Jones v. Finch

• Decision Date: 17 November 1887
• Citation: 84 Va. 204,4 S.E. 342
• Parties: Jones v. Finch.
• Court: Virginia Supreme Court

4 S.E. 342

84 Va. 204

Jones

v.Finch.

Supreme Court of Appeals of Virginia.

November 17, 1887.

Mauoious Prosecution—Probable Cause—Acquittal before United States Commissioner.

In an action for malicious prosecution, the fourth count in plaintiff's declaration was in the usual form, and showed that he had been arrested on a warrant procured by defendant from a United States commissioner, and, on examination before the commissioner, was acquitted. Held, that the acquittal before the commissioner was prima facie evidence of want of probable cause, and a demurrer to the count should have been overruled¹

Error to circuit court of city of Richmond; B. R. Wkllford, Jr., Judge.

Action of trespass on the case, brought by James K. Jones against Charles L. Finch. The declaration contains four counts, —the first and second, for an alleged slander; the third, for an alleged libel; and the fourth, for malicious prosecution. The court below sustained a plea in abatement as to the first three counts, and a demurrer as to the fourth count, and dismissed the action. Plaintiff below obtained a writ of error and supersedeas.

J. S. Wise, for plaintiff in error. W. W. Henry, for defendant in error.

Richardson, J. This is a writ of error to a judgment of the circuit court of the city of Richmond, rendered June 28, 1886, in an action of trespass on the case, wherein the plaintiff in error was plaintiff, and the defendant in error was defendant. The action was brought December 3, li^85. The declaration contained four counts. The first two counts are for an alleged slander; the third is for an alleged libel; the fourth is for an alleged malicious prosecution. The first three counts are for matters alleged to have taken place in the county of Meckleuburg, in this state, where both parties resided. Said fourth count is for a matter alleged to have occurred at the said city of Richmond. Process to answer the action was duly served on the defendant in the city of Richmond. To the first three counts in the declaration a plea in abatement to the jurisdiction was filed; and the defendant also demurred to the whole declaration, and to each count thereof; and to the fourth count he filed a special plea, setting forth that the plaintiff had not been discharged and acquitted of the prosecution in said fourth count set forth. the plaintiff demurred to both of the defendant's pleas; to the second, he replied generally. The circuit court overruled the demurrer to the whole declaration, and also as to the first three counts, but sustained the demurrer as to the said fourth count, and dismissed the suit as to said fourth count; and then proceeding to consider the plea in abatement as to the first three counts of the

. declaration, and the demurrer to said plea, and the motion of the defendant to dismiss the suit as to the first three counts, the court overruled the demurrer to said plea, and sustained the plea, and ordered the suit to be dismissed. To this judgment of the circuit court the plaintiff applied for and obtained from one of the judges of this court a writ of error and supersedeas.

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 these 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 circuit court in sustaining the demurrer to the fourth count in the declaration, and in dismissing the plaintiff's action as to said fourth count. 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 thirtieth of November, 1885, at Richmond, Virginia, the defendant went before one Mathew F. Pleasants, a United States commissioner tor the Eastern district of Virginia, and then and th(!re, before said Pleasants, falsely and maliciously, and witheut 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 the plaintiff as postmaster at Boydton, Virginia, on or about the twenty-fifth 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 Mathew P. 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 offense; 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 2, 1885, at Richmond, Virginia, falsely and maliciously, and without any reasonable or probable cause whatsoever, caused the plaintiff to be carried in custody before said M. P. Pleasants, so being United States commissioner as aforesaid, to be examined before said commissioner of and concerning said supposed crime; which said commissioner, having heard and considered all that said defendant could say or allege against the plaintiff...