author: Jones, C. J.

text:
    Samuel Candler versus Richard Petit.
    In an action for a malicious prosecution, it appeared that the defendant presented himself, with several witnesses, before the Grand Jury, which indicted the plaintiff, and gave oral testimony, charging him with having committed the crime of perjury. The District Attorney, by direction either of the defendant, or his counsel, (it did not clearly appear which,) laid a certain affidavit, made by one W., (who was dead,) before the Grand Jury, who returned it to him, with directions, that an indictment should be drawn against the plaintiff. The District Attorney thereupon drew an indictment, founded upon the affidavit of W. exclusively; and upon that indictment, the plaintiff was eventually tried and acquitted.
    Between the time of the finding of the bill and the trial of the cause, the defendant caused the trial to be put off) upon an affidavit of his own, stating the absence of a material witness ; and when the trial came on, his counsel discovered, for the first time, that the perjury alleged in the indictment, differed from that charged by the oral proof, laid before the Grand Jury, and that the indictment could not be supported. They therefore abandoned the prosecution, and the plaintiff was acquitted.
    Upon the trial of the action fora malicious prosecution, the Judge charged the jury, that if the defendant had no probable cause for his accusation, he could not be excused from the consequences of prosecuting the indictment, even if he were under a misapprehension as to the specific charge contained in it, or ignorant of its contents.
    Held, that this direction was incorrect, although the defendant would be liable for prosecuting the indictment, if aware of its contents, even if it did assign a perjury differing from that charged by himself.
    Held" also, that the defendant would be liable, if the affidavit of W. was sent before the Grand Jury by him, or by his direction: but that he might defend himself by showing that there was probable cause for the charge actually made by him before the Grand Jury; although that defence would not be a complete one, unless it showed a probable cause for the whole charge.
    This was an action on the case for a malicious prosecution.
    The declaration contained two counts. The first count set forth, in substance, that the defendant, at a Court of General Sessions of the Peace, holden in and for the city and county of New-York, on the first Monday of June, in the year 1828, falsely and maliciously, and without probable cause, indicted the plaintiff, and caused and procured him to be indicted for perjury, in the testimony given by him upon his examination as a witness on the trial of an indictment against one William Williamson for perjury, in the Court of General Sessions of the Peace for the city and county of New-York, in October, 1827; and that the defendant falsely, maliciously and without probable cause, caused and procured the said indictment to be prosecuted against the plaintiff, until the plaintiff afterwards, at the General Sessions of the Peace, held in and for the city and county of New-York, on the tenth of October, 1828, was by due course of law acquitted of the charge by a jury, and discharged therefrom by the court, and the prosecution was wholly ended and determined.
    In the indictment, which the plaintiff, in this count of his declaration, assigned as the false and malicious prosecution complained of, the Grand Jury described and stated, the perjury for which they indicted him, to consist in this ; that upon the trial of Williamson, as mentioned in the declaration, it became material to inquire, whether Williamson,, n 1823, had met Candler, the plaintiff, on the Royal Exchange in London, and whether he, Williamson, had then had a conversation with Candler, respecting Petit, the defendant, in this suit, and whether Candler had admitted, in that conversation with Williamson, that Petit, was indebted to him, Candler, in only the sum of twenty three pounds sterling, or thereabouts. That Candler, on being interrogated upon the sa'id trial, to those points, did falsely swear, and give in evidence in substance, that Williamson had not met him, Candler, on the Royal Exchange in London, in the year 1823, and that Williamson had not had any conversation with him, Candler, respecting Petit, the defendant, and that he, Candler, had not admitted in any conversation with Williamson, that Petit was indebted to him, Candler, in the sum of twenty three pounds sterling, or in any other sum whatever : whereas in truth and in fact, Williamson did meet him, (Candler,) in 1823, on the Royal Exchange in London, and had a conversation with him respecting Petit,—and Candler did admit in a conversation with Williamson, that Petit was indebted to him, Candler, in-the sum of twenty three pounds sterling.
    The second count stated, in substance, that another bill of indictment, which the defendant Petit, well knew was .found and presented

      without any reasonable or probable cause, had been found and presented against Candler, the plaintiff, for a charge of perjury, in all respects similar to the charges mentioned and described in the first count: and that the defendant, Petit, afterwards, falsely, maliciously, unlawfully, and without probable cause, caused and procured the same to be prosecuted, until the plaintiff was at a General Sessions of the Peace, held in and for the city and county of New-York, on the tenth of October, 1828, by due course of law, acquitted of the charge by a jury, and discharged therefrom by the court, and the prosecution was wholly ended and determined.
    A third count was also added, stating in general terms, that the defendant, Petit, at the time therein specified, falsely and maliciously, and without any reasonable or probable cause, charged the plaintiff, Candler, with having committed felony, by means of which charge, the plaintiff was indicted; and the defendant, falsely, maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said indictment to be prosecuted for a long space of time, to wit, the space of four months then next following, at the expiration of which time, the plaintiff was duly discharged, and by a jury in due form of law acquitted.
    To this declaration the defendant, pleaded the general issue.
    The cause was tried before Mr. Justice Oakley, on the 9th day of April, 1329. At the trial, the plaintiff, in order to maintain the issue on his part, produced, and read in evidence an exemplification of the record of indictment against him, and of his acquital; from which it appeared, that the charges against the plaintiff were such as the two first courts of the declaration stated and described them to be, and that he was acquitted of them by the jury.
    The plaintiff then called John D. Brown, one of the Grand Jury, which found the indictment against Candler, as a witness. He testified, that Petit appeared before that Grand Jury as a witness against Candler, and swore that the plaintiff had arrested him in a civil action for 10,000 dollars, and.had obtained a judgment against him for upwards of 5000 dollars; when the true balance due from himself to the plaintiff, was only =£23. 10s. 4d.; and that he (Petit) had a witness to prove that Candler had admitted the above balance to be the true one. That Candler had sworn that he did not know Williamson, who had testified in said civil suit, and had never seen him before that trial; whereas he (Petit) knew that Williamson was intimate with Candler, and had often seen them together in company. That Candler had admitted to one Captain Augustus H. Griswold, in London, that he claimed only £20 of Petit.
    Mr. Brown also testified, that three other witnesses were examined before the Grand Jury, viz: A. H. Griswold, Orlando Harriman and John Griswold ; and their testimony (which was' detailed) tended to support the evidence of Petit. That the Grand Jury intended to indict Candler, for swearing that Petit owed him a large sum, instead of a small one, and that he did not know Williamson. That the Grand Jury were chiefly influenced by the oral testimony before them, but they also took into consideration a certain affidavit made by Williamson, which was laid before them by the District Attorney. It was this affidavit which first induced -the Grand Jury to enter upon the investigation of the complaint against Candler.

