
    WILLIAM C. KNEELAND, Plaintiff and Appellant v. CHARLES SPITZKA, Defendant and Respondent.
    I. MALICIOUS PROSECUTION.
    
    1. SETTING ON FOOT PROSECUTION—WHAT IS NOT.
    (a.) A criminal complaint was made hy A., against C. and others, charging them with a conspiracy to defraud by means of false pretenses. On this complaint C. was arrested, and gave bail to appear to answer any indictment that might be brought. B. did not instigate or promote this prosecution, hut after the bail had been given he made, to the justice before whom A.’s complaint was made, a complaint against C. for obtaining money by false pretenses, and asked for a warrant; the justice refused to issue a warrant, but told B. that ho could increase the amount of bail; he did not increase the amount of bail. All the complaints were sent to the district attorney, but it did not appear that B.’s complaint was brought before the grand jury.
    HELD
    1. That no pi'osecution had leen set on foot ly B.
    
    2. ENDING OF PROSECUTION—WHAT IS NOT!
    
      (a.) In above case the action of the grand jury refusing to find an indictment on the charge preferred by A., and the consequent discharge of C. from the recognizance given by him on that charge, is not an ending of the prosecution set on foot (if any such was so set on foot) by B.
    Before Sedgwick and Freedman, JJ.
    
      Decided June 25, 1877.
    Appeal from judgment entered on order at trial dismissing complaint.
    The facts appear in the opinion.
    
      Albert Day, for appellant.
    
      Robert D. Green, for respondent.
   By the Court.—Sedgwick, J.

The action was upon an allegation of a malicious prosecution. The following facts appeared in the testimony for plaintiff. One Hoese made a criminal complaint charging the plaintiff and two others with conspiring to defraud by means of false pretenses. The plaintiff was arrested, waived an examination and gave bail to appear to answer any indictment that might be found against him. The bond was given August 30. There was no fact tending to show that the defendant instigated, or in any way promoted the commencement of this prosecution.

After this bond was given the defendant made a criminal complaint against the plaintiff for obtaining money by false pretenses. This complaint was made on September 1. Other complaints of a like nature were made by other parties. The defendant asked that a warrant for plaintiff’s arrest be issued on his complaint. The justice of the peace, who had before him all the complaints, refused to issue a warrant as asked by defendant. He testified that he (when he so refused) told the defendant and the other complainants that he could increase the amount of bail, so as to secure plaintiff’s appearance, the same as if he should take new bonds. He did not increase the amount of bail, because the proof was that the plaintiff gave bail but once, and that was before the day the defendant made his complaint. The justice sent all the complaints to the district attorney. There was no proof that defendant’s complaint was entertained or examined by or offered to the grand jury, or that he appeared as a witness.

On the the trial the plaintiff offered as testimony an order of the court of general sessions. • The evidence was excluded as irrelevant. The order was a discharge of the plaintiff from the recognizance he had given upon the charge of conspiracy, and recited that the grand jury had examined the charge and refused to find a bill.

On these facts it is certain that the plaintiff did not show that the defendant set on foot any prosecution. Even if he wished to do it, the action of the justice prevented him. Even if there had been a prosecution on plaintiff’s complaint, there was no proof that it had been ended. The order of the sessions would have shown only an ending, favorable to the plaintiff, upon the charge of conspiracy made by Hoese.

The judge below properly dismissed the complaint in this action, and the judgment appealed from should be affirmed with costs.

Freedman, J., concurred.  