Morris v. Scott
21 Wend. 281
N.Y. Sup. Ct.
1839
Check Treatment

By the Court,

'Cowei? J.

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 *282of 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.