    The affidavit referred to, by the witness, was then read by the counsel for plaintiff. It was subscribed by Williamson, and bore date the 9 th of October, 1827. It stated, that on trial of the indictment against Williamson for perjury, on the 3d day of October, 1827, Candler being examined as a witness, swore, that he never saw the deponent in the city of London, and never admitted to him, that Petit was indebted to him, (Candler,) in the sum of £23, only, nor any . thing to that effect; and that the statement so made by Candler under oath, was in all respects false.

    The plaintiff then called Hugh Maxwell, Esq., as a witness, who testified, that he was the District Attorney for the city and county of New-York, at the time the trials before referred to were had. That an indictment was preferred against Williamson for perjury, founded upon the oath of Candler, That upon Williamson’s trial, Candler was examined as a witness, but the defendant was acquitted. That subsequently, Williamson preferred a complaint against Candler for the same crime, founded upon the affidavit before referred to; which complaint was submitted to the Grand Jury and dismissed. After this, Williamson died, and after his death, Petit came to the witness and said, he wished to go before the Grand Jury, in reference to the charge of Williamson.. That Petit and one Richard Cliburn came to the office of the witness together, and made the same request. That William M. Price, Esq., appeared as counsel for Petit, and either in the presence of Petit, or after-wards, requested that the papers might be laid before the Grand Jury; but the witness knew of no papers, besides Williamson’s affidavit, That the witness, thereupon, sent that affidavit to the Grand Jury, who returned it to him, with directions for the District Attorney to draw a bill against Candler; and upon that affidavit, and that alone, he drew the indictment referred to in the declaration. Afterwards, at the July term of the Court of Sessions, in the year 1828, Mr. Price and Mr. J. Duer, appeared as counsel against Candler, and moved to put off the trial of the cause upon an affidavit made by the defendant, wherein he stated, that Captain A. H. Griswold, of the London packet ship Cambria, was an important witness for the prosecution, and would swear that Candler had admitted to him, that Petit owed him but ¿£20; that Williamson was known to Candler, and that the general character of the latter was bad. That Griswold was then absent in said ship, and would not return before the following September. Upon this"affidavit, the trial was postponed until the return of Griswold.
    Afterwards, at the October term of said court, the counsel against Candler appeared and declared, that they were unwilling to proceed to the trial of said cause, on the ground, that the indictment alleged a perjury to have been committed by Candler, different from that which they had intended to submit to the Grand Jury ; and that the testimony they were prepared to offer, would not support the indictment found. Mr. Maxwell further testified, that he should not have taken any measures against Candler, but for the earnest solicitations of Petit and Cliburn.

    Upon his cross-examination he also testified, that he was present in court, when the civil suit of Candler against Petit was tried. That Williamson, on that occasion, stated that the conversation between himself and Candler, was held when they were alone. That Candler, after that trial, swore, in open court, that he had never, to his knowledge, seen Williamson before; that he had never conversed with him, and that the true balance due to him from Petit, was upwards of 5000 dollars. That when Candler was tried, Williamson was dead, and the counsel employed by Petit, declared, in open court, that they were ready to try the indictment, if it were amended so as to meet the facts of the case. This offer was declined by Candler’s counsel; and the witness himself, thought it ought not to have been accepted.
    Upon this testimony, the counsel for the plaintiff rested their cause; and thereupon, the counsel for the defendant moved for a non-suit, upon the ground, first, that the affidavit of Williamson was the foundation of the indictment, and that, therefore, the defendant could not be charged as the author, or instigator of the prosecution, he not having sworn to any fact, in corroboration of Williamson’s testimony.
    II. If the Grand Jury found the indictment upon the oral testimony before them, then the bill, having assigned a perjury differing from that testimony, the defendant was not chargeable with the mistakes of the Grand Jury, nor those of the District Attorney.
    III. The affidavit of Petit, upon which the trial of the indictment against Candler was postponed, could not implicate him as a party prosecuting the indictment. 1. Because he was ignorant, at the time he made the affidavit, that the indictment did not embrace the complaint preferred by him before the Grand Jury. 2. '^Because the defendant and his counsel were ignorant, at that time, as to the specific charge contained in the indictment. 3. Because a prosecuting party is not bound in law, to be held responsible for the mistakes or errors of the Grand Jury, in directing the form or mode, in which an indictment is to be drawn, nor for those of the District Attorney, who draws the indictment.
    Upon these points, the presiding judge expressed an opinion, that the plaintiff could not, as the proof then stood, recover upon the first count of his declaration, as there was not enough to show. that the defendant had indicted the plaintiff, or caused him to be indicted. As to the second count, wherein the defendant was charged with having falsely and maliciously caused the indictment against the plaintiff to be prosecuted, the presiding Judge was inclined to the opinion, and for the purposes of the trial, ruled, that the plaintiff had adduced evidence enough in support of that count, to warrant him in going to the jury. The motion for a non-suit, was therefore denied, and an exception to the opinion of the Judge taken by the defendant.
    The counsel for both parties, then went into a full and elaborate investigation of the merits of the cause, each party producing many witnesses, and much documentary testimony, to support their various allegations. But as the testimony was very voluminous, and is not necessary to a correct understanding of the points decided, all details relating to it are omitted.
    On the part of the defendant, it was alleged, that in jroint of fact, Petit owed Candler but £23. 10s. 4d.; that Candler was well acquainted with Williamson, in London, and that Petit had the strongest possible cause to believe, that Candler had committed the perjury wherewith he was charged. To support these allegations, all the accounts between the parties were produced, and several witnesses examined.
    On the part of the plaintiff it was contended, I. That the true balance, due from Petit to Candler, was indicated by the judgment obtained by the latter against the former. That Williamson was suborned by Petit to testify, on the trial of the civil cause, to a pretended conversation between himself and Candler, which never took place. That he testified falsely on that occasion, and the jury being charged by the Judge, who tried that cause, (William Duel", Esq.,) to find a verdict for the defendant, (Petit,) if they could credit the testimony of Williamson, found a verdict for the plaintiff, for the full amount of his claim, (5000 dollars and upwards,) in the teeth of Williamson’s testimony. That the Judge, being strongly impressed with the belief, that Williamson was a corrupt witness, caused Candler to make the affidavit, upon which the indictment against Williamson was founded. That afterwards, on the trial of Williamson, Petit suborned Cliburn to appear asa witness to contradict Candler, and sustain Williamson. That after Williamson’s acquittal and death, Petit made two several attempts, before different Grand Juries, to cause Candler to be indicted, but that his complaints in both instances were unanimously dismissed. That he persevered in his efforts, employed eminent counsel, and finally succeeded in causing Candler to be indicted and tried. That Petit not only had no probable cause for believing Candler to be guilty of perjury, but knew him to be entirely innocent of that charge.

