Gibbs v. Ames

119 Mass. 60 | Mass. | 1875

Wells, J.

The female plaintiff was brought before a trial justice upon a criminal charge. She was required to plead to the complaint, to answer further thereto at a subsequent day, and to give surety in $6000 for her appearance for that purpose. In default of bail she was committed by order of the magistrate, and a mittimus therefor in due form was issued. Upon the day fixed for the trial she was discharged, the magistrate finding and1 adjudging her to be “ not guilty of said charge.” All this appears from the records of the trial justice.

This was a sufficient prosecution and acquittal therefrom to furnish a foundation for the common action for malicious prosecution, notwithstanding any insufficiency of the complaint, or defect of process by which she was brought before the court, or want of jurisdiction of the magistrate arising from such defect. 2 Greenl. Ev. §§ 449, 452, and cases cited. 1 Am. Lead. Cas. (4th ed.) 215, 216, notes to Munns v. Dupont. O'Brien v. Barry, 106 Mass. 300, 304. Cardival v. Smith, 109 Mass. 158. The magistrate had jurisdiction of the subject matter of the complaint, which was not the case in Bixby v. Brundige, 2 Gray, 129, and Whiting v. Johnson, 6 Gray, 246.

Ordinarily the preferring of a complaint, if done maliciously and without probable cause, would be sufficient to charge the complainant with liability for the prosecution to which it gave rise; because that is its natural and legitimate sequence, and its presumed purpose. But the form of this complaint is such that, as it prayed for process only against the other person named as an offender, some other evidence was rightly required to charge the defendant with an intention to prosecute the female plaintiff. The instructions required the jury to find that the defendant intended to cause, and participated in, her subsequent arrest. That fact, being found, involves him in responsibility for the subsequent proceedings as its natural and ordinary sequence, just as much as if there had been a proper complaint and warrant to justify the arrest, as he asserted in his affidavit that there were. 2 Greenl. Ev. § 450. Judgment on the verdict.