Benjamin v. Garee

Ohio Supreme Court

Benjamin v. Garee

1 Wright 450, 1 Ohio Ch. 450

DecidedSeptember 15, 1833

StatusPublished

This text of 1 Wright 450 (Benjamin v. Garee) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benjamin v. Garee, 1 Wright 450, 1 Ohio Ch. 450 (Ohio 1833).

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Opinion

WRIGHT, J.

To sustain a suit for a malicious’ prosecution, the plaintiff must aver and prove that the prosecution of which he complains, is legally at an end. The plaintiff, in the case before us, seeks to satisfy this requisite, by alleging that the examining justice, who, when first acting on the complaint, adjudged the ground sufficient, and recognized the accused to appear at court, to answer the charge, afterwards changed his opinion, refused to return the recognizance, gave notice to the prosecutor, and discharged the accused. It is by law made the duty of the justice, if he recognizes a party to answer to the complaint, to return the recognizance, with a transcript of his proceedings, to. the clerk of the Court of Common Pleas, or to the attorney for the state in the county, without unnecessary delay, 29 O. L. 197. After the justice, acting as an examining magistrate, has recognized a party, he has expended his entire power over the case, and can no more interfere with it, and if he do so, as in the case before us, his acts are null and void. The notice to the complaining party, and his neglect to prosecute, does' not make the justice’s discharge valid. The party accused, however, can, if he choose, obtain his discharge, by application to the Court of Common Pleas, and when that is done, may sue, the prosecution being then at an end.

The demurrer is sustained.

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WRIGHT, J.

To sustain a suit for a malicious’ prosecution, the plaintiff must aver and prove that the prosecution of which he complains, is legally at an end. The plaintiff, in the case before us, seeks to satisfy this requisite, by alleging that the examining justice, who, when first acting on the complaint, adjudged the ground sufficient, and recognized the accused to appear at court, to answer the charge, afterwards changed his opinion, refused to return the recognizance, gave notice to the prosecutor, and discharged the accused. It is by law made the duty of the justice, if he recognizes a party to answer to the complaint, to return the recognizance, with a transcript of his proceedings, to. the clerk of the Court of Common Pleas, or to the attorney for the state in the county, without unnecessary delay, 29 O. L. 197. After the justice, acting as an examining magistrate, has recognized a party, he has expended his entire power over the case, and can no more interfere with it, and if he do so, as in the case before us, his acts are null and void. The notice to the complaining party, and his neglect to prosecute, does' not make the justice’s discharge valid. The party accused, however, can, if he choose, obtain his discharge, by application to the Court of Common Pleas, and when that is done, may sue, the prosecution being then at an end.

The demurrer is sustained.

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Bluebook (online)

1 Wright 450, 1 Ohio Ch. 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-garee-ohio-1833.