    The evidence chiefly relied upon, to prove that Cliburn and Williamson were suborned by Petit, consisted of the cross-examinations of those witnesses, and the letters of Petit himself. From these it appeared, that Petit and the two witnesses were all Englishmen, Cliburn residing in London, the others in America. That after Williamson’s indictment, Petit employed one Charles Shepherd, (an Englishman also,) to go to London and collect testimony to sustain Williamson, and “not be particular about the means ofpro“curing it.” That, while there, Petit addressed a great number of letters to Shepherd, upon the subject of his mission. That Shepherd employed Cliburn to come to America, as a witness; but before he could complete his business, was himself compelled to abscond, leaving his papers behind him. That these papers, together with the letters of Petit, (which were all in a trunk together,) were sent out to Edward Hardie, Esq,, of New-York, by the creditors of Shepherd. That Mr. Hardie, upon inspecting the papers, discovered that the letters deeply implicated Mr. Candler, and, without knowing the merits of the case, and being a stranger to Candler, caused the letters to be conveyed to him, after they had been submitted to Anthony Dey, Esq., the counsel of Mr. Hardie.
    The testimony upon both sides was very complicated and extensive, and the defendant insisted most strenuously, that whether Candler was guilty of perjury or not, the defendant had the strongest possible reasons, for believing that he was perjured, and that his evidence established that part of his defence, conclusively, as well as the fact, that Candler swore falsely, when he declared, that he did not know Williamson, and that Petit owed him upwards of 5000 dollars.
    The defendant contended, also, that he had been in no way instrumental in procuring, or prosecuting the indictment, on which Williamson was tried, and to sustain that part of his defence, he called William M. Price, Esq., as a witness.
    Mr. Price testified, that he was counsel for Williamson on his trial for perjury. That Candler was sworn as a witness, and testified, that he had never seen Williamson, until he appeared as a witness on the trial of the civil suit. That he had never stated to any one that Petit owed him only £%3, or thereabouts, and that the fact was otherwise. Mr. Price also testified, that he acted as counsel for Williamson, when he preferred Ms complaint against Candler, for perjury. That he, (Mr. Price,) drew up an affidavit for Williamson, which was sworn to by him, and submitted to a Grand Jury, who dismissed the complaint. That after the death of Williamson, the witness acted as counsel for the defendant, who wished to prefer a complaint against the plaintiff for perjury. That he spoke to Mr. Maxwell on the subject, and told him that the defendant, (Petit,) wished for an opportunity of going before the Grand Jury; but the witness never did, at any time; request the District Attorney to lay the affidavit of Williamson before them. That he never saw the indictment against Candler, until the day before his trial, and when he drew the affidavit of Petit, upon which the motion for putting off the cause was founded, he had not seen the indictment, and was ignorant of its contents, but supposed it had been drawn by the District Attorney, in conformity with the oral testimony laid before the Grand Jury. On the evening before the trial, Mr. Duer and the witness, for the first time, examined the indictment, and immediately determined that it could not be supported by the evidence they were prepared to offer. They communicated their views to Mr. Maxwell, who, nevertheless, persisted in bringing on the trial. When the cause was called, the witness and Mr. Duer declined to appear as counsel for the prosecution, but offered to try the cause without delay, provided the indictment was so altered, as to conform to the oral testimony laid before the Grand Jury. This offer being declined, the counsel for Petit abandoned the prosecution.
    The counsel for the defendant, also called Mr. Geraud as a witness, who was on the same Grand Jury with Mr. Brown. He testified, that the indictment of Candler, was procured by the oral testimony presented to the Grand Jury, although he did not doubt that the affidavit of Williamson had some weight with them.
    Mr. Maxwell, being recalled by the plaintiff, testified, that his impression was, that Mr. Price had requested him to send the papers before the Grand Jury; but, if the request was not made by him, he was confident it was made by Petit himself.
    The cause having been summed up upon the evidence, the Judge charged the jury; and after explaining the nature of the plaintiff’s cause of action, he instructed them, that if either of the counts of the declaration were supported by proof, the plaintiff was entitled to a verdict. That the question first to be decided, was, whether the defendant had indicted the plaintiff, and caused and procured him .to be indicted for the crime of perjury, as set forth in the first count of the declaration. That the charge made by the defendant before the Grand Jury, was essentially different from that stated in the indictment. That the indictment appeared to have been founded upon Williamson’s affidavit; but if Petit himself requested the District Attorney to lay that affidavit before the Grand Jury, he was responsible for the consequences. .
    That if the jury, upon weighing the testimony of Mr. Maxwell and Mr. Price, should be of opinion, that the affidavit was not sent to the Grand Jury by the defendant’s procurement, then the second inquiry was, whether the defendant caused the indictment to be prosecuted, not having probable cause to believe, that the charge therein contained was true. If the defendant had not such probable cause, then there was sufficient evidence to show, that he was influenced by malicious motives, and that malice might be implied from the want of probable cause. With respect to the second inquiry, the Judge told the jury, that he was inclined to the opinion, and so he would charge them for the purposes of the trial, that if the defendant was under a misapprehension, as to the specific charge contained in the indictment, or was wholly ignorant of its contents, he was not, in judgment of law, to be excused from the consequences of prosecuting that indictment. The main question to be decided by the jury was, whether the defendant had probable cause for preferring, or prosecuting his complaint.
    It was incumbent on the plaintiff to prove, that in preferring that complaint, the defendant acted without probable cause, and from malicious motives. In determining the question of probable cause, the jury were to consider the state of the accounts between the parties, and decide upon the questions of fact in relation to them, which were presented by the evidence. That as to the question, whether Candler actually knew Williamson or not, that was only important, from the influence which it might have upon the main controversy as to the accounts. If Candler was acquainted with Williamson, and yet denied all knowledge of him, such denial might well cast suspicion upon his assertions and claims in other particulars.
    With this exposition of the law, the'Judge submitted the cause, remarking, that if the jury should find a verdict for the plaintiff; they would be justified in awarding exemplary damages in his favor. He also instructed them, that if their verdict was for the plaintiff, it would be proper for them to state, whether it was founded on the two first counts of the declaration, or on one, and which of them.
    Under, this charge, the jury returned a verdict for twelve thousand five hundred dollars, in favor of the plaintiffs.

