¶1 dissenting. — While technical defects or inaccuracies in the affidavit, complaint, information or indictment, or warrant, will not defeat an action for malicious prosecution, the fact remains that if the process on which the arrest was made was void, no action for ma *970 licious prosecution will lie. For imprisonment on void process, an action for false imprisonment is the remedy. See 38 C. J. 389, 390, and 25 C. J. 444-446, 19 Am. & Eng. Encyc. Law, 654, and cases cited. Though frequently confused, the distinction between malicious prosecution and false imprisonment is fundamental. Am. & Eng. Ency. Law, Vol. 12, pp. 731, 744, 752; 18 R. C. L. 11, 12; 11 R. C. L. 791. It is hard to say from the allegations in the plaintiff’s declaration whether his remedy is one for malicious prosecution, or for false imprisonment. The affidavit and warrant are not set out, and there are no allegations as to what the warrant charged.
¶2 The allegation as to the contents of the affidavit alleged to have been made by the defendant omit at least one of the essential elements of the criminal offense which was probably intended to be charged. On the whole, I do not think the record puts the trial court in error by reason of its action in sustaining the demurrer.