
    R. W. Hubbard v. George Lord.
    (Case No. 4740.)
    1. Venue — Statute construed.— The eighth exception to art. 1198, Revised Statutes, provides that when the foundation of the suit is some crime, offense or trespass for which a civil action in damages will lie, suit may be brought in the county where such crime, offense or trespass was committed. Held,
    
    (1) A plaintiff cannot bring suit for damages on account of a malicious prosecution in the county wherein he was arrested, when the prosecution was b 'gun in another county, and where the defendant resided, the proceedings attending the prosecution being regular.
    (2) When a prosecution is begun at the instance of an individual, the initial step is the affidavit upon which the wan ant for arrest issues. Hence, in a suit for malicious prosecution, the “ offense,” in contemplation of the eighth exception to art. 1198, Revised Statutes, is not the arrest, but the making of the affidavit, and causing the warrant to issue. The counoy in which this is done determines jurisdiction.
    (3) Under a warrant legally issued an officer can commit no trespass by executing it according to its command; if it be illegal, or issued without authority of law, he becomes a trespasser when executing it.
    Appeal from Wilson. Tried below before the Hon. Everett Lewis.
    Appellant, who resided in Wilson county, sued in Wilson county the appellee, who resided in De Witt county, for a malicious prosecution, claiming $10,000 damages, and alleging in substance that the defendant made three complaints in writing before the county at-' torney of De Witt county, charging plaintiff and others with theft of cattle in Gonzales county, and causing a warrant to be issued by a .justice of the peace of De Witt, by virtue of which plaintiff was arrested at his home in Wilson county, and placed under bond to appear before the county judge of Gonzales county. Exceptions to the jurisdiction of the court were-sustained.
    
      A. E. Walkins and Lawhorn & Browne, for appellant.
    No briefs for appellee on file.
   Willie, Chief Justice.—

The only question in this case arises upon the ruling below sustaining the appellee’s special exception to the jurisdiction of the court. It appeared from the face of the petition that Lord was a citizen of De Witt county; that the prosecution against appellant for theft was instituted there, but that the arrest under the charge occurred in Wilson county, where this suit was commenced.

It is urged that the cáse comes within the eighth exception to art. 1198 of the Revised Statutes. That exception provides that when the foundation of the suit is some crime or offense or trespass, for which a civil action in damages may .lie, suit may be brought in the county where such crime, offense or trespass was committed.

By art. 273 of our Criminal Code, it is made an offense to institute a criminal prosecution against any person for the purpose of vexing, harassing or injuring him. The offense consists in instituting the prosecution, or causing it to be instituted. In this case, the criminal prosecution was commenced or instituted by making the affidavits before the district attorney, and having the process issued by a justice of the peace, all of which was done in De Witt county. The arrest in Wilson county was not the institution of the prosecution, and hence the offense was not committed by making it, but was complete when the preliminary steps, including the issuance of the warrant, had been taken.

By art. 225 of the Code of Criminal Procedure, it is provided that in all cases except those enumerated in previous articles of chapter 2, the proper county for / the prosecution of an offense is that in which it was committed. Malicious prosecution is not mentioned in any of those articles as one of the offenses excepted from this general rule. The proceedings constituting the offense having been instituted in De Witt county, the county of Wilson could not derive jurisdiction by reason of the subsequent arrest of appellant in that county, unless that act in itself was a trespass for which a civil action in damages would lie.

The distinction between an arrest by an officer under a warrant legally issued and coming to his hands in a lawful manner, and one made without warrant or under process from a court having no authority to issue it, is clearly drawn. Under the former he can commit no trespass by executing it according to its command. If he ' arrests the person he is ordered by it to arrest, he is fully protected, and no action for trespass lies against him for this discharge of his duty. Blalock v. Randall, 76 Ill, 224; Rhodes v. King, 52 Ala., 272; West v. Smallwood, 3 M. & W., 418; Von Latham v. Libby, 38 Barb., 339. If, on the contrary, he seizes the person of another without warrant, or with one palpably illegal, or issued without the authority of law, he commits a trespass for which he and his abettors are liable in damages. Yates v. Lansing, 9 Johns., 395; Bun-ham v. Sterns, 33 N. H., 247; Wills v. Whittier, 45 Me., 544.

Hence the distinction at common law between the action for false imprisonment and that for malicious prosecution. The former was a suit for trespass and the latter an action upon the case. See Blalock v. Randall, supra.

The first could be maintained only when the arrest was made without legal process; and the hitter when the process of the law had been perverted and improperly used without probable cause and for a malicious purpose. Conpol v. Ward, 106 Mass., 289; Johnson v. Maxon, 23 Mich., 129; Waterman on Trespass, § 293. The injured party could recover damages for the wrong done him, but he must proceed in a different way against different parties, and make different allegations in the .one case from what he did in the other.

In malicious prosecution the offi cer issuing the process, or making the arrest under it, incurred no liability; the whole responsibility was upon the party procuring it. In false imprisonment the arresting officer, and the party inducing the arrest, and the magistrate assuming to issue the unauthorized warrant, were all liable as joint trespassers. In the former, motive and want of probable cause must be alleged; in the latter, neither was a necessary averment, but probable cause could be pleaded in mitigation of damages. Waterman on Trespass, pp. 346, 347, 348.

We have abolished all common law forms of action, but the principles upon which these distinctions rest are as applicable to our system as to any other. Where the arrest is without authority, we may proceed here as upon the same allegations and against the same parties as at common law in the action of false imprisonment. Where the arrest is made under lawful process, we must proceed alone against the party who sued it out, and must allege malice and want of probable cause. The underlying principle is that in the one case a trespass is committed and in the other it is not.

In this case the arrest Avas made by a lawful officer, upon proper process issued by a magistrate having jurisdiction so to do. The officer committed no trespass in executing it, and the party suing it out was alone liable, and that only in the event that he proceeded maliciously and without probable cause. This was the nature of the proceeding had against Lord by the appellant, and his allegations showed no act committed by him which amounted to a trespass in law. The suit was not properly commenced in the county where the arrest was made, and the demurrer to the jurisdiction was correctly sustained. The judgment is affirmed.

Affirmed.

[Opinion delivered May 4, 1883.]  