RANDALL vs HENRY, 5 Stew. & P. 367

SAFFOLD, J. This was an action on the case, instituted by the present plaintiff, against the defendant for a malicious prosecution. The declaration contains four counts: to the three first the defendant demurred, and the Court sustained the demurrer. On the fourth the defendant took issue, and on the trial, for a variance between the proof and allegation, and perhaps other objections, the proof offered was rejected, and the verdict and judgment were rendered for the defendant. The rejection of this testimony was excepted to, in the Court below, but is not now relied on.

The decision of the Court, in sustaining the demurrer to the three first counts, is the ground of error now insisted on.

The charge alleged in the declaration is, in substance, that the defendant, Randall, wickedly and maliciously intending to injure and defame him, the plaintiff, and to cause him to be oppressed and deprived of his liberty, appeared before one Silas Randall, a justice of the peace, and there falsely and maliciously, and without any reasonable or probable cause, charged, on oath, the plaintiff, with having “ feloniously altered a certain pass, given to his, the said defendant’s, negro man, Philland that, by means thereof, falsely and maliciously, and without any probable cause, procured a warrant, and thereupon, caused and procured him, the plaintiff, to be arrested and imprisoned, &c., from which he was afterwards discharged, and that the prosecution was ended, and abandoned.

It is true, as suggested, that in the two first counts, the word which, from the indorsement on the writ, and the two latter counts in the declaration, appears to have been intended for “ altered,” is written in the transcript, “ obtainedThis, the counsel for the plaintiff in error insists, is obviously a clerical mistake and which the Court can assume to be such.- The misapplication of' the word, in the transcript is so evident, and a presumption that it is, in the original, as contended for, so strong, that, if necessary, the Court might, perhaps feel itself authorised to construe the record as it is presumed to be; but, as the third count, which was also demurred to, contains the word “altered," and is, in substance, the same as the allegation above stated, this removes the difficulty, and requires of the Court a decision, whether a prosecution and an arrest and detention, under the circumstances, and for the cause above described, furnishes grounds for an action upon the case against the prosecutor ?• The fact appearing from other parts of the record* that the evidence offered under the fourth count, on which issue was joined, would not have been sufficient to sustain either of the three first counts, because the charges made by the defendant did not allege the alteration to have been “feloniously " made, is not material.

The question was not, whether there was sufficient evidence to establish the facts charged, but, whether the facts as alleged, constituted a cause of action; nor are we authorised to say, that whether the demurrer was correctly determined or not, was immaterial, because the subsequent disclosure of the evidence, shewed that it was variant from the allegations of the counts demurred to, and insufficient to support them. Though the fact be probable, wc are not authoris-ed to assume that the plaintiff could have introduced no other evidence in support of the former counts.

While considering the sufficiency of the allegations, no reference can be had to the sufficiency of the proofs to support them. Then, the only question is, whether the agency, which the defendant is charged to have had, in procuring the prosecution, and the consequences thereof, as described, are sufficient to subject him to this action 1 Assuming the facto to be true, as charged in the counts, it is clear that the plaintiff has been injured, and is entitled to redress, either against the defendant or the magistrate, in this form of action, or in trespass.

The general rule is, that “ if the injury be forcible, and occasioned immediately by the act of the defendant, trespass viet armis, is the proper remedy: but, if the injury be not, in legal contemplation, forcible, or not direct and immediate on the act done, but only consequential, then the remedy is by action on the case.” An injury to reputation, which is not tangible, can not be said to be immediate or forcible; therefore, unless this action be sustainable, so much of the alleged injury of the plaintiff, as relates to his reputation, would appear to be without remedy.’ On the supposition, that the warrant was issued pursuant to the information given, on oath, by the prosecutor, (and so we are, at present, bound to consider it,) if it be admitted that the charge was false, or if true, that it did not constitute an offence for which there could have been no criminal conviction, yet the magistrate was not responsible for the consequential injury to the plaintiff's reputation.

The doctrine, on this point, is said to be, that “ in. general, no action can be-supported against a magistrate, for any thing done by him in that capacity, on the ground of malice, and if there be an irregularity, that must be treated as such, in an action of trespass.

But, with regard to the party issuing irregular process, there seems no reason, why the person prejudiced, should not be at liberty to support an action on the case, against him, where there was no cause of action, and the proceeding was malicious as well as irregular; for it would be allowing him to take advantage of his. own wrong, to suffer him to turn the plaintiff round on such an objection, after he had, in an action on the case, proved the malicious and unfounded conduct of the defendant; audit is also de-dared, that where .a party maliciously procured a magistrate to issue an illegal warrant, he was held liable in an action on the case.- In the case of Goslien vs Wilcock, it was held that the action on the case, was sustainable against the defendant, who had instituted a civil suit, in an inferior Court against the plaintiff, and caused him to be arrested, when that Court had no jurisdiction of the cause.

If there be any reason why the responsibility should not he the same, in the case of a criminal prosecution, it is not very obvious. In c-ach case, the proseent’on must be malicious, rnd without any probable cere? ; end as rerpecis the objection, that the remedy should be trespass instead of case, it would seem to be more applicable to the case last cited, than the one under consideration.

