
    Dennis vs. Ryan.
    Where a party, knowing that a certain act does not constitute a crime, procures another to he indicted for a crime ; or where he supposes and believes that such act, if done by another, would constitute a crime, and falsely and maliciously accuses such other of the commission of the act, and procures him to be indicted; an action for malicious prosecution lies.
    Thus, an action will lie for the malicious prosecution of the plaintiff by the defendant in causing the former to be indicted and tried for the crime of forgery, alleged in the indictment to consist in the erasure, from the back of a money bond which the defendant was under obligation to pay, of an in-v dorsement of a payment thereon.
    A charge that such an action cannot be maintained by the plaintiff, unless the jury are satisfied, from the evidence, that the accusation made by the defendant, on which the indictment was found, was known by him to be false and unfounded; but that if he made the complaint, knowing it to be false and unfounded, and by that means procured the plaintiff to be indicted and brought to trial, the action will lie, even though the charge made did not constitute the crime alleged, or any crime—is not erroneous.
    
      The act charged, if true, would not constitute a forgery of the bond, because the indorsement is no part of the bond, but only evidence of a payment thereon.
    It is impossible for a- party to make for himself probable cause, out of his own falsehood. JPer Johnson, J.
    THIS was an action for malicious prosecution, and false imprisonment, tried at the Cayuga circuit in October, 1870. At the trial, the plaintiff proved that the defendant procured an indictment for forgery to be found against him, on which he was tried and acquitted. The charge was, that he, the plaintiff) had committed a'forgery by erasing a payment indorsed on a bond and mortgage held by the plaintiff against the defendant. To obtain the indictment the defendant stated to the district attorney, and afterwards swore on the trial of the indictment, that on two several occasions he heard the plaintiff admit, substantially, that he did make the erasure. The evidencé of these admissions was substantially all the evidence to charge the'plaintiff with the crime.
    The plaintiff, on his trial, showed that he did not only not make the statements sworn to by the defendant, but in fact the alleged payment never had been indorsed.
    The plaintiff, after his acquittal, brought this action, and proved the foregoing facts.
    At the conclusion of his case the defendant moved for a nonsuit, on the following grounds, viz: The facts charged by the defendant, on which theindictment was found, to wit, the erasure of the payment, constituted, at law, no crime, and the defendant was therefore not liable for his acts.
    The motion was denied, and at the conclusion of the case the court charged the jury, among other things, that “ a party who corruptly and maliciously institutes a prosecution . of this kind, cannot screen himself behind the allegation that the alleged offense was not a crime, and that the plaiutiff was injured to the same extent as though a crime were charged in the indictment.’’
    
      The defendant excepted to this part of the charge, and requested the court to charge that the grand jury having found an indictment for what was not a crime, the defendant was not liable for the arrest and prosecution of the plaintiff. The court declined so to charge, and the defendant excepted to the refusal.
    The plaintiff had a .verdict, on which judgment was duly entered, and the .defendant appealed from the same to the general term ; where the cause- came on to be heard on a case and exceptions.
    
      M. V. Austin, for the appellant, argued the following among other propositions:
    There being no crime charged in the indictment against the plaintiff, the defendant is not liable, even if he made false statements to the district attorney, or prosecuted the indictment by the same means; such statements were entirely immaterial, and did not amount to false charges of a crime. And he cited the following, among other authorities : Jackson v. Dawes, (5 Cranch, 283;) Blunt v. Little, (3 Mason, 102;) McNeeley v. Driscoll, (2 Blackf. 259;) The State v. Thornburg, (6 Iredell, 79;) The State v. McLaren, (1 Aiken, 311;) The State v. Norton, (3 Zabriskie, 33.)
    
      F. D. Wright, for the respondent, among other propositions, made the following points:
    I. An action will lie for a malicious prosecution, even although the plaintiff could not have been convicted for the crime of forgery on the indictment, and will lie for the malicious prosecution of a bad indictment. This case is different from the case where the party innocently and truly states facts to a magistrate which do not amount to a felony, and the officer, without any fault on the part of the complainant, issues a warrant. The case at bar is one where the' defendant deliberately and maliciously set the machinary of the law in motion, and followed the complaint. up by deliberate perjury, on tbe trial of the indictment.
    II. The court and jury had jurisdiction of the plaintiff, and of the alleged offense; and it is wholly immaterial whether the indictment was good or bad, so long as the defendant obtained it by willful and malicious false statements. In such a case he is clearly liable. He cited the following authorities: 1 Archbold’s Crim. Practice and Pleadings, 470; 1 Hilliard on Torts, 470; Forest v. Collins, (20 Ala. 170;) Collins v. Lord, (7 Blackf. 416;) Morris v. Scott, (21 Wend. 281;) 1 Am. Crim. Cases, 208, 209; Prado v. Barrett, (1 Ld. Raym. 81;) Chambers v. Robinson, (1 Strange, 691;) Hicks v. Fentham, (4 T. R. 347.)
   By the Court, Johnson, J.