      Mr. G. Brinckerhoff and Mr. J. Duer, for the defendant, now moved for a new trial, and contended,
    I. That there was not any evidence, produced on the trial, to support the first count of the declaration; on the contrary, that the evidence produced, clearly showed that the defendant was not instrumental in procuring the indictment.
    II. That the evidence produced, did not support the second count; and that the action for a malicious prosecution, being in the nature of a criminal prosecution, could only be supported by proof of express malice on the part of the defendant, and a total want of probable cause for the prosecution, on his part.
    III. That the affidavit made by the defendant, to put off the trial, was made in ignorance of the form of the indictment, and could not, therefore, afford any evidence of malice, or want of probable cause.
    IV. That the verdict of the jury being upon the two first counts of the declaration, it could not be sustained, unless the evidence would support both counts.
    V. That the verdict was against the evidence; the damages were excessive, and the Judge misdirected the jury in his charge, especially in relation to the second count.

      J. P. Hall and Mr. Robert Sedgwick, contra, for the plaintiff, contended,
    I. That the jury were authorized, by the evidence, to find a verdict for the plaintiff on the first count, on the ground that the defendant procured the affidavit of Williamson to be sent to the Grand Jury.
    II. If the defendant had nothing to do with the sending of Williamson’s affidavit before the Grand Jury, still the verdict was right; I. because it was proved, that no bill would have been found without the testimony of Petit and his witnesses. 2. Because the testimony of Petit and his witnesses did, in fact, tend to prove the allegations of the indictment, and might have been produced on the trial, to establish the same, and, therefore, it must be intended, that this testimony helped to procure the indictment. 3. Because the testimony aforesaid, went to confirm the general credit of the affidavit of Williamson, and to cause the jury to believe it to be true. [Jones v. Gwynn. Gilbert’s Cases, 185. 4 Term. R. 247. 2 Stra. R. 691. Bul. N. P. 13, 2 Esp. Ni. Pri. 117, 118.]

      III. The charge of the Judge was correct in all its parts; the damageswere not excessive, nor was the verdict contrary to the evidence.
   Jones, C. J.

Delivered the opinion of the court, and, after stating the pleadings, proceeded as follows:

At the trial of this cause, the counsel for the plaintiff in the first place, produced an exemplication of the record of his indictment and acquittal, by which it appears, that the charges against him, were such as the two first counts of the declaration describe them to have been, and that he was acquitted of them by the jury.

Testimony was then offered by the plaintiff’s counsel, to show that Petit was the prosecutor, by whose agency and procurement the bill of indictment was found, and who actively pursued the prosecution against him. It appeared in evidence, that an indictment had been preferred against Williamson, on the complaint of Candler, for perjury alleged to have been committed by Williamson, in his testimony on the trial of a civil suit, brought by Candler against Petit for the recovery of a debt.

That the indictment against Williamson was brought to trial; that Candler was examined as a witness in support of the accusation, and that Williamson was acquitted ; that Williamson, after his acquittal, preferred a complaint against Candler, charging him with perjury in his testimony on the trial of the indictment against him, Williamson, and on that occasion made an affidavit of the matters in which he charged Candler to have been guilty of the perjury.

The complaint of Williamson was submitted to a Grand Jury, and dismissed.

