80 So. 137
Ala. Ct. App.
1918
BROWN, P. J.

As to whether a prosecution before a court or officer without jurisdiction of the offense will support an action on the case for malicious prosecution, there is considerable conflict of authority. 18 R. C. L., p. 20, § 10. There is a like conflict as to whether an indictment, complaint, or affidavit that charges no offense against the law, and upon which process issues for the seizure of the person, can be made the basis of such action. The questions stated are categorically the same, for it is manifest that a complaint or indictment that charges no *564 offense Is impotent to confer jurisdiction. The conflict arises, not on a question of substantive law fixing or denying liability, but as to a question of procedure — whether the plaintiff should bring case or trespass.

[1] Where it is shown that a prosecution was prompted by malice and was without probable cause, and a “colorable cause” or a “colorable invocation of jurisdiction” is shown — and “by a colorable cause or colorable invocation of jurisdiction,” as^ applied to cases like the instant one, we understand and mean that some person apparently qualified to do so has appeared before the justice and made his complaint under oath and in writing, stating at least some fact or facts which enter into and may under some conditions or in co-operation with some Other unstated fact or facts constitute a criminal offense, or stating some fact or facts which bear some general similitude to a fact or facts designated by law as constituting an offense” (Broom v. Douglass, 175 Ala. 268, 57 South. 860, 44 L. R. A. [N. S.] 164, Ann. Cas. 1914C, 1155; Blancett v. Wimberley, 78 South. 318; Canter v. Harris, 82 South. 580), reason and the weight of authority sustain. the rule that an action on the case for malicious prosecution will lie (Rutherford v. Dyer, 146 Ala. 665, 40 South. 974; Forrest v. Collier, 20 Ala. 175, 56 Am. Dec. 190; Thompson v. Richardson, 96 Ala. 488, 11 South. 728; Ward v. Sutor, 70 Tex. 343, 8 S. W. 51, 8 Am. St. Rep. 606; Sutor v. Wood, second appeal, 76 Tex. 403, 13 S. W. 321; Goslin v. Wilcock, 2 Wils. 305; Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611; Antcliff v. June, 81 Mich. 477, 45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650; Boon v. Maul, 3 N. J. Law, 862; Newfield v. Copperman, 47 How. Prac. [N. Y.] 87; Hudson v. Cook, 2 Shower, 333; Ailstock v. Moore Lime Co., 104 Va. 565, 52 S. E. 213, 2 L. R. A. [N. S.] 1100, 113 Am. St. Rep. 1060, 7 Ann. Cas. 545; Calhoun v. Bell, 136 La. 149, 66 South. 761, Ann. Cas. 1916D, 1165; Morris v. Scott, 21 Wend. [N. Y.] 281, 34 Am. Dec. 236; Shaul v. Brown, 28 Iowa, 37, 4 Am. Rep. 151; Williams v. Vanmeter, 8 Mo. 339, 41 Am. Dec. 644; Dennis v. Ryan, 65 N. Y. 385, 22 Am. Rep. 635; McIntosh v. Wales, 21 Wyo. 397, 134 Pac. 274, Ann. Cas. 1916C, 273).

In one of the leading cases it was said:

“In a technical sense, no crime was charged ; but one was sufficiently stated to entitle the proceedings to be called a prosecution. It was deemed sufficient by the complainant and the magistrate, and would have seemed to be so, perhaps, to most men. It was hurtful to the plaintiff in the extreme. It was none the less a prosecution because defended on the law and not the facts. The defendant is estopped to deny that it was a legal prosecution, excepting so far as its illegality may affect the question of damages. The reason of the thing is so strong we do not feel it is necessary to invoke the aid of any authorities on the question.” Finn v. Frink, 84 Me. 261, 24 Atl. 851, 30 Am. St. Rep. 348.

What was said in Sheppard v. Furniss, 19 Ala. 760, is not in conflict with the views above expressed. In that case, the court said:

“There is no averment in the count that any process was issued by virtue of the affidavit, or that the plaintiff was arrested on or by virtue of any process. It is very clear that, to constitute this a good count in case, it should have averred the issuance of process, that the process should have been properly described, and that it should have further averred that the plaintiff was arrested and imprisoned by virtue thereof.”

[2] The rulings of the court on the demurrers to the complaint and the defendant’s objection to the admission of the affidavit and warrant in evidence was free from error. Rutherford v. Dyer, supra. This case can be clearly differentiated from the case of Chambliss v. Blau, 127 Ala. 88, 28 South. 602. In the case at hand the defendant made an affidavit charging the plaintiff with the offense denounced by section 1 of the act approved August 31, 1915 (Acts 1915, p. 319), and procured the issuance of a warrant thereon. While the evidence shows that there were no funds on deposit to plaintiff’s credit at the bank on which the check made the basis of the prosecution was drawn, the evidence is in conflict as to whether this was known to the defendant at the time the check was given and as to whether the defendant procured the check to be given and postdated with the knowledge that the plaintiff was without funds on deposit to pay the check, and there was some evidence tending to show that the prosecution was prompted by malice and was without probable cause. Defendant was therefore not entitled to the affirmative charge.

[3] The charge made the basis of the fourth assignment of error ignores the evidence offered by plaintiff that the check was given and postdated at the instance of the defendant, with the knowledge on the part of the defendant that there were not sufficient funds in the bank to authorize the bank to pay the check.

[4, 5] The charge made the basis of the fifth assignment of error was properly refused as misleading. The defendant’s theory of the case was that he accepted the check in good faith in payment of a debt, without knowledge that the plaintiff did not have funds in the bank to pay the check, while that of the plaintiff was that the check was given at the instance of the defendant and postdated with full knowledge of the fact that plaintiff did not have money to his *565 credit to pay it, and the subsequent conduct of the plaintiff was not relevant to the issues in the case. There was some evidence tending to show that the purpose of the prosecution was to collect a debt, and, if that is true, the prosecution was an abuse of criminal process, and justified the comment embodied in the oral charge of the court.

■ [6] The fact that the defendant acted on advice of the magistrate in instituting the prosecution, ¿lthough the magistrate was a lawyer, does not constitute a valid defense. Mark & Co. v. Hastings, 101 Ala. 165, 13 South. 297; Finn v. Frink, supra.

There is no error in the record.

Affirmed.