delivered the opinion of the Court:
The declaration in this case contains seven counts. Five are in trespass, and charge an assault and unlawful imprisonment, and the sixth and seven counts are for a malicious prosecution.
The court below sustained a demurrer to three special pleas to the counts in trespass, and this is assigned for error.
The matter of defense set up in the pleas was, in substance, that on a complaint, made by the defendant before a justice of the peace, of the commission of a forgery by the plaintiff, a warrant issued upon which plaintiff was arrested and brought before the justice, and, on examination, was required to give bail for his appearance at the next term of the circuit court, and in default of giving the bail, plaintiff was committed to jail by the justice of the peace, which was the trespass and imprisonment complained of. The pleas show that plaintiff was arrested and imprisoned upon regular legal process. Trespass will not lie for an act done under a legal process regularly issued from a court, or by an officer of competent jurisdiction. Case only will lie, and that on the ground only of malice and want of probable cause. 1 Chit. Pl. 214, 152; Belk v. Broadbent, 3 Term Rep. 183; Luddington v. Peck, 2 Conn. 700; Plummer v. Dennett, 6 Greenl. 421.
We do not see that the statute abolishing the distinction between the actions of trespass and trespass on the case changes the rule, as is contended by appellee. The statute does away with the technical distinction between the two forms of action, but does not affect the substantial rights and liabilities of parties, so as to operate to give any other remedy for acts done 'under legal process issuing from a court or officer of competent jurisdiction than before existed, an action on the ground of malice and want of probable cause.
We are of opinion the pleas presented a sufficient answer to the counts in trespass, especially the second plea, which averred that there were reasonable grounds to believe that plaintiff had committed the offense, and that the court erred in sustaining the demurrers.
Another objection taken is, to the exclusion of testimony by the court below. The cause of action was the procuring of the arrest and imprisonment of the plaintiff on the charge of forgery of a note against the defendant for $360.
There was no dispute that the note bore the genuine signature of the defendant. Defendant’s claim by his testimony was, that it was fraudulently obtained from him by some device.
He testified that the transaction he had with plaintiff, at which the pretended note was obtained, was one of appointing him agent of certain territory for the sale of Ingall’s seeder and cultivator; that to required papers for constituting the agency, defendant signed his name four times; that he did not sign any note knowingly; that he never intended to do so; that there was no talk about a note, and that he only supposed he signed the necessary papers for the assuming of the agency. Plaintiff’s testimony was in contradiction; that defendant signed the note as a note, and that understandingly. They were the only witnesses to the transaction.
Defendant offered to prove, by several witnesses, that at about the same time with defendant’s transaction, and in the same neighborhood, they had the same kind of transactions with the plaintiff, and which resulted in their pretended notes having been fraudulently obtained from them in the same Avay by the plaintiff. The court excluded the testimony. There had been testimony in regard to blanks—defendant describing those in plaintiff’s possession, and that were used. A witness was introduced, and testified that the employer of plaintiff had certain blanks printed at his office, such as were produced, from which the inference might be that plaintiff had none such as defendant described; and plaintiff testified he had no such blanks as could be used in the manner defendant’s testimony went to show the blank signed by him was used by plaintiff. The excluded testimony, whs to show also that plaintiff practiced upon the witnesses by the use of blanks in his possession.
"We think this excluded testimony should have been admitted. This _evidence of the fraudulent obtention, by plaintiff from other persons, of notes by means of the same device, in the same neighborhood, near the same time, and while engaged in the same employment, would appear to be admissible to characterize the employment of the plaintiff, and would illustrate the manner in which the alleged fraud upon the defendant might have been accomplished—the feasibility of it—and would tend to corroborate the testimony of the defendant.
"Under the counts for malicious prosecution, objection is made that the alleged malicious prosecution was not shown to have been legally determined, as was necessary. The prosecution was a complaint, before a justice of the peace, for forgery, upon which an indictment had been found by the grand jury. One conviction was had, which was reversed by this court, and the cause remanded for further proceedings.
The cause was re-docketed in the circuit court at the July term, 1872, and the defendant entered into recognizance for his appearance at the next term. The only entry of record made in the case afterward, is, that the cause, by the order of the court, is stricken from the docket, with leave to reinstate it. That did not discharge the defendant from the indictment. The order of the court, directing the cause to be removed from the docket, with leave to reinstate, justified the clerk in omitting it from the docket of cases for trial. The indictment, however, remained undisposed of; the cause might be again placed upon the docket, and the defendant subjected to a" trial upon the same indictment. This court, in Tibbs v. Allen, 1 Seam. 547, remarked upon this subject, as follows: “In those (criminal) cases, a practice has long obtained in this State, now near half a century, after ineffectual attempts to arrest a defendant in an indictment, to remove, on motion of the State’s attorney, the cause from the docket, with leave to reinstate it on his own suggestion at any future time. It is all one motion—to remove, subject to be reinstated—thereby excluding the conclusion that the case is at an end, but implying that it is still subject to the action of the court.”
We are of opinion that there was no legal determination of the criminal prosecution shown.
The judgment must be reversed and the cause remanded.
Judgment reversed.