Williamson afterwards died; and Petit, after his death, preferred a complaint against Candler for perjury on the same trial; and, in his testimony before the Grand Jury on that occasion, he stated, in substance, that Candler had obtained a judgment against him, Petit, for five thousand dollars, when the true balance due from him to Candler, was about twenty-three pounds ten shillings and fourpence sterling, and no more; that on the trial of the civil suit between Candler and himself, Williamson had proved the ad - mission of Candler, that such was the true balance, and that - Williamson was, at the instance of Candler, indicted for perjury, in testifying to that admission,—Candler, on his oath, before the Grand Jury, denying the same to be true. And he stated further, that Candler had sworn, upon the trial of Williamson, on the indictment against him, that he, Candler, did not know Williamson, and had never before seen him; whereas, he, Petit, knew Williamson to have been intimate with Candler, and had often seen them together. And he further stated, that Candler admitted to captain Griswold, in London, that he claimed only about twenty pounds of Petit, and also admitted to captain Augustus H. Gris-wold, in London, that Petit owed him about twenty pounds sterling.

The false swearing which this testimony charged upon the plaintiff, was the wilful misstatement of the true amount of his demand against Petit; and his denial of all personal knowledge of Williamson, with whom he is alleged to have been intimately acquainted.

The xvhole current of the oral evidence, adduced by his agency to the inquest, tended to the support of that accusation. No part of the parol testimony went to establish the charge, either of his denial of his supposed meeting and interview with Williamson, on the Royal Exchange, in London, 1823, or the denial of his alleged admission in conversation with Williamson, that Petit was indebted to him in the sum of only txventy-three pounds sterling, or thereabouts, which are made, by the Grand Inquest, the foundation of the bill of indictment against him.

It is apparent, then, that the charges of perjury preferred against Candler by Petit, before the Grand Jury, were essentially different from those stated in the bill of indictment found by that body. But the affidavit of Williamson was introduced into the jury room; and the two members of the jury, xvho were called as witnesses, state that it xvas acted upon by the jury as part of the evidence before them, and had an influence upon their decision. This affidavit had been previously made the ground of the unsuccessful application to which I have before adverted, for the indictment of Candler for perjury on the trial of Williamson, and remained in the possession of the District Attorney.

By it Williamson deposed, that Candler, on that trial, had sworn that he never saw him, Williamson, in the city of London, and did never admit to him that Petit was indebted only twenty three pounds sterling to him, Candler, or any thing to that effect; and that such statement so made, by Candler upon oath, was in all respects false.

This affidavit of Williamson, who died before the complaint of Petit was preferred, was sent to the Grand Jury by the District Attorney; and it became a question, on the trial of the issue, between the parties to this suit, whether Petit, the defendant, caused or procured that paper to be laid before the Grand Jury, or was conusant of its being there 1 On this point, the District Attorney testified, that when the complaint of Petit against Candler was pending before the Grand Jury, Wm. M. Price, Esq., as Petit’s counsel, in the presence of Petit, or afterwards, requested that the papers should go before the Grand Jury; that he, the witness, knew of no papers belonging to the case, but the affidavit of Williamson, and that in consequence of the request of the counsel, that affidavit was sent by him to the Grand Jury. He further stated, that it was afterwards returned to him by the jury, with directions to prepare a bill; and that upon that affidavit, and that alone, he drew the bill against Candler.

This statement comes from the plaintiff’s witness, on his examination in chief; and it conclusively shows, that the indictment was based upon the written evidence of Williamson exclusively, and not in any degree upon the complaint, or oral accusations of Petit, the prosecutor, or the witnesses of his procurement. It is equally manifest, from the testimony in the cause, that the oral examinations before that tribunal, did not sustain, and were not offered for the purpose of establishing the specific charges set forth in that indictment.

But the Grand Jury had before them both the affidavit and the oral testimony of the prosecutor and his witnesses; and the jurors may have formed their opinion of the apparent guilt of the accused, on the testimony of the witnesses, or on the combined force of that evidence and the affidavit, conjointly.

But, whatever may have been the grounds of their opinion, the District Attorney, on whom the duty devolved to draw the bill of indictment, took the affidavit for his guide, and framed the indictment solely upon the charges it preferred; and the Grand Jury, by finding it, in its present form, a true bill, have indicted the accused, as being guilty of the false swearing imputed to him by Williamson, and not for the specific perjury charged upon him by Petit, the prosecutor; and, unless Petit is chargeable with the introduction of the affidavit of Williamson, as evidence before the Grand Jury, and has thereby implicated himself in the truth or falsehood of the statement it contains, how is he to be made responsible for the injurious consequences of those charges to Candler, the plaintiff 1 I observe that Petit is not represented by any witness, as adverting to that affidavit, or as availing himself of the matters it contains, in any part of his examination before the Grand Inquest. He is silent in regard to it, and would seem to be unaware of its presence before them. The same remark applies to all the other witnesses. The affidavit, or its contents, are not noticed by any of them. Petit was a volunteer in his complaint to the Grand Jury. His avowed object was to procure an indictment against Candler, and he was actively engaged in accomplishing his purpose.

If. he had relied upon the affidavit of Williamson, as material to his success, would he not have pressed it upon the attention of the jury 1 It is difficult to reconcile his entire neglect of that paper, with the belief of his agency in its introduction as evidence ; and the more obvious solution of his silence would seem to be, the supposition of his ignorance of its production.

But the testimony of the District Attorney is relied on, as establishing conclusively the agency of Petit in the introduction of that affidavit to the notice of the Grand Jury, as evidence in support of his complaint. The testimony of the District Attorney is, that he was requested to send the papers to the Grand Jury, and that in compliance with that request, knowing of no other paper, he sent the affidavit of Williamson. At first his recollection was, that the request came from Mr. Price, the counsel. But Mr. Price, being called as a witness, stated that he had never made any such request; and the District Attorney, upon his further examination, testified that his impression was, that the request came from Mr. Price ; but that if Mr. Price did not make it, he is positively certain it must have been made by Petit, the defendant.