The action was for the malicious prosecution of the plaintiff by the defendant, in causing the plaintiff to be indicted and tried for the crime of forgery, in altering a certain bond for the payment of money, which bond the defendant was under obligation to pay. The forgery was alleged in the indictment to consist in the erasure, from the back of the bond, of an indorsement thereon, of a payment of $45. It would seem, pretty clear that the act charged, if true, would not constitute a forgery of the bond, as the indorsement was no part of the bond, but only evidence of a payment thereon. It is not very material, in this case, to consider whether it constituted the crime of forgery at all, or if so, what was the instrument so forged, because the indictment charged it to be a forgery, and the plaintiff was obliged to go to trial upon it, and defend himself against the charge. He was prosecuted for that crime in-fact and in law, and was compelled to answer and defend. The point made by the counsel for the appellant, that the defendant is not liable for the prosecution, if he stated the facts truly and honestly to the district attorney, and to the grand jury, and was advised by the district attorney that such facts would constitute the crime of forgery, and the grand jury found the indictment upon such insufficient evidence, does not arise in the case. ■

On looking at the charge of the judge to the jury, it will he seen that the judge expressly charged that the action could not be maintained by the plaintiff, unless they were satisfied, from the evidence, that the accusation made by the defendant, on which the indictment was found, was known by him to be false and unfounded; but that if he made the complaint, knowing it to be false and unfounded, and by that means procured the plaintiff to be indicted and brought to trial, the action would lie, even though the charge made did not constitute the, crime alleged, or any crime. The jury, by their verdict, have found that the defendant, when he made the charge, knew that the facts on which he based it were not true, but wholly false. The appellant, by his counsel, excepted to this portion of the charge.

The charge was correct. The rule is, that where a party, knowing that a certain act does not constitute a crime, procures another to be indicted for a crime, or where he supposes and believes that such act, if done by another, would constitute a crime, and falsely and maliciously accuses such other of the commission of the act, and procures him to be indicted, the action for malicious prosecution lies: 1 Am. Lead. Cases, 281—where nearly all the authorities, English and American, are collected. And in our own court it has been held that this action would lie against a party who falsely and maliciously prosecutes another, although the court, in which, the action was brought, was utterly destitute of jurisdiction in the matter. (Morris v. Scott, 21 Wend. 281.)

In such a case, the gravamen of the action is the malice and falsehood, and the arrest and trouble of defending, are the consequences. A case like this is much stronger than that, because there the question arises, whether there has been in law any prosecution. But in a case like this, no such question can arise. The court had jurisdiction, and the party was in law prosecuted, even though the pleadings were defective, and showed upon their face that the charge could not be sustained.

[Fourth Department, General Term, at Buffalo,

January 2, 1872.

The objection, that the plaintiff was allowed to prove what the defendant testified to before the grand jury, is wholly unfounded. Ho such evidence was given by the plaintiff. He proved by the ■district attorney what statements the defendant made to him when entering the complaint, and what he testified to on the the trial of the indictment. The court ruled that the plaintiff' might prove the defendant’s testimony before the grand jury; but it is apparent that no such testimony was given, and the exception is of no avail, as the mere ruling worked no injury to the defendant. Upon a careful examination of all the testimony in the case, it appears that the jury were well warranted in finding, as they must have found, under the charge, that the charge made by the defendant, on which he procured the indictment to be found, was a sheer fabrication, and most wickedly and maliciously made.

The testimony by which the defendant attempted to sustain the truth of the charge on this trial, is most incredible. This finding puts the question of probable cause wholly out of the case upon the merits. It is impossible for a party to make for himself probable cause out of his own falsehood.

The judgment is right, and must be affirmed.

Mullin, Johnson and Talcott, Justices.]  