
    [Pittsburg,
    September 26, 1825.]
    GRAHAM against NOBLE.
    IN ERROR.
    ín case for malicious prosecution, a declaration, stating that the defendant malíciously, &c. caused the plaintiff to be indicted, is good though it appears by the narr that the plaintiff was tried and acquitted, and there is no averment that the defendant maliciously caused the plaintiff to be fried.
    By the writ of error returned in this ■ case from the Court of Common Pleas of Fayette county, it appeared that this action was brought in that court by Mary Noble, the defendant in error, against Hugh Graham, the plaintiff in error, for a malicious prosecution, and that she recovered a verdict and judgment for six hundred and fifty dollars.
    The declaration stated, “ that the same Hugh Graham, minding and most wickedly intending her, the said Mary, most unjustly to damnify, &c. at the county Court of Oyer and Terminer and general jail delivery, held for Fayette county aforesaid, on the fourth Monday of October, 1S22, before T. H. Baird, Esq., and his associate judges of the same court, to keep the peace, &e., her, the said Mary, by the name of Mary Noble, late of the county aforesaid, for that she, the same Mary Noble, on the 6th of August, 1822, in the county aforesaid, and within the jurisdiction of the same court, not having the fear of God before her eyes, but being moved and seduced by the instigation of the devil, about the hour of one in the night of the same day, with force and arms, at the township of New Allen in the county aforesaid, a certain barn of one Hugh Graham, there situate, feloniously, voluntarily, and maliciously, did set fire to, and the same barn, then and there, by such firing as aforesaid, did burn and consume, against the form of the statute in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania, and other harms to him then and there did, to the great damage of the said Hugh Graham, &c., falsely, maliciously, and unjustly, and without any reasonable or probable cause, did cause and procure to be indicted, and thereupon at the same court, by the justices aforesaid, for the county aforesaid, then and there held, she the said Mary Noble, did come and appear, and being asked how she would be acquitted, the said Mary did say and plead to the said indictment, that she was not thereof guilty, and thereof did put herself upon the country, and Thomas Elder, gentleman, who for the commonwealth in that, part followed, likewise, &c.”
    The declaration then alleged, that a jury being called, sworn, &c., rendered a verdict of not guilty, and the court adjudged her1 to go thereof without day, &c.
    The plaintiff in error assigned the following errors:
    1. The declaration does not set forth any legal cause of action, because by showing that a bill was found by a grand jury, it shows sufficient probable cause to justify the complaint or preferring the indictment.
    2. It ought to be alleged, that afteb indictment found, Hugh Graham maliciously, and without any probable cause, did causo to be tried, &e.
    3. The gist or gravamen of the declaration is, that the said Mary did come and appear, and being asked how she of the premises above, upon her, by the said indictment imposed, would be acquitted, &c., which alleges nothing against Hugh Graham.
    
    
      Coulter, for the plaintiff in error.
    No cause of action is-shown by the declaration. It sets forth, that a bill of indictment was found against Mary Noble, which shows probable cause for the indictment. The declaration is, that the defendant, maliciously and without probable cause, caused the plaintiff to be indicted, but not that the defendant maliciously prosecuted the trial of the indictment. If the bill is found by the grand jury, the defendant need not show probable cause. Bull. N P. 14.
    
      Kennedy, contra.
    If the opposite argument is correct, no action for malicious prosecution will lie in any case when the grand jury have found the bill. I3ut the law is not so. The finding of the hill is only prima facie evidence of probable cause: it throws on the plaintiff the onus of showing, that there was no probable eausc. This narr. is in the usual form, taken from Read’s precedents, and drafted by Tench Francis.
    
   The opinion of the court wqs delivered by

Tilghman, C. J.

This is an action for a malicious prosecution, The declaration charges Hugh Graham, the defendant, with maliciously, and without probable cause, procuring a hill of indictxnent to be preferred to the grand jury, at a Court of Oyer and Terminer and general jail delivery for the county of Fayette, «gainst Mary Noble, the plaintiff, for feloniously setting fire to, and burning the barn of the defendant, -which said bill of indictment '|ras found by the grand jury to be a-true bill, and the plaintiff was thereupon arraigned, tiied, and acquitted. The declaration avers, also, that the plaintiff was put to' considerable costs and expenses in defending herself against the said prosecution. The error assigned, is in the declaration, which, it is said, sets forth no good cause of action; because if does not allege that the defendant, after the finding of the bill of indictment, maliciously, and without probable cause, did cause the plaintiff to be tried, &c. The argument of the defendant is very refined. It is this: All the charge made by the plaintiff against the defendant is, that he maliciously, &c. caused her to be indicted, and this is contradicted on the face of the declaration, by which it appears that the bill was found to be true, and therefore there was in taw probable cause for preferring it. But this is begging the question. For it may be that the grand jury were imposed on. They hear evidence only on the side of the prosecution; and the bill may have been found on the false oath of the plaintiff, or of some other person who was corrupted by him. It appears that the declaration in this case was copied from Read’s precedents. Mr. Read took many of his precedents from old manuserips of good, authority. He generally mentions the attorney who drew the original, as he has done here, and it is a very respectable name, — Tench Francis, attorney general of Pennsylvania. But, without relying on this authority, let us consider the exception taken to the declaration. It is said to be defective, because it does not aver that the defendant carried on the prosecution, after the finding of the bill. Now, granting that to be the case, was not the plaintiff injured, by the finding of the bill ? What was her situation after it was found ? She could not be discharged without trial, and she.could not be tried without expense. It sufficiently appears by the declaration, therefore, that the defendant did maliciously, and without any probable cause, throw the plaintiff into a situation, from which she could not be extricated without loss of time, expense of money, and great pain of mind. If this be not cause of action, it is hard to conceive what can he. We want no precedent to support such a declaration. The fallacy of the defendant’s argument lies in this supposition that, from the finding of the bill, the law infers that there must have been probable cause for the preferring it to the grand jury. In support of this position, Fuller’s Nisi Prius was cited. Fuller says, that if the bill was found, the defendant need not 2)rove probable cause. That is very true: the finding of the bill is jjrima facie evidence of probable cause, and therefore the bur-then of proving Hint there was not probable cause is thrown on the plaintiff. But the prima fade evidence may be rebutted by contradictory proof, and, if the law were not so, it would be impossible to maintain an action for a malicious prosecution, in any case where a bill was found, and the prosecutor took no further part in the business, but artfully retired, and left the accused to get out of the scrape in the best manner he could. This is against all reason, and would lead to this monstrous consequence, — that although an action might be supported, where the bill was negatived, yet where it was found, through the artifice and villany of the prosecutor, by which the innocent person suffered infinitely greater damage than if it had been negatived, he is to go without remedy. I have no doubt that the declaration in this case sets out a sufficient cause of action, and therefore the judgment should be affirmed.

Judgment affirmed.  