Majority
p. 281Morris vs. Scott.
Headnote
An action on the case for a malicious prosecution lies against a party who falsely and maliciously prosecutes another, although the court in which such prosecution was had was pttefly destitute of jurisdiction in the matter ; consequently it is not necessary in the action for the malicious prosecuton to aver or prove that the court in which were the proceedings complained of had jurisdiction, provided .that the malice and falsehood of the charge be put forward as the gravamen, and the arrest or other act of trespass be alleged merely as a consequence.Error from the Allegany common pleas. This was an action on the case for a malicious'prosecution, brought by Morris against Scott, for maliciously, and without probable cause, making complaint to a magistrate against Morris, for aiding and assisting'in the removal of the property of a third person, for the purpose of defrauding the creditors of such person, suing out a warrant for his arrest, causing him to be arrested and brought before the magistrate, and subsequently tried by a court of special sessions ; by which court he was acquitted and discharged. The defendant pleaded non cul. The parties went to trial and the plaintiff offered to prove the facts as above stated. The defendant objected to any proof being received, for the want of averments in the declaration that either the justice to whom the complaint was made, or the court of special sessions before whom the plaintiff was tried, had jurisdiction in the matter. The court of O. P. sustained the objection and nonsuited the plaintiff, who sued out a writ of error.
S. B. Cooley, for the plaintiff.
G. Miles, for the defendant.
By the Court,
Authorities are cited, by the .counsel for the plaintiff in error, that an action on the case i es for a malicious prosecution, although the court in which it is instituted had no jurisdiction. Goslin v. Wilcock, 2 Wils. 302. ln Smith v. Cattel, id. 376, it is said “ the sting
p. 282
of these kind of actions is malice and falsehood, and the injury done in pursuance thereof.” The question has also been much discussed in a later case, on error. Elsee v. Smith, 1 Dowl. & Ryl. 97; 2 Chit. R. 304. S, C. A party who pursues a man by arrest in a court destitute of jurisdiction, may be sued in trespass for tlie false imprisonment; and the objection is, that whatever might have been his malice, and however plain the want of probable cause, the injured man cannot bring an action on the case, especially if he mention and claim damages in his declaration for the arrest and imprisonment. In such case he has committed an assault and false imprisonment, an act which, in its own nature, is a trespass vi et armis. But taking the authorities together, they give a decided countenance to an action on thé case, though there may be a total want of jurisdiction,' provided the malice and falsehood be put forward as the gravamen, and the arrest or other act of trespass be claimed as the consequence. This case, therefore, as it stood at the common law, seems properly set down by Mr. Chitty as presenting a right to elect between ease and trespass. 1 Chit. PI. 127, Phil. ed. of 1828. But be that as it may, a clear right of election arises under the statute, 2 R. S. 456, 2d ed. § 16. By that section, case may now be brought for almost any trespass affecting the person or personal property. Conceding therefore that the declaration failed to show jurisdiction, the evidence offered should have been received. The judgment must be reversed, and a venire de nova go from the court below, the costs to abide the event.