27 Mich. 539 | Mich. | 1873
Hart sued Stanton for malicious prosecution, in having him arrested for larceny, from which after much delay he was finally discharged upon a nolle prosequi, after having.; endeavored without success to obtain a trial. A recovery was had at the circuit, and the case comes up on error.
The first question presented is whether sucb an action-will lie unless the plaintiff has been acquitted on trial by a jury. ' Upon this question there is some conflict in the-authorities, but we think the weight of reason is in favor-
It is claimed, however, that the declaration counted upon an acquittal, and not upon a nolle prosequi. If this objection had been pointed out on the trial, so as. to raise a question of variance, it would have been a matter of course to allow an amendment if one had been needed. The objection raised in the circuit went only to the ground of action, and not to the conformity of proofs and allegations, and cannot be properly urged now on error, upon any new ground.
The other errors alleged relate to the exclusion of certain testimony in justification. The court refused to allow evidence that Stanton consulted with one Curry upon the1 question of the guilt of the plaintiff, and that “said Curry, who is a business man at Clio, in Genesee county, advised him to commence the prosecution.”
There is no possible ground for admitting such evidence, 'even bad it been shown that Curry knew the facts. The natural, as well as legal presumption, must be that Stanton himself knew as much about law as any other man of no special legal knowledge.— Wills v. Noyes, 12 Pick., 324.
But the court also excluded evidence of advice from one Bichard Sparks, who was a farmer with no legal training, but who had practiced for several years in pettifogging before justices of the peace, and had done some business for Stanton in that capacity. This was offered in justification, counsel declaring that he did not wish to introduce it in mitigation.
The law allows honest action upon the advice of counsel who have been fully informed on the facts, to be a
It would be very dangerous to relax the rules on this subject. There can never be any difficulty in finding professional advisers under ordinary circumstances. And where the prosecution complained of is criminal, and not civil, there is still less cause for removing any safeguard against oppression and vexatious proceedings. This rule originated in England, where there is no public prosecutor, and where all complaints must usually be made by private parties. They were compelled to employ counsel to prosecute, and it would have been unjust to compel them to do more than use proper diligence and fairness in choosing and instructing them. But under our system all prosecutions are put under official control, and a principal reason for this was the abuses of private prosecutions, which are very apt to be set on foot for private purposes rather than for the public good. It can rarely happen that in serious cases where there is any such doubt as would render it prudent to seek
The case shows that one lawyer was consulted, and his advice was held within the rule.
There is no error in the record, and the judgment must be affirmed, with costs.