In that, the plaintiff was the more immediate actor, than in this : there, the writ issued, as a matter of course, on his demand — here, the prosecutor was the remote cause, but the magistrate, who was required to exercise a judicial discretion, was the intermediate agent — so that the injury was only consequential, to the improper act of the prosecutor. It is not an objection to this view of the subject,that the prosecutor had the sanction of the magistrate, who was authorised to judge of the propriety of granting the warrant, and that his act constituted an excuse for the prosecutor.

The malice and want of probable cause, constitute the gist of the action, and for this, the prosecutor is liable ; as in the case of Secor vs Babcock, In that case, Secor had procured a justice of the peace to issue a warrant to apprehend Babcock, provided a certain cow, which the prosecutor made oath had been stolen from him, and which he suspected to be in the possession of the accused, should be found in Ms possession.

On the return of the warrant, the magistrate acquitted and discharged the accused.— The Supreme Court of New York held, that the action for malicious prosecution would lie against the prosecutor. I apprehend, that the rule, which requires, in case of arrest, under irregular process, that the remedy shall be by the action of trespass, applies more properly,- if not exclusively, to actions against the magistrates granting them, or other officers, acting illegally, and whose immediate act produces the arrest, or other injury complained of — as in the case of Morgan vs Hughes.

There, the supposed prosecutor, had only informed the defendant, who was a justice of the peace, that a dispute had arisen, between the plaintiff and himself, concerning particular property; and that, as a cheap and expeditious mode of decision, he wished him to investigate and determine the title. On this, alone, the magistrate granted a warrant against the plaintiff, as on a charge of felony, and caused him to be arrested. For this cause, the accused brought his action on the case, against the magistrate.

The Court- of King's Bench ruled that his remedy against the magistrate, was by the action of trespass, not case.

The distinction between these actions was there held to be this, that “ where the immediate act of imprisonment, proceeds from the defendant, the action must be by trespass, and trespass only, but where the act of imprisonment by one person, is in consequence of information from another, there, an action upon the case, is the proper remedy, because the injury is sustained in consequence of the wrongful act of that other.” The decision relied upon by the defendant in Burnett vs Black, does not apply to the main question before us.

This Court, there, only decided that the prosecutor, in action for a malicious prosecution, was not responsible for the mistake of the justice, in causing the accused to be arrested, for a different crime, from the one charged on the oath of the prosecutor. Admitting that decision to be an authority, sustaining the rejectl Gi:er^a cn it he trial of this cause; ye!,it determines nothing, as respects the sufficiency of the counts demurred to. After the views, which have already been taken, of the question presented by the demurrer, there is but one remaining inquiry.

That is, whether the charge, on which the defendant caused the plaintiff to be arrested, was of a nature proper to be made the ground of a malicious prosecution'? If the charge was of any offence, for which the plaintiff could be arrested and prosecuted, it was sufficient. For this purpose, it is immaterial whether it was the highest or lowest grade of crime or misdemean- or. Nor is it material, that the information to the magistrate, or his warrant thereon, should be in the form of technical accuracy.

The prosecutor is responsible for the information given by himself, and that only according to its substance and legal effect.

If, as is alleged in the declaration, the defendant charged the plaintiff with having feloniously altered the paper, which, in legal contemplation, could not he the subject of felony, the more aggravated character of the charge, would not protect him against liability, for attributing the less criminal motive, of a similar nature, which was necessarily embraced in the accusation, as made — by the charge, as alleged, a fraudulent alteration was, at least, imputed, A variety of circumstances may be imagined under which the alteration of a pass, given to a slave, might be made malo animo, and from which prejudice might arise to the owner, or others; also, benefit to the offender.

The same acts and motives which would constitute forgery of the more important description of instruments, may, when employed in the making or alteration of inferior instruments, amount only to misdemeanors at common law; hut the latter are no less indictable offences than the former. “The fraudulent making or alteration of a writing, to the prejudice of another man's rights,” constitutes either forgery or a misdemeanor, according to the nature of the instrument I would not be understood to intimate, that a paper of the description referred to in these proceedings, would be the subject of forgery, either according to the statute of this State, or the common law; or that if it could, by the common law, that the punishment would he other than fine, imprisonment, &c.

It is equally clear, that in respect to a great variety of instruments, even a misdemeanor, can not be committed: but I am not prepared to say, that a paper of the ■description of the one in question, might not be the subject of a misdemeanor. The character of the of-fence, of falsely making or altering such, might depend on the particular import of the paper, the intent of the act, and the effect thereby produced.

It was not necessary, however, that the charge should have assumed the legal certainty, and technical precision requisite to show an indictable of-fence, before an action of the nature of this, can be sustained; and, without deciding whether it was necessary, that such should have been the case, we think it was, at least, sufficient, that the contrary did not appear. Our code of statutes contains no repeal of the common law, in relation to misdemeanors of the nature referred to. — The State vs Cawood, et al.

From these views of the case, we decide that the judgment below must be reversed, and the cause rer manded. ¡LIPSCOMB, C. J., not sitting,. 1 chit pl. 115; 3East 593. 1 Chit. pl. 116 1 Chit. Pl. 169; 2 Chit. R. 304 2 Wils 302 2Johns.R. 203 2T.R.226 1 Stewart 494 2 Russ. on C. 352-3. Ib 317, 353 2 Stewart 360.