
    *Cleek v. Haines.
    May, 1824.
    Trespass — When It Lies— Malicious Prosecution.  — It seems, that if a man is prosecuted without probable cause, for stealing a deed, as for a larceny, his proper action for redress, is trespass, and not trespass on the case.
    Trespass on Case — Wrong Action — Statute of Jeofails,  •-But., if he should bring trespass on the casé instead of trespass, and a verdict is found for him, the error cannot be taken advantage of, in arrest of judgment; the error being cured by the statute of jeofails.
    Same — Same—Same.—Though the verdict was rendered before thatsection of the statute took effect, yet. if the judgment was rendered after the section had begun to operate, the error will be cured,
    Iiaines brought trespass on the case, in the Superior Court of Law for the county of Scott, against Cleek. The declaration charges,' that the defendant had, without reasonable or probable cause, accused the plaintiff before a Justice of the Peace, of having feloniously taken a certain deed for the conveyance of land from one George Cleek, and causing and procuring the said Justice of the Peace to issue warrant against the said plaintiff, by which the plaintiff was arrested and imprisoned, until he was further examined and discharged by a Justice of the Peace.-
    The defendant pleaded not guilty, and issue was joined. ' On the trial, the jury rendered a verdict for the plaintiff, and assessed his damages to $240.
    The defendant then moved in arrest of judgment for the following reasons: 1st. Because the plaintiff, 'in his • declaration, had set forth no cause of action. 2dly. Because, by the plaintiffs own shewing, he could not recover in this action; trespass and not case being the proper action.
    The Court gave judgment for the plaintiff, and the defendant appealed.
    Leigh, for the appellant, contended, that stealing a deed of land, was not larceny. For this position he referred to 1 Hawk. P. C. c. 33, § 22; 4 Black. Com. 234; Rex v. Westbeer, 2 Stra. 1133. If this is correct, the prosecution for larceny, which the plaintiff alledges to have been *instituted, was illegal and void, even on its face. Under these circumstances, an action on the case would not lie, but trespass was the proper remedy. The distinction is, that where a prosecution is instituted for an offence that is punishable in that mode of proceeding, the defendant may bring case. But, if a party is prosecuted for felony, for an act that does not amount to felony, there his only remedy is trespass. These doctrines are completely justified by the opinion of Lord Mansfield, in the case Of Johnstone v. Sutton, 1 T. R. 544; Morgan v. Plughes, 2 T. R. 255.
    The new clause in the act of Jeofails does not apply to this case. 1 Rev. Code, oil, § 103. That clause went into operation on the 1st of January, 1820. The issue was joined in this case, in April, .1818. The trial, verdict, and motion in arrest, were all in September, 1819, and the judgment was rendered in April, 1820. So that the verdict was rendered under the old law. and the judgment only was rendered after the new one went into operation.
    May 15.
    
      
      Trespass -When It Will Lie —See discussion of this subiect in foot-note to Jordan v. Wyatt. 4 Gratt. 151
    
    
      
      Mailcious Prosecution. — See monographic note on “Malicious Prosecution” appended to Guerrant y. Tinder, Gilm. 36
    
    
      
       Pleading and Practice — Defective Pleas —Statute of Jeofails. — Where an improper or defective plea raises a substantial defense to the action, and it is unobjected to in the court below, and issue is thereon joined, after verdict or judgment it is too late to object, the defect being cured by the statute of jeofails. State v. Seabrighl, 15 W. Va. 595 citing principal case to sustain the proposition.
    
   The PRESIDENT,

delivered the opinion of the Court.

This case is within the letter of the section of the act of Jeofails, applicable to it; the judgment having been rendered after that section took effect, though the verdict ■was before; and the Court is of opinion, that it is within the mischief intended to be provided against also. Damages equivalent to the injury complained of, can only be recovered, either in the action of trespass, or trespass on the case. A construction of the act of Jeofails, therefore, which will comprehend this case, cannot affect any substantial right of the defendant. He' might have demurred to the declaration before the section of the act alluded to *went into operation, if his counsel had thought proper. Having failed to do so, and the merits having been as fairly tried in this form of action, as if it had been trespass, and not trespass on the' case, the act of Jeofails ought not to receive a construction that would now permit him to avail himself of the advantage of a demurrer. It is not, therefore, material to decide, whether the plaintiff has mistaken his action or not. On that point, the Court is inclined to the opinion, that the proper action was trespass, and not trespass on the case.

The judgment is to be affirmed. 
      
       JTtdge Coalter, absent.
     