Cooper v. Armour

• Decision Date: 17 April 1890
• Citation: 42 F. 215
• Parties: COOPER v. ARMOUR et al.
• Court: U.S. District Court — Northern District of New York

42 F. 215

COOPER v. ARMOUR et al.

United States Circuit Court, N.D. New York.

April 17, 1890

Ward &amp Cameron, for plaintiff.

Stedman Thompson & Andrews, for defendants.

WALLACE J.

The question in this case is whether an action for malicious prosecution will lie against defendants, who have preferred an accusation before a magistrate charging the plaintiff with a criminal offense, notwithstanding the plaintiff was not apprehended, and no process for his arrest was issued by the magistrate. The gist of the action of malicious prosecution is the putting of legal process in force, regularly, for the mere purpose of vexation or injury; and the inconvenience or harm resulting naturally or directly from the suit or prosecution is the legal damage upon which it is founded. Some of the text-writers state that the action will lie whenever the defendant has made a charge of felony against the plaintiff with a view to induce a magistrate or tribunal to entertain it, whether any warrant or other process was issued or not. Steph. Mal. Pros. 8; Add Torts, Sec. 856. Actions have been maintained in the nature of a conspiracy for procuring a false indictment, and even for preferring a false charge of crime upon which the grand jury refused to indict. But the only decisions cited in support of the proposition that the action of malicious prosecution will lie although a criminal proceeding has not actually been instituted by the issuing of process, where the point actually arose, are in the nisi prius case of Clarke v. Postan, 6 Car. & P. 423, and in the case of Dawson v. Vansandau, 11 Wkly.Rep. 516, in which although no process was issued, the plaintiff was taken into custody, and held for examination upon the charge. On the other hand, it was said by PATTESON, J., in Gregory v. Derby, 8 Car. & P. 749, where there was a charge of stealing, upon which a warrant was issued against the plaintiff, that, 'if the party was never apprehended, no action at all would lie;' and in O'Driscoll v. McBurney, 2 Nott & McC. 54, 55, it was said: 'There can be no prosecution without an arrest. ' The only injury sustained by the person accused, when he is not taken into custody, and no process has been issued against him, is to his reputation; and for such an injury the action of libel or slander is the appropriate remedy, and would seem to be the only remedy. This is the view adopted by Hare & Wallace in their notes to American Leading Cases, (volume 1, p. 173;) and the learned commentators state that slander or libel is the only appropriate remedy where a charge of felony has been made, and warrant was not thereupon issued, and that malicious prosecution, and not slander or libel, is the remedy whenever a warrant has been issued. The question was fully considered by the supreme court of South Carolina in Heyward v. Cuthbert, 4 McCord, 354,-- whether an action for malicious prosecution would lie, founded on a criminal charge upon which no process was issued against the accused; and it was adjudged that it would not. In that case the charge was in the form of an information laid before the magistrate to procure a warrant for the arrest of the plaintiff. To the same effect is the case of Kneeland v. Spitzka, 42 N.Y.Super.Ct. 470, where the question was decided in an appellate court. In the early case of Ram v. Lamley, Hut, 113, it was held that an action of slander could not be...