf of defendant. At this stage of the proceedings plaintiff asked permission of the trial court to amend the proceedings by striking out the name of the defendant "The Grand Trunk Railway System" and substituting therefor the name of "The Grand Trunk Railway Company of Canada." The conclusion of the trial court was that plaintiff's motion to amend should be denied and that defendant's motion for a directed verdict should be granted. Plaintiff brings error. 1. Several errors are assigned. The important one is the assignment directed at the refusal of the court to grant the amendment. Counsel invoke the rule |