The Court struck out several paragraphs of the plaintiff's malicious prosecution claim against the fifth defendant, granting leave to amend on most struck-out paragraphs but refusing to dismiss the claim entirely, finding that if required amendments were made it would be open to the plaintiff to prove facts constituting a cause of action at trial. The plaintiff's application for default judgment was dismissed. The Court confirmed that a positive plea that no court proceedings existed created a fundamental inconsistency with a malicious prosecution claim but held this could be remedied by amendment rather than warranting dismissal, and identified specific deficiencies in the pleading of malice, absence of reasonable and probable cause, and whether the prosecution was maintained as well as initiated by the fifth defendant.
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