84 Va. 204 | Va. | 1887
delivered the opinion of the court.
The action of the circuit court in overruling the plaintiff’s demurrer to the defendant’s plea in abatement' to the first three counts in the declaration, and in sustaining said plea, and in dismissing the plaintiff’s action as to those counts, was clearly correct. Indeed, in this particular, it is not claimed, in the plaintiff’s petition for writ of error, that there was error.
The only assignment of error is as to the action of said cir
This, then, is the sole question for decision. And this makes the examination of said count important. After the usual preamble, this count charges that “on the 30th of November, 1885, at Richmond, Virginia, the defendant went before one Matthew F. Pleasants, a United States commissioner for the eastern district of Virginia, and then and there before said Pleasants falsely and maliciously and without any reasonable or probable cause whatsoever, charged plaintiff with having feloniously stolen and taken from out of a mail of the United States a certain registered letter received by plaintiff as postmaster at Boydton, Virginia, on or about the 25th day of July, 1883, and upon such charge the defendant falsely and maliciously and without any reasonable or probable cause whatsoever, caused and procured said Matthew F. Pleasants, United States commissioner as aforesaid, to make and grant his certain warrant under his hand for the apprehending of plaintiff and for having plaintiff before him, the said Pleasants, or some other United States commissioner, to be dealt with, according to the law of said supposed offence, and said defendant, under and by virtue of said warrant, afterwards, to-wit: December 2, 1885, at Mecklenburg county, Virginia, aforesaid, wrongfully and unjustly and without any reasonable cause whatsoever, caused plaintiff to be arrested by his body and taken into custody and to be imprisoned and brought by public conveyance from Boydton, Mecklenburg county, to Richmond, Virginia, in the custody of a deputy marshal of the United States, and before a great many people on the public highway and the streets of Richmond, and to be detained in custody a long space of time, to-wit: twelve hours then next following, and until defendant afterwards, to-wit: December 2d, 1885, at Richmond, Virginia, falsely and maliciously and without any reasonable or probable cause whatsoever, caused the plaintiff
The malicious prosecution whereon this count is predicated, is the prosecution which was set on foot by the defendant. This count alleges that that prosecution was wholly ended and determined favorably to the plaintiff. It seems in that respect to be substantially in the usual form. In Womack v. Circle, 29th Gratt., 192, the fourth count was founded on an alleged malicious prosecution of the plaintiff by the defendant. It stated in respect to the termination of the prosecution, that “the complaint was then dismissed, * * * and that the prosecution has long since been ended and determined.” And in reference to the demurrer to that count in that case, Burks, J., on p. 199, said: “The fourth count sets out a case of malicious prosecution. To be sufficient in law, such count should allege, 1st. The prosecution in its particulars. 2d. That it was set on foot, instigated, or procured by the defendant. 3d. That it had terminated favorably to the plaintiff. 4th. That it was without probable cause. 5th. That it was malicious.” Citing Scott & Boyd v. Shelor, 28 Gratt., 891.
All of these essentials are certainly contained in the fourth count here under consideration. In Womack v. Circle, supra, the plaintiff had been arrested on a charge of attempting to
That the converse of this proposition is true, and that the judgment of the justice dismissing the complaint is prima fade evidence of the want of probable cause for the prosecution, has never been doubted. In Womack v. Circle, 32 Gratt., p. 347, Staples, J., said: “If the plaintiff had been acquitted by the justice, that acquittal would have been prima facie evidence of the want of probable cause, and nothing more. All the authorities agree in so holding.” In that case, as in the case at bar, the officer had only the power to send the accused on for trial, or to discharge him from that prosecution and dismiss that complaint. But in the case under consideration, the counsel for the defendant in error appear to found their demurrer upon a supposed difference between the jurisdiction and powers of a justice and those of a commissioner of the United States, and contend that “ the object of the proceeding before the latter, is not to convict or acquit the prisoner, but to ascertain in his behalf whether there is sufficient reason to belive him guilty,
In Womack v. Circle, 32 Gratt., 324, Judge Staples in his dissenting opinion, on p. 354, (which dissenting opinion this court expressly adopted in Blanks v. Robinson, supra) said: “ The functions of the United States commissioner in committing for trial, are precisely like those of a justice of the peace.” * * * “I can see no difference in principle between the effect of the justice’s judgment and that of the commissioner in those two Virginia cases,” alluding to the two cases last above mentioned. That the learned judge’s view is correct, there can be no doubt.
We cannot, therefore, hesitate to hold that the fourth count of the declaration of the plaintiff (plaintiff in error here) sufficiently sets out a ease of malicious prosecution, and that the court below erred in sustaining the demurrer thereto. We are, therefore, of opinion to reverse the judgment of the said circuit court for that error, with costs to the plaintiff in error, and to remand the cause to said circuit court of the city of Richmond for further proceedings in conformity with the views expressed in this opinion.
Judgment reversed.