delivered the opinion of the court.

The exclusion of the affidavit which was the commencement of the prosecution complained of as malicious was erroneous. The gravamen of the action is the malicious prosecution of the plaintiff, upon a false and unfounded charge, whereby damage was done to him. It matters not that the affidavit does not contain a charge of felony or other crime. It served as the basis of a warrant for the arrest of the party charged, and the sting of malice and falsehood is just as hurtful when inflicted through the medium of an affidavit legally insufficient, as if it was drawn with technical precision. It is settled by respectable authorities that case, as contradis-tinguished from trespass vi et armis, is maintainable in such *273case, and this view fully comports with our system of remedies. Hays v. Younglove, 7 B. Mon. 545; Morris v. Scott, 21 Wend. 281; Stone v. Stevens, 12 Conn. 219.

Judgment reversed and new trial a,warded.