Holbrook v. Cooper

¶1This case being tried on appeal the jury-awarded Cooper $10.35 and Holbrook brought error to this court. The main questions arise on the declaration.* Hol *374brook pleaded the general issue and abstained from objecting until Cooper came to offer evidence before the jury. lie . then claimed that no evidence was admissible — 1st, on the ground that the declaration was for malicious prosecution — ■ an action the justice' could not entertain; and 2d, because the declaration was not for malicious prosecution and did not set forth any cause of action whatever.

¶2As we are bound to intend the plaintiff wished to state his case in legal conformity with the facts appertaining to it, we cannot avoid looking at the declaration as an astonishing performance. It would be difficult to find a more striking instance of contempt for the formal proprieties of pleading. And certainly no such experiment is to be commended. It is very clear that malicious prosecution is not alleged. The final constituents of such a charge are wanting. And there is nothing well enough stated to have stood against a demurrer. It was alike a dictate of prudence and good practice to amend when the question was raised if not before, instead of leaving a point not destitute of plausibility at least, to invite a writ of error. But we are bouncbto overlook awkwardness and faults of form and extend the extreme indulgence accorded to pleadings before a justice of the peace; and particularly where instead of being raised seasonably the objection is held back until the production of evidence at the trial. How large that indulgence is will appear from the cases. Hurtford v. Holmes 3 Mich. 460; Daniels v. Clegg 28 Mich. 32; Smith v. Hobart 43 Mich. 465; Chancey v. Skeels 43 Mich. 347; Wilcox v. T. & A. A. R. R. Co. 43 Mich. 584; Snyder v. Winsor ante p. 140; *375Van, Middlesworth v. Van Middlesworth 32 Mich. 183; Clark v. Field 42 Mich. 342; Cook v. Perry 43 Mich. 623.

¶3After scanning the declaration we think it contains the rudiments and essence of a legal demand of a legal right. Disregarding the question of form and the infelicity of legal expression, the language appears to comprehend the declaration of an actionable grievance. It seems in effect to assert that the defendant caused certain money to be extorted from the plaintiff under duress of imprisonment on a criminal process, which process and imprisonment the defendant procured for that end, and that the plaintiff sued to get that money back as damages. And admitting this to be a correct construction, there was a lawful ground of action. Seiber v. Price 26 Mich. 518 ; Hackett v. King 6 Allen 58; Osborn v. Robbins 36 N. Y. 365; Bush v. Brown 49 Ind. 573; Strong v. Grannis 26 Barb. 122; Brownell v. Talcott 47 V 243; Chandler v. Johnson 39 Ga. 85 ; Clark v. Pease 41 N. H. 418; Williams v. Brown 3 B. & P. 69; Cooley on Torts 506.

¶4In ease of a crime committed neither the person specially injured nor another has a right to convert it into a sopree of benefit or profit to himself, and if he proceeds to do so and in the course of the transaction permits a portion of the fruits to go directly into other hands without touching his own, this will not excuse him from being answerable therefor. His wrong and its detriment to the person wronged are not diminished by a division with others of the fruits expected and realized from his misdoing.

¶5It appears from the record that there was enough of pertinent evidence before the jury for their consideration, and that the instructions were sufficiently favorable to the plaintiff in error, and we do not agree with counsel that the special and general findings are prima facie incapable of standing together.

¶6The striking out of Holbrook’s testimony touching his talk with Bailey about Cooper’s effort to 'get trusted was only prejudicial to Cooper if to either.

¶7*376. On tlie whole we think the judgment should be affirmed with costs.