This was an action, for false imprisonment, tried before me at the Dutchess Circuit. The plaintiff, was arrested on a warrant issued by the defendant, who was a justice of the peace, and, although objecting to the jurisdiction, was tried, convicted and sentenced by a Court of Special Sessions, held by the defendant, to a fine, and to be imprisoned until it was paid. He was released upon habeas corpus, and subsequently brought this action.
The warrant of arrest and the commitment recited the offense tó be, that the prisoner, the present plaintiff, “ did willfully and maliciously unhook the traces of the harness on a span of horses and then hitched to the wagon then owned or in the possession of” one Luddington.
At the trial of this action, the imprisonment was defended on the ground that, by the evidence before the magistrate, *191Luddington was shown to have been in the wagon at the time, and it was contended that the plaintiff had therefore committed an assault, an offense of which a Court of Special Sessions, pf course, has jurisdiction. But neither the warrant nor the record of conviction or commitment, specify any such offense as an assault, nor do they state sufficient'facts to constitute an assault. The offense for which the plaintiff was tried and convicted was maliciously unhooking the traces from horses, when harnessed to the complainant’s wagon. If Luddington, the owner, was in the wagon at the time, the act of the plaintiff was an assault upon him; or if some one else was there, then upon such other person. But no such person was specified, and no such offense was charged in the warrant or .commitment; and the plaintiff may have committed the act charged in the warrant and commitment, and still have committed no assault. He could not, however, be arrested, tried and convicted for an act which, if it were an offense, was one of which the court had no jurisdiction, and his imprisonment afterward justified by showing that the evidence at the trial would have convicted him of another offense which was triable in a Court of Special Sessions.
Assuming that a Court of Special Sessions has no jurisdiction to try a man for malicious mischief, or for the act charged in these proceedings, if it were a criminal offense, we are all clearly of opinion that this was a case of false imprisonment ; and that evidence of what took place on the trial in the Sessions, tending to make out an assault, was irrelevant, and that it was properly struck out of the case, and excluded from the consideration of the jury. We do not think it necessary to discuss the proposition which was advanced, that inasmuch as the defendant could have arrested the plaintiff and held him to bail for committing an act of malicious mischief, he can therefore justify proceeding to a trial which resulted.in a conviction and sentence. We are also of opinion that the evidence which was objected to upon the question of damages, was properly received. The utmost which this objection in volves, would be an amendment of the complaint.
*192These embrace all the questions raised at the trial or on the argument One of the members of the court, however, has entertained doubts whether Courts of Special Sessions are not authorized to try cases of malicious mischief under the existing statute (2 R. S., 711, § 1; 2 R. S., 5th ed., 1001), and I have, therefore, considered that question. The fifth subdivision of this section of the statute gives to the Special Sessions jurisdiction to try “ charges for committing any willful trespass, or for severing any produce or article from the freehold, not amounting to grand larceny.” I am unable, after careful consideration, to agree to a construction,, of this statute which would bring the act charged in the proceedings against the plaintiff within its provisions, for various reasons which seem to me sufficient.
