The warrant upon which the plaintiff was arrested is as follows:
"Whereas information hath this day been made to me L.C. Hooper, one of the acting justices of the peace for the said County on the oath of Isaac Holden, that he has reason to believe, and does believe, that Alexander Zachary (and three others, naming them) did shoot an ox of Elisha Holden's on c., at c., against the peace and dignity of the State.
You are, therefore, commanded, in the name of the State, to arrest the said Alexander Zachary, c."
Upon this warrant the plaintiff was brought before an examining magistrate; the facts disclosed, as the warrant had charged, but a civil trespass. The defendant (the present plaintiff) was discharged by the magistrate with costs.
The plaintiff offered testimony to show malice and a want of probable cause, but his Honor being of opinion that the action was misconceived, that it should have been trespass and not case, the plaintiff submitted to a non-suit and appealed. Allen v. Greenlee, 2 Dev. 370, is a direct authority in support of the decision made in the Court below.
The same principle is applied to a converse state of facts, Rodgers v.Pitman, 2 Jones 56. The two cases settle the rule to be, that where process is valid and sued out maliciously, the proper action is case; where the process is void, as for *Page 454 want of jurisdiction, the proper action is trespass vi et armis or trover.
PER CURIAM. Judgment affirmed.