^ ^ Court,
Whitow, C. J.. There can be no doubt that the judgment.in this case is erroneous and must be reversed. The affidavit which was made before the justice, by Marygold, appears to have been intended by him as the commencement of a civil suit; an action to recover damages which he had sustained in consequence of the prosecution of him by Baldwin, maliciously, and with intent to vex and trouble him.
The justice appears to have taken the same view of the case, as he issued a warrant complying in form to the Revised Statutes. (Rev. Stat, chap. 88, § 33.)
If a justice of the peace bad j urisdiction to try and determine such an action, we should think that the proceedings before Modi in, the justice who issued the warrant, were a sufficient protection for him and for all who acted in obedience to his process in good faith. But this" is not the case. By section 10, of chapter 88, of the Revised Statutes, actions of this nature are expressly excepted from those of which a justice has jurisdiction.
As the justice was totally without jurisdiction to entertain the case, we do not see how he, or the party who procured the issuing of the process, or the officer who executed it, can be protected, unless the proceedings can be sustained as the commencement of a criminal prosecution.
The judge before whom this cause was tried, considered the proceedings before the justice to be of this nature, as appears .by the bill of exceptions ; but we think that this, view of them is erroneous.
The warrant commands the officer to take the body *751of Baldwin and bring bim forthwith before the justice, “ to answer unto John Mary gold, plaintiff; in a plea of trespass for malicious prosecution, to his damage one hundred dollars or under.”
We do- not think that this can be considered a warrant in a criminal prosecution. But even if i( should be so treated, it would be difficult to sustain it, for the .reason that it describes no offence. We are not aware of any rule of the common law, which punishes criminally the offence of malicious prosecution, and we have no statute which changes the common law in this respect.
Our attention was called at the argument, to section 8, of chapter 105, of the Bevised Statutes; but upon examination we find that it punishes the offence of causing a?persona<to be proceeded against, by any pi’ocess or proceeding in law or equity,, in the name of another without his consent, or when there is no such person known. x This statute can have no application to the case before us
We are aware that courts have gone far -to pro tect judicialofficers who appear to have honestly in tended to discharge their duty, but who have failed to comply with the rules of law in proceedings had before them. {
But it is essential that in cases of this nature, the affidavit should be at least colorable; that some approach should be made towards charging a criminal offence. In this case the attempt is not made apparently, to charge any criminal offence, but a civil injury, and one which could not be the foundation of any action which the justice could entertáin. We must therefore hold that the charge of the circuit judge was incorrect, and for this reason reverse the judgment. Judgment reversed.