1. MALICIOUS presecution : mistake : liability of complainant. From the testimony of Wm. Perkins, the justice of the peace before whom the proceedings in question occurred, it appears that the defendant did not in fact sign or file any information. He simply stated and swore to the facts, and the justice entered them upon his docket. The docket of the justice was introduced in evidence, and so far as pertains to this case, is as follows: “On this 5th day of August, 1880, information be*449ing laid before me under oath by ¥m. Davis, against the defendant, accusing him of the crimp of using abusive language, such as £ you are a liar and a thief,’ whereupon I issued a warrant for the arrest of defendant, and delivered it to ¥m. Brown for service. * * * * Warrant returned as follows: Served the within warrant by reading it to him and bringing the defendant into court. August 9th, 1880, defendant gave a bond to appear the 14th day of August, 1880, at one o’clock, Norwood School-house, in District No. 5, in Linn township. The plaintiff withdraws the suit.”
The defendant, in his statement to the justice, did not charge upon the plaintiff the commission of any specific offense, nor do the facts stated impute any crime. The appellee insists that for this reason the court properly struck out the evidence and directed the jury to find for the defendant. The plaintiff relied upon Shaul v. Brown, 28 Iowa, 37. In that case, however, a distinct offense, namely, the crime of larceny was charged. If there was any defect in the information it was in that the facts stated, as constituting the crime, did not amount to the crime of larceny. In this respect, that case differs from the case at bar, and differs from McNeely v. Driskill, 2 Blackf., 259; and Farlie v. Danks, 30 Eng. L. and Eq., 119, which it cites and distinguishes.
It is clear from the petition that the gravamen of the plaintiff’s cause of action is the Avickedly and maliciously instituting a prosecution against the plaintiff charging him with the commission of a crime. The case of McNeely v. Driskill, 2 Blackf., 259, is in its material facts exactly like the present, and the decision is directly in point. In that case it is said: “ If a justice of the }Deace, by mistake of judgment, conceives an act to be a felony which is not a felony, and in consequence of that mistake, causes an innocent person to be arrested and imprisoned, the laAV will not hold the person avIio made the complaint responsible in this form of action, for the consequences of such errors.” Leigh v. Webb, 3 Esp. Rep., 165, announces the same doctrine. In *450our opinion the court did not err in striking out the evidence and directing a verdict for the defendant.
Affirmed.