I see no reason why a similar rule should not be applied to criminal proceedings, at least for the purposes of such an action as this.
Then there is another reason resting on justice which seems to me to lead us to adopt this conclusion. In opposition to what was said in the South Carolina case already referred to, the sole foundation for an action of malicious prosecution is not “the wrong done to the plaintiff by the direct detention or imprisonment of his person.” In an action for false imprisonment that would be so. But in an action of the present type, the substantial injury for which damages are recovered and which serves as a basis for the action may be that inflicted upon the feelings, reputation and character by a false accusation as well as that caused by arrest and imprisonment. This element “indeed is in many cases the gravamen of the action.” Sheldon v. Carpenter, 4 N. Y. 579, 580; Woods v. Finnell, 13 Bush Repts. 628; Townsend on Slander, sec. 420; Wheeler v. Hanson, 161 Mass. 370; Gundermann v. Buschner, 73 Ill. App. 180; Lawrence v. Hagerman, 56 Ill. 68; Davis v. Seeley, 91 Iowa, 583.
But no matter how false and damaging the charge may be in a criminal proceeding upon which a warrant may be issued, damages for the injury caused thereby cannot under any ordinary circumstances be recovered in an action for libel or slander. Howard v. Thompson, 21 Wend. 319, 324; Woods v. Wiman, 47 Hun, 362, 364; Sheldon v. Carpenter, supra; Dale v. Harris, 109 Mass. 193; Gabriel v. McMullin, 127 Iowa, 427; Hamilton v. Eno, 81 N. Y. 116; Newell on Malicious Prosecution, sec. 10.
Therefore, it follows that a person who has most grievously injured another by falsely making a serious criminal accusation against him whereon a warrant has been actually issued, may escape all liability by procuring the warrant at that point to be withheld unless an action for malicious prosecution will lie. It seems to me that under such circumstances we should hold that such action will lie, if for no other reason than to satisfy that principle of law which demands an adequate remedy for every legal wrong.[[371]]...
Vann, J. I concur in the result because there was merely an attempt to prosecute with no actual prosecution. The Mexican court did not acquire jurisdiction of the person of the plaintiff, for he was not arrested, nor was process or notice of any kind served upon him. He was not brought into court and the prosecution could not end because it was never begun. He could not be a party defendant until he was notified or voluntarily appeared. He was threatened with prosecution, but neither his person nor his property was touched. There can be no prosecution unless knowledge thereof is brought home to the alleged defendant in some way. If there had been a prosecution commenced the crime could not have outlawed during the defendant’s absence, as is admitted of record. While in civil actions, in order to arrest the Statute of Limitations, “an attempt to commence an action, in a court of record, is equivalent to the commencement thereof,” still the attempt goes for naught unless followed by service, actual or constructive, within sixty days. (Code Civil Proc. § 399.) The rule was similar at common law. Although, in order to prevent injustice, an action was deemed to be commenced by the delivery of process for service, it was never treated as effectual for any purpose unless actual service was subsequently made. The authorities cited in the prevailing opinion illustrate this proposition.
In the absence of controlling authority, which it is conceded does not exist, I favor restricting rather than enlarging the scope of the action. This accords with the general position of the court upon the subject.
Gray, Haight and Chase, JJ., concur with Hiscock, J.; Cullen, Ch. J., and Willard Bartlett, J., concur with Vann, J.
Order affirmed.[[372]]
CHAMBERS v. ROBINSON
At Nisi Prius, Coram Raymond, C. J., Hilary Term, 1726.
Reported in 2 Strange, 691.
An action for a malicious prosecution of an indictment for perjury.