Beuthner v. Ellinger

63 N.W. 756, 90 Wis. 439, 1895 Wisc. LEXIS 290

• Court: Wisconsin Supreme Court
• Decided: June 20, 1895
• Status: Published

Opinion

Winslow, J.

It is argued in support of the demurrer that under ch. 164 of the Laws of the United States for 1885, it is not a criminal offense to encourage or assist the immigration of aliens into the United States under contract to perform labor therein, as that act simply provides for the recovery of a penalty for its violation. Erom this premise it is argued that the complaint which the defendant procured to be made did not charge the commission of any criminal offense, and that the United States court commissioner erred in issuing a criminal warrant upon that complaint,, and that no criminal prosecution was in fact commenced. Granting that the complaint charged the commission of no-criminal offense, still a criminal warrant was issued upon it. by the procurement of the defendant, and it is settled in this state that an action for malicious prosecution may be maintained if the proceedings are malicious and unfounded and without probable cause, even though the complaint fails to state a criminal offense and the warrant is void. It is no-clefense to show that the complaint was insufficient in law to authorize a criminal prosecution. Lueck v. Heisler, 87 Wis. 644. This is the only point made which deserves attention.

By the Court.— Order affirmed.