¶1In this action the plaintiff sued Sullivan before'the recorder of Corunna, and in the first count alleged an assault and battery, and in the second, in substance and effect, a malicious prosecution. The recorder rendered judgment for Sheldon, and Sullivan appealed to the circuit court.
¶2The cause being there brought to trial the circuit judge ruled that the first count of the declaration was fatally defective for the want of an ad dammtm clause, and that no recovery was possible under the second count because no-evidence had been given to show that the acts complained of were malicious, and the jury were required to find for the defendant.
¶3*325It may be that the judge was mistaken in holding that there was no evidence of the malice which was averred in the second count. But if so the plaintiff was not injured by the ruling. The cause of action there set up was not suable before the recorder, and no authority was acquired by the circuit court, on the mere strength of the defendant’s appeal, to give judgment for the plaintiff on a cause of action which the law refused to allow the recorder’s court to entertain.
¶4The power of that court to take cognizance of civil cases in general is the same as that extended to justices of the peace, and in reference to this proceeding the recorder’s •authority was subject to “ the laws of this State applicable to justices of the peace elected in townships.” Charter of Corunna, Act 265, 2 Sess. L. 1869, ch. 6, §§ 9, 16. Turning then to the law applicable to justices of the peace we find that jurisdiction of actions for malicious prosecution is •expressly denied. Comp. L., § 5250, as amended in 1815, Pub. Acts 1815, p. 258. The point raised on the admission •of the proceedings which were had in the alleged malicious prosecution becomes unimportant.
¶5On the other part of the case we think an error was committed which necessitates a reversal. The count for assault .and battery was sufficient, and evidence was given under it which the jury should have been allowed to consider. A general ad damnum was inserted at the end of the declaration, and this was regular. 1 Chitty, p. 435. It applied to the count for assault and battery, and in strictness could apply to no other, since the count for malicious prosecution was not lawfully in the case. Moreover had the supposed defect been real it would have been open to correction by amendment. Comp. L. § 5408.
¶6The judgment must be reversed with costs and a new trial .granted.