
    Joseph Bixby vs. Cornelius V. N. Brundige.
    A record of a prosecution and acquittal, before a justice of the peace who had no jurisdiction of the case, is not sufficient to sustain an action for malicious prosecution.
    Action of tort for malicious prosecution.
    At the trial in the court of common pleas, the plaintiff, in proof of the prosecution and acquittal, produced a certified copy of a complaint, and warrant, and judgment of acquittal, in a prosecution against him in the name of the Commonwealth for an unlawful sale of intoxicating liquors in Lowell, before a justice of the peace for this county, who was admitted to have had no jurisdiction of the complaint, nor authority to issue a warrant returnable before himself.
    The defendant objected to this evidence, on the ground that, if the justice had no jurisdiction, there was no record either of prosecution or acquittal, so as to sustain this action. And Bishop, J. ruled that the action could not be maintained upon this state of facts. The jury returned a verdict for the defend ant, and the plaintiff alleged exceptions to this ruling.
    No counsel appeared for the plaintiff.
    
      B. F. Butler, for the defendant.
    As the justice had no jurisdiction of the cause nor of the party, all his proceedings were coram non judice and void. Butler v. Potter, 17 Johns. 145. To sustain an action for malicious prosecution, it must be shown by duly authenticated record evidence that the prosecution has been ended. Sayles v. Briggs, 4 Met. 421. Stone v. Crocker, 24 Pick. 87. Parker v. Farley, 10 Cush. 279. A record is a history of judicial proceedings. 4 Met. 423. But here there never were any judicial proceedings. And how can one be said to have been legitimo modo acquietatus of an offence of which he has never been tried ?
   Merrick, J.

The ruling excepted to was unobjectionable. As the magistrate had no jurisdiction of the offence of which the plaintiff was accused in the complaint, the proceedings before him were of no legal force or validity; and they therefore afford no sufficient basis to sustain an action for malicious prosecution. Exceptions overruled  