I assume, as the fair result of this evidence, that the request came from Petit, the prosecutor. But it was in general terms, and did not specify the affidavit as one of the papers to be sent. It does not appear that the defendant knew that the affidavit was in the possession of the District Attorney, or that any such affidavit had been made by Williamson, and there is no evidence to show that affidavits or proofs, in support of unsuccessful complaints, come into the hands of the District Attorney, and remain with him. Was the petit jury, who tried the issue, at liberty to infer from the general request, without some such additional evidence, that the affidavit was known to the defendant to be with the District Attorney, and was intended to be called for by him as evidence for the Grand Jury to act upon 1 Or, could the just inference to be drawn from that request, be so strong as to outweigh the evidence which results from the entire silence of the defendant, and his total disregard and neglect of the paper, when it was there % It was the province of the jury to determine upon the circumstantial evidence before them, whether the defendant had such knowledge, and acted with such intention in regard to the affidavit, as to render him chargeable with its contents, or not. The better opinion appears to the court to be, that the plaintiff could not, upon the evidence of the District Attorney alone, sustain his action upon the first count in the declaration, on the ground of his agency, in causing the affidavit to be sent to the jury, and his consequent liability for the truth of the charges it contains, and which the Grand Jury have incorporated in the bill of indictment, and made the grounds of their accusation.

But, admitting him not to be held answerable for that affidavit, still the indictment was found upon his complaint; and the oral testimony adduced by him, was the efficient cause that induced the Grand Jury to find it. He, therefore, was bound to show that he had probable cause to believe the evidence he gave to be true. His defence was before the jury: he probably failed to convince them of the sufficiency of his reasons for believing in the truth of the charges he preferred. Though the court might not disturb the verdict on that ground, yet, as another trial is to be granted, 'he will have another opportunity of vindicating himself from the charge, and if he succeeds, will entitle himself to an acquittal.

The evidence in support of the second count of the declaration, charging the defendant with the malicious prosecution of the indictment after it was found, knowing it to be groundless, was the affidavit of the defendant to put off the trial of the indictment at the July term of the. Court of Sessions, in the year 1828.

It appeared, by the testimony of the District Attorney, that when the indictment against Candler was called on to trial, at the July term of the General Sessions, in.1828, an application was made by the counsel who acted for Petit, to defer the trial until the return of a witness, upon the affidavit of Petit of the absence of the witness, who was stated by him to be material for the prosecution, and.was not expected to return until the middle of September, then next. That the indictment was subsequently brought on to trial, at the October term of the court, when the counsel, associated by Petit, with the District Attorney, declared themselves unwilling to proceed to. the trial, on the ground that the perjury stated in the indictment differed essentially from the perjury which the prosecution had intended to submit tó - the Grand Jury; and consequently, the evidence they had to offer on the trial, would not support the charge laid in the indictment: but they explicitly stated to the court, that if the indictment should be so amended, as to present the charges actually preferred by Petit, they were ready and willing to enter upon the trial, and distinctly offered to do so, but that the suggestion and offer were declined by Candler.

The defendant, when he entered upon his defence, called Mr. Price, who testified that he acted as counsel for Petit, the defendant, on the occasion of his preferring his complaint to the Grand Jury against the plaintiff for perjury, and spoke to the District Attorney on the subject, but did not request him to lay the affidavit of Williamson before the Grand Jury. He further testified, that he never saw the indictment against the plaintiff until the day before the trial: that he drew the affidavit of the defendant to put off the trial in July, and when he drew the same, he had not seen the indictment, and was ignorant of its contents, but supposed it had been drawn in conformity with the oral testimony before the Grand Jury. That, on the evening before the trial, Mr. Duer and himself, for the first time saw the indictment, and immediately decided that it could not be sustained by the evidence they-had to offer: that they communicated their opinion to the District Attorney, but that he persisted in his determination to bring on the cause to trial. That, on the following day, when the District Attorney moved to bring on the trial, they declined appearing as counsel for the prosecution, but distinctly offered to proceed to the trial, provided the indictment should be so altered, as to conform to the oral testimony before the Grand Jury, which offer being refused, they abandoned the prosecution of the indictment.

After the plaintiff first rested the cause, and before the defence was opened, the counsel for the defendant moved for a nonsuit; First: that if the affidavit of Williamson was the foundation of the indictment, the defendant could not be charged as the author, or instigator, of the prosecution; and it did not appear that he had testified to any fact, in support, or in corroboration of the testimony of Williamson: and if the indictment was found by the Grand Jury on the oral testimony before them, then, the bill having assigned the perjury, different from that testimony, the defendant was not chargeable with the consequences of the prosecution, caused by the mistake or error of the jury, or the public prosecutor: and that the affidavit of Petit, to put off the trial, could not implicate hinq as a party prosecuting the indictment; because the affidavit showed his ignorance, at the time, of the fact, that the indictment did not embrace the complaint he preferred and supported before the Grand Jury; and the counsel for the prosecution, the District Attorney, and the opposing counsel, must also have been ignorant, or unaware of the specific charge contained in the indictment; inasmuch as the evidence disclosed by the affidavit, and for which the trial was deferred, could not be material to the prosecution of that charge; and because, a prosecuting party a not amenable, and ought not to be held responsible for the mis-» takes or errors of the Grand Jury, in directing the form, or mode, in which the indictment is to be drawn, of of the District Attorney, in drawing up the same.

The Judge expressed his opinion, that the plaintiff could not recover on the first count of the declaration; which charged the defendant with having falsely and maliciously, and without reasonable, or probable cause, indicted and procured to be indicted, the plaintiff, for the crime of perjury, without further evidence : but, as to the second count, charging the defendant with the malicious prosecution of the indictment, be inclined to the opinion, for the purposes of that trial, that the plaintiff had offered sufficient evidence to support the charge, and he, therefore, denied the motion for a nonsuit.

