Opinion by
William W. Porter, J.,The first two assignments of error are to the refusal of the court to direct a verdict in favor of the defendant. The points of charge were based upon the allegation that'the complaint before the justice of the peace did not charge a crime, and that therefore the action for a malicious prosecution could not be sustained. The authorities cited by the defendant sustain the general principle, but the case of Stewart v. Thompson, 51 Pa. 158, determines the point against the defendant on the facts. There a distinction is drawn between a prosecution, founded upon a defective complaint which terminates, with attempted indictment, and one which has been pursued by the prosecutor to trial on the criminal charge. The latter course of conduct is held to sustain an action for malicious prosecution. In the present case, the defendant did not stop with a complaint. There was evidence that the plaintiff was committed on a charge of larceny at the defendant’s instance. An indictment charging larceny was found. The defendant was a witness for the *345prosecution in the trial for larceny in the quarter sessions, which resulted in a verdict of not guilty. The first two assignments of error are overruled.
The appellant assigns as error the reading by the trial judge of a part of the statement of claim in his charge to the jury. In Reese v. Hershey, 163 Pa. 253, the Supreme Court condemned the practice of reading the statement, but laid the stress of their decision upon the fact that the amount of damages claimed was read to the jury. In the present case, the amount of damages pleaded was not read. The statement was used by the trial judge to get the facts as claimed, before the jury. We do not approve this method of charging. The jury are not to pass upon what is claimed in the pleadings, but upon what is proven by the evidence. In the present case, however, we are unable to see that the reading of a part of the statement of claim inflicted any injury sufficiently substantial to warrant a reversal on this ground. The third assignment is overruled.
We are constrained to sustain the fourth assignment of error. The learned judge in discussing in his charge the measure of damages, used this language to the jury: “You can also allow such damages as you think proper for the mental pain actualty suffered by him while in the cell at Oxford. You may take into consideration the agony of his mind while he was undergoing the trial, from the commencement of the action to the end of the trial in the court of quarter sessions of Chester county, and since then.” This contains a statement of fact wholly at variance with the testimony in the' cause. At no time was the plaintiff in prison. He was taken into custody by a constable, who permitted him to procure bail, and while, by the record, he was technically committed for trial, he never was an occupant of a cell. The language used was undoubtedly an inadvertence, but the importance of it is great. The amount of the damages in a case of malicious prosecution is affected more, perhaps, by the fact of actual incarceration and loss of liberty, than by any other element. Instructing the jury that they could allow damages for the mental pain suffered by the plaintiff while in a cell at Oxford, when in point of fact, he was never in a cell at Oxford or elsewhere, opens a door to the allowance of damages wider than the law permits, and unduly increases the defendant’s burdens: Winters v. Mowrer, 163 Pa. 239. While not *346pivotal as to the main issue in the case, it is impossible to say what influence the misstatement had with the jury on the question of damages. See Steinbrunner v. Railway Co., 146 Pa. 507, 514, Phila. Co. v. Alvord, 128 Pa. 42, and Taylor v. Burrell, 7 Pa. Superior. Ct. 461, 465. The mistake is thus too serious to be passed over by shifting the error to the shoulders of counsel, who omitted to interrupt the charge and secure the correction before the retirement of the jury.
Under the facts proven in this case, we find no error shown by the remaining assignments requiring discussion or sufficiently substantial to warrant reversal.
The judgment is reversed and a new venire is awarded.
Rice, P. J. and W. D. Porter, J., dissent.