Sweet v. Negus

• Decision Date: 27 October 1874
• Citation: 30 Mich. 406
• Court: Michigan Supreme Court
• Parties: Clark Sweet and another v. Henry Negus

30 Mich. 406

Clark Sweet and another v. Henry Negus

Supreme Court of Michigan

October 27, 1874

Submitted on Briefs October 9, 1874.

Error to Jackson Circuit.

Judgment affirmed, with costs.

Conely & Sharp, for plaintiffs in error.

George C. Worth and Lewis M. Powell, for defendant in error.

OPINION

Christiancy J.:

Negus defendant in error, brought his action against the plaintiff in error, in the Jackson circuit, for a malicious prosecution.

The complaint on which he was prosecuted, and upon which the warrant for his arrest was issued, was made by Jasper Sweet one of the plaintiffs in error, signed and sworn to by him, charged that "Henry Negus did, on the 25th of April, 1873, at the township of Leoni, in said county, threaten to kill the cow of this complainant; and that from the above, and other threats used by the said Henry Negus, he, the complainant, is afraid that the said Henry Negus will kill the cow of the complainant, or do some injury to his person or his property; and, therefore, prays that said Henry Negus may be required to find sufficient sureties to keep the peace towards him, this complainant; and the said Jasper Sweet also says he does not make this complaint against, nor require such sureties from said Henry Negus, from any malice or ill-will, but merely for the preservation of his property and person from injury." The warrant issued upon this complaint by the justice, before whom it was made, recites that, "whereas, Jasper Sweet has this day made complaint to me in writing, and on oath, that Henry Negus did, on the 25th April, 1873, at the town of Leoni, in said county, threaten to kill the cow of this complainant" [and then reciting the rest of the complaint in substance]; "and, whereas, it appears to me from the examination of the said Jasper Sweet, duly made on oath, and reduced to writing by me, that there is just reason to fear the commission of the said offense by the said Henry Negus, therefore," etc., in the usual form, commanding the arrest of Negus, to be brought before him to be dealt with according to law.

Negus was arrested on this warrant, brought before the justice, gave bail for his appearance for examination at a future day, and on the adjourned day demanded a trial before a jury, which was granted, and he was so tried.

The jury found Negus (the defendant in the complaint) not guilty, and further found that the complaint and accusation were groundless; and the complainant was thereupon ordered by the justice to pay the costs of the proceedings.

In addition to the other facts proved on the trial of this cause in the circuit, the plaintiff introduced evidence tending to show malice and want of probable cause.

But it appeared expressly by the testimony of the justice before whom the complaint was made, "that he did not make any examination of the complainant on oath, except to swear him to the complaint." And the only questions raised by the assignments of error are based upon this neglect of the justice.

It is insisted, first, that as the justice did not, after or even before, complainant had made his formal complaint in writing and on oath, examine the complainant on oath and reduce the examination to writing, he had no right to issue the warrant, and that the proceeding (the prosecution against defendant in error) was without jurisdiction and void; and hence, secondly, that the plaintiff below could not maintain this action...