Stanton v. Hart

• Decision Date: 25 July 1873
• Citation: 27 Mich. 539
• Court: Michigan Supreme Court
• Parties: Oscar F. Stanton v. Michael Hart

27 Mich. 539

Oscar F. Stanton v. Michael Hart

Supreme Court of Michigan

July 25, 1873

Heard July 22, 1873; July 23, 1873.

Error to Saginaw Circuit.

Judgment affirmed, with costs.

Wisner & Draper, for plaintiff in error.

Frederick L. Eaton and Albert Trask, for defendant in error.

OPINION

Campbell J.

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 such 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 of the action. The mischief is done by the arrest and disgrace caused by a charge of crime, and by the expense and annoyance attending the proceeding. A discharge without a trial does not destroy the effect of the mischief, but often aggravates it by leaving the party injured without the complete vindication of a verdict in his favor. As long as the proceedings are pending, it may be considered that there may possibly be a conviction under them, which would justify the accusation. But as soon as the proceedings have come to an end, by such an order or discontinuance as will prevent a further prosecution without a new complaint, there is no longer occasion for any such presumption. It is more reasonable to assume it has been found that the charge ought not to be further pressed. And it would be doing great injustice to refuse a remedy for such a wanton injury to liberty and reputation, on a ground which is purely technical, and is not reasonable. The doctrine is very well explained in Clark v. Cleveland, 6 Hill 344, as allowing an action whenever the particular proceeding has come to an end, so that the prisoner can be no further pursued upon it. Discharge by a magistrate, discontinuance of a private action, and ignoring bills by grand juries, when the party is discharged, have all been made the basis of an action for malicious prosecution.--Smith v. Ege, 52 Pa. 419; 1 Am., Lead. Ca., 221; Straus v. Young, 36 Md. 246; Burhans v. Sanford, 19 Wend. 417; Fay v. O'Neill, 36 N.Y. 11. We think the action was not premature.

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.

We think the declaration, although it uses the phrase, "acquitted and discharged," shows beyond mistake that no reference was had to an acquittal on a trial. The language is, that the prosecutor "neglected to bring the same on to a hearing or trial, and the said plaintiff, being innocent of said supposed offense, was then and there duly discharged out of said custody, and fully acquitted and discharged of the said supposed offense; and the said defendant hath not further prosecuted his said complaint, but hath deserted and abandoned the same, and the said complaint and prosecution is wholly ended and determined." These allegations are preceded by statements of the delays to which plaintiff had been put by defendant in trying to have the complaint brought to trial. If the word "acquitted" has a technical meaning when unexplained, it is impossible to read the declaration as conveying that meaning, and it can only be made sensible by taking the whole clause together.

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