The offense of malicious mischief has been recognized in this State as a misdemeanor at common law, although the multiplicity of the statutes to punish such offenses in England has led to the impression that the offense is created by statute^ The language used by Blackstone (4 Black. Com., 243), in the passage cited by the defendant’s counsel, to prove that malicious mischief is an offense at common law, would perhaps lead to that conclusion. But the line which separates a mere trespass from a criminal act, has been by no means clearly defined. In The People v. Smith (5 Cow. R., 258), an indictment for maliciously killing a cow was sustained. In Loomis v. Edgerton (19 Wend. R., 419), maliciously breaking to pieces a sleigh was held to be a criminal offense. On the other hand, in Kilpatrick v. The People (5 Denio R., 277), maliciously breaking two windows in the house of another person, was held not to be a criminal offense. In the latter case stress was laid upon the fact that the act complained of was not committed secretly, nor in the night time, and was not an act of cruelty to a domestic animal. In England, as has been already intimated, the limits of this class of offenses, and their punishment, are defined by numerous statutes, so that but few, if any, cases can be found which were decided by the common law. The statutes of Great Britain make many trespasses *193criminal offenses, which, without them, would be only wrongful acts, to be redressed by damages in a civil action. So there are various statutes with us making certain trespasses punishable criminally. But it is obvious that every trespass is not a criminal offense, although every trespass is in the eye of the law “ willful,” and even “ malicious.” Judge Beardsley, in Kilpatrick v. The People, says, very justly and pointedly, •that malice is an ingredient in every intentional wrong, but that even a malicious intent to do an act of injury, without hope or expectation of profit to the wrongdoer, will not make the act indictable. It is quite clear, I think, that there is no such criminal offense at common law as a “ willful trespass.” Every wrongful act to the person, or personal or real property of another, is a willful trespass, and this, as a generic term, will include all crimes to. the person, and some offenses against property. But the term" defines a class of wrongful acts merely, and not of crimes. It is not the same as “ malicious mischief,” which describes acts criminal at common law. On the ■contrary, the two classes of wrongs are plainly and broadly distinguishable. In the clause of the statute now in question, the phrase, willful trespass, does not, therefore, describe any crime, except as such an act is made such by statute. There , are certain willful trespasses which are indictable and punishable, and the present statute refers to these only.
The context and connection of the words in the statute are also sufficient, to my mind, to show that the trespasses referred to are acts of trespass upon lands. The statute confers jurisdiction upon Courts of Special Sessions to try various specified acts of wrong to persons and property, which are crimes by common law. and by statute, and which would be included within willful trespasses, if that term should.be construed in its ordinary or full legal sense. In the clause in question, the word trespass is directly connected with the freehold, in such a way as to show that the meaning of the whole clause is, any willful trespass upon the freehold, or any severance of property therefrom, which is not a larceny. This is to me the *194obvious, and, I believe, has been the universal construction of this part of the statute.
The statute was intended to refer to certain trespasses which are made misdemeanors by the statute of misdemeanors. (2 R. S., 693, § 15.) The language of the latter statute is identical with that before us, describing the offenses referred to as willful trespasses, and all the trespasses which the statute of misdemeanors makes criminal, are trespasses upon real estate. It is these willful trespasses, made criminal by positive statute., which are triable in Courts of Special Sessions, and not a totally different class of acts which might be described as acts of malicious mischief, and which are only criminal when they come within the cases or the definition of acts of malicious mischief, and are thus more than merely willful trespasses.
If, therefore, the act described in this commitment, were an act of malicious mischief at common law,, it would not be included within the provisions of this statute, or the jurisdiction which it confers upon Courts of Special Sessions.
But I must add that it is very clear to me that the act specified by the proceedings was not an act punishable criminally as a malicious mischief. Even if it had been committed while •the owner of the horses, or any other person was in the wagon, it could hardly have been construed a malicious mischief, because no harm appears to have ensued. It is not alleged that any injury was done to the horses or the wagon, the whole charge being that the harness of the horses was maliciously unhooked. The essence of the crime of malicious mischief, is the injury to property, and this must be marked by some peculiar features to convert it from a trespass into a crime. An act which, however wanton and dangerous, is not, and does not result in the destruction, or even the injury of property, is not an act of malicious mischief or a misdemeanor, under this head of the law.
I am of opinion that the warrant of arrest, and the commitment, recited no offense whatever, and that if any were' committed, taking all the facts proved, or alleged to have been proved at the trial before the magistrate, it was a constructive *195assault upon the person in the wagon at the time, which was not the offense for which the plaintiff was tried or convicted, and cannot, therefore, justify his imprisonment.
The plaintiff is entitled to judgment upon this verdict, in my opinion, beyond any question.
Judgment for plaintiff.