The opinion of the court was delivered by
Lowrie, J.This is an action on the case against the informer, the magistrate, and the constable, for a conspiracy in instituting and conducting a malicious prosecution. The plaintiff was non-suited on his own evidence, so that we know nothing about the case which the defendants Avould have shown. Taking the facts as presented by the plaintiff’s witnesses, we may very aycII say that there is evidence that there was ill-treatment, perhaps malicious treatment of the plaintiff by each of the parties. Rut that is not the question raised by the pleadings. It is, was there a conspiracy among them to carry on this offence ? This offence is specifically different from a mere malicious prosecution, much more dangerous in its character, and may justify much heavier damages. It is a criminal offence as well as a civil injury.
Did the defendants conspire ? There is no evidence of it. They Avere, indeed, all engaged in the transaction, but each one took his own several part allotted to him by law. Admit that the complaint was malicious, still the magistrate was bound to hear it, *161and to issue his warrant if he did not discover the malice; and the constable was bound to execute the warrant without any regard to previous questions. If the magistrate showed ignorance in his judgment, or rudeness in his demeanour, the prosecutor and constable could .not correct that. If the constable acted the ruffian in the execution of the warrant, that is simply his own fault. Each may have performed his own part badly, but the part of each was distinct, and so is their responsibility. We see no evidence of combination or joining in a malicious purpose. Even the rude treatment might possibly be negatived or accounted for, if we had the evidence on the other side.
Judgment affirmed.