Dennis v. . Ryan

Gray, C. In all that pertained to the criminal prosecution of the plaintiff, the defendant was as much the complainant and prosecutor as if he had, unbidden by legal process, appeared before the grand jury and made the complaint upon which the indictment was found. He knew the district attorney to be a law officer of the county, whose duty it was to prosecute for such criminal offences as had been committed within its limits; he appeared before him and related his made-up and malicious story which, if true, constituted, in the opinion of that officer, a criminal offence. The result was that the district attorney, confiding in the truth of his statement, and, as in duty bound, caused him to be subpoenaed to appear before the grand jury and testify as to the matter of which he had complained; he appeared, testified, and the indictment followed. That he was the complainant was not questioned on the trial, nor is it raised by the appellant here. The crime charged was forgery; it was alleged and stated in the indictment to consist of an erasure of an indorsement of payment upon a bond. This, it is insisted on the part of the defendant, did not constitute the crime of forgery, and I am inclined to think it did not; and because, as the defendant insists, it did not, he claims that however false his accusation *388 was, or with whatever evil or malicious intent he instigated the prosecution, and however much it may have vexed and injured the plaintiff, he is not liable in this action, and the reason assigned, in substance, is, that it was through the misjudgment of the district attorney and the grand jury that the indictment was found, a warrant issued, the plaintiff arrested and put upon his defence. I do not doubt that if the defendant’s statement to the district attorney and the grand jury had been true, and that an indictment had been found and prosecuted upon his truthful statement, that this action could not have been maintained; in such case, the defendant would not have been guilty of any wrong. The oppression of the plaintiff would have been attributable alone to the erroneous legal conclusions of the district attorney and grand jury. Such, in effect, was the case of Leigh v. Webb (3 Espin., 165), McNeely v. Driskill (2 Blackf., 259) and Bennett v. Black (4 Ala. [1 Stew.], 494) and other cases which might be cited, and in not one of all of them which have fallen under my observation does it appear that the complaint was not honest and truthful, and that the injury was the result alone of a judicial error. Subsequent to the cases of McNeely v. Briskill and of Bermett v. Black, a case arose in the courts of the respective States of Indiana and Alabama which, in principle, uphold this action. In the former, a count for malicious prosecution was held good, although the charge upon which the prosecution was made did not authorize issuing the warrant. (Collins v. Love, 7 Blackf., 416). In the latter, it was held that in an action for maliciously suing out an attachment, the defendant could not raise the objection that the affidavit made was insufficient to authorize issuing it. (Forrest v. Collins, 20 Ala., 175). And in Anderson v. Buchanan (Wright’s Ohio B., 725), it was held that although the charge made did not constitute a crime, yet, as it was false and malicious, it did not lay with the defendant to raise that objection. (F arlie v. Banks, 30 Eng. Law & Eq. R., 115.) Lord Campbell, Ch. J., in delivering the opinion of the court in a case not distinguishable in principle from the one under con *389 sideration, said: “ I think all that is necessary is that the defendant should falsely and maliciously cause the act to he done; and he did cause it, because, if he had not presented his petition and made a false affidavit, the judge could not and would not have made the adjudication. I should have been surprised and grieved to find any decision of our courts that the action was not maintainable. There is no doubt that if a person truly states to a judge, and the judge thereupon does an act which the law will not justify, the party who made the statement is not liable, because, in that case, the grievance complained of arises not from the false statement of the party but from a mistake of the judge. It would be strange if, where a court is put in motion by a false and malicious statement, it should depend upon a nice question of law whether there was a remedy or not.” A case has arisen in oar own courts in which a party falsely and maliciously prosecuted another for a crime, before a court having no jurisdiction of the offence, and he was held liable in an action for malicious prosecution, upon the ground that falsehood and malice united was the qrmamm of the action; that “ the sting of all this kind of actions is malice and falsehood and the injury resulting therefrom.” (Morris v. Scott, 21 Wend., 281). That the plaintiff was, upon the complaint of the defendant, prosecuted, is not denied; that the complaint was false and maliciously made is established by the verdict of the jury, and now that he has put in motion the officers of the law, and by his false and malicious statement it does not, either upon principle or authority, lay with him to say by way of defence that the injury resulting from the wrong committed by him would not have been consummated hut for the innocent mistake of those imposed upon by him. The judgment appealed from should be affirmed.