Further testimony was produced on both sides, which it is not material to state; and the jury, after receiving the charge of the Judge, gave a verdict for, the plaintiff on the two first counts of the declaration, for $12,500 damages.

Several exceptions were taken to the opinion and charge of the Judge; but, as the court express an opinion on one only of the exceptions, that part alone of the charge will be noticed.

It has reference to the second count of the declaration, charging the defendant with the malicious prosecution of the indictment; and upon which point an opinion was expressed, that if in fact the defendant was under a misapprehension of the specific charge contained in the indictment, or was wholly ignorant of its contents, he is not in judgment of law to be excused from the consequences of prosecuting that indictment. In this direction the court cannot concur.

If the defendant had been apprized of the specification of the perjury, assigned by the Grand Jury, or had been chargeable with knowledge of the contents of the indictment, he would have been answerable for the consequences of the prosecution; and it may be conceded, that if he had volunteered his aid in prosecuting the indictment without knowing its contents, and without inquiry into the nature or extent óf the crime it imputed to the plaintiff, he would have been equally culpable, as if he had acted with full knowledge of the charge he was prosecuting, and would have been squally liable to answer in damages to the injured party ; because, .he grievance to the accused would have been the same; and the party thus implicating himself as prosecutor, must be considered as ntentionally adopting the charge, whether true or false, which the indictment preferred. But no such intendment can be made in this case. The opinion and charge of the Judge, assumed the fact, of the defendant’s total ignorance of the contents of the indictment, and misapprehension of the specific charge of perjury which it contained. There was material evidence tending to the conclusion, that such was in fact the case, and that the intention of the defendant was to prosecute the charges he had himself preferred before the Grand Jury, and that he supposed the indictment to have been found for those charges, and not for the false swearing, specified in the affidavit of Williamson. It is not a case of blind or indiscriminate prosecution of the plaintiff, for whatever offence he might be charged with.

The defendant’s purpose was the pursuit of a specific charge, which he had reason to believe was the foundation of the indictment, and he cannot be justly implicated as the intentional prosecutor of a different accusation, in which he had no agency, and which, upon its coming to his knowledge, he immediately disavowed.

The only proof to charge him with the prosecution of the indictment, was the affidavit made by him to put off the trial. But he produced evidence which, his counsel contended, was sufficient to show that he was ignorant of the contents of the indictment when he made that affidavit, and that he did then suppose and believe that the charges it contained, were those which he had preferred, and meant to prosecute; and the fact, which is in proof, that his counsel was ignorant of the contents of the indictment, and the further circumstance, that the evidence expected from the absent witness, was to establish the charge the prosecutor had preferred, and did not apply to the accusations made by Williamson, are justly urged by the defendant, as cogent arguments of his ignorance of the specifications of the perjury which the bill of indictment contained. Surely then, his testimony to that point was entitled to consideration, and he had a right to the opinion of the jury upon its sufficiency to establish the fact on which he rested his defence.

If the jury had been satisfied that he did not intend to prosecute the charges of perjury laid in the indictment; that he had sufficient reason to suppose, and did believe, that the indictment was for the specific offence of false swearing, which he had assigned, and that his intention was to prosecute that accusation, and none other, they ought not to have found him guilty on the second count of the declaration.

But the charge of the Judge precluded all inquiry into the circumstances under which the affidavit was made; and in effect, pronounced the act of maldng it, for the purpose for which it was used, sufficient evidence to charge the defendant with the consequences of a malicious prosecution, if the charges, contained in the bill of indictment, were groundless, and he had no probable cause for believing them to be true. We think the charge was, in that respect, erroneous; and without expressing any decided opinion upon any other point, we must, for this cause alone, set aside the verdict.

As, however, the merits have been discussed at large with much ability, by counsel, and the attention of the court has necessarily been drawn to some of the prominent features of the controversy, it is deemed advisable to state some of the general views of the court, for the government of the parties.

In the first place, it results from the opinion already expressed, that the defendant is to be permitted to defend himself against the second count of the declaration, which charges him with the malicious prosecution of the indictment, by showing that he was ignorant at the time of its contents, and did suppose and believe it to be founded upon the evidence offered by him to the Grand Jury, and that it was his intention to prosecute the charge which he had preferred, and not the charge which the Grand Jury had made the ground of their bill. But this defence must be proved to the satisfaction of the jury. It is not sufficient for the defendant to aver his ignorance of the contents of the indictment, nor are the court to be understood as intimating that such ignorance, if admitted, would of itself excuse him. He must satisfy the jury that he was misled by the act of the Grand Jury, in substituting other and different imputations of perjury, for those which he had ascribed to the plaintiff, and that his lorú fide intention was to prosecute the charges he had preferred, and not those substituted by the jury; that he acted under the conviction, that the indictment was for the charges preferred by him, and that he was warranted in that conclusion, and had no reason for distrusting its correctness. The proof lies upon him; but if he succeeds in establishing to the satisfaction of the jury, that he acted under an ignorance and misapprehension of the contents of the indictment, and upon the intention to prosecute, and the belief that he was prosecuting his own charges, and not those substituted by the Grand Jury, he will discharge himself from liability as the mere prosecutor of an indictment of which he was not the author, under the second count of the declaration.

But to establish a full defence to that count, the defendant must show, that the information, actually given by him to the Grand Jury, and the evidence laid before them by his agency, was not such as to justify them in accusing the plaintiff of the false swearing specified in the indictment. For, if the finding of the jury, as embodied in the bill, is imputable to his agency, or instigation, he is answerable, both for causing and procuring the plaintiff to be indicted, and for the prosecution of the indictment against him.

This leads us, in the second place, into an inquiry into the considerations connected with the first count of the declaration, charging the defendant with maliciously causing the plaintiff to be indicted.

Two grounds are taken in -support of this count. The first, that the affidavit of Williamson, upon which (it is said) the bill was found, was sent by the District Attorney to the Grand Jury, at the request of the defendant: And secondly, that the indictment was found upon, his complaint, and by his agency and procurement; that he is responsible, therefore, for the injuries it inflicted upon the plaintiff; and that the mistakes, or errors of the jury, in specifying the charges, and stat-the grounds of the accusation he intended to prefer, form no excuse for him, and no palliation of the malice of his prosecution.

In the first place, then, if the defendant did direct the affidavit of Williamson to be laid before the Grand Jury, with the intention and design to influence the decision ^of the Judges upon his. complaint, and induce them to indict the accused for the perjury it assigns, he is answerable for the charges the bill of indictment contains, and the jury would be warranted in convicting him on both counts of the declaration. But, whether that affidavit was sent by his procurement, wdth such intention, or not, is a question for the jury, under the direction of the Judge, upon- the- points of law it may involve. -

. The views which are taken by the court, of this branch of the case, have already been stated, and I have but a few brief remarks to add.

The general request to the District Attorney, that all the paers might be sent to the Grand Jury, certainly is evidence bearing upon the question which the jury is to consider; but, standing alone, it would not be conclusive. It admits of explanation which may weaken, or wholly destroy its force. If, for example, the request was made without any knowledge or cause for believing that the affidavit was in the possession of the District Attorney; if that affidavit bore upon it the evidence of the refusal of the former inquest to find a bill upon it, and if any satisfactory reason, having no■ reference to the affidavit, can be assigned for the general request of the prosecutor, that the papers might be sent to the Grand Jury, the fair presumption would be, that the request was made without any intention or design of bringing that affidavit to the notice of the jury, or making use of it as evidence in support of the complaint. And that presumption would be strengthened by the fact, that no reference was had to.it, and no use made of it by the prosecutor, or any of his witr nesses, in aid of the oral testimony.

But, if it shall appear that the request, though made in general terms, was understood by the defendant to refer to and embrace the ..affidavit; .if the defendant knew that the District Attorney had that paper in his possession, and that it was embraced in his request, the inference would be strong, that he intended it as part of his evidence, and the use made of it by the jury, in their deliberation upon the charge he preferred, might implicate him in the results to which it has led. The questions arising upon the introduction and use of this affidavit, are to be submitted with these qualifications, and under these aspects, to the jury, by whom the cause shall be tried, and who will receive such instruction and advice in relation to them, as the evidence may appear to the Judge to call for.

The remaining ground for implicating the defendant in the consequences of the indictment, as the author or instigator of it, under the first count of the declaration, is, the general fact, which the evidence conclusively establishes, that his information was the occasion and cause of its being found.

The two members of the Grand Jury, who have been examined, agree that they were influenced by the oral testimony, in coming to the determination to find the bill, and one of them testifies, that the indictment was founded upon that testimony, though he has no doubt that the affidavit of Williamson had some weight with the jury. The other juror, indeed ascribes much greater efficacy to that affidavit. His testimony is, that it induced the Grand Jury to enter upon the investigation of the complaint.

Whatever the agency was, which the affidavit had in the proceedings of the jury, it was sent by that body to the District Attorney, and was made by him the sole ground of the bill he drew for them; and they gave that bill their sanction. It does not appear that any part of the oral testimony was sent to the District Attorney, and his testimony is decisive, that the indictment was not founded upon that evidence.

The plaintiff’s counsel, upon this statement, strenuously contend, that the defendant having, by his complaint before the Grand Jury, and the oral testimony adduced by him, in addition to bis own oath, caused the plaintiff .to be indicted, he is answerable for the consequences of the prosecution to the plaintiff, notwithstanding the variance between the indictment and the proof; and that the defects of the indictment, or the mistake or misapprehension of the Grand Jury, or the District Attorney, in so framing the bill, as to make the specification of perjury, given by Williamson in his affidavit, the ground of the charge, instead of the testimony of the witnesses, who were orally examined by the jury, form no defence or excuse for him.

But the counsel for the defendant object, that he is not chargeable with the mistakes of the Grand Jury, and is not to be held answerable for accusations which were never made by him, or received his sanction, merely because, upon the occasion of his complaint on other grounds, the Grand Jury acted upon charges to which he was a stranger.

The force of this objection is felt by the court, and cases might occur, in which it would be decisive. Where the Grand Jury pass by the charges of the prosecutor, and indict for a different offence, upon other proof not introducéd by him; or, where the -variance of the indictment from the evidence introduced by the prosecutor, is so wide as to repel the presumption, or belief, that the accusing tribunal was influenced by his information, or acted upon his complaint, he cannot be amenable for the consequences of the indictment to the accused, in an action for a malicious prosecution; but, a discrepancy, or variance between the testimony of the prosecutor, and the specification of the charge in the bill of indictment, where the jury indict avowedly upon the complaint of the prosecutor, and for the offence he imputed to the accused, will not avail the prosecutor, .for his defence against his malicious prosecution; and he must still show, that his own complaint, and the charges he preferred, and which led the Grand Jury to indict, were true, or were made upon probable cause, to defend himself against this action. To this latter class, the present case appears to the court to belong. They cannot be unmindful of the fact, that the defendant was the primary and efficient cause of the prosecution. He preferred a complaint before the Grand Jury against the plaintiff, on a charge of perjury, upon the trial of the indictment against Williamson, and the affidavit of Williamson was sent by the public prosecutor to the jury, in consequence of that complaint, on his application for papers, and asa paper called for by him.

Then is it not literally true, that the defendant did cause and procure this indictment to be found against the plaintiff] The charges it contains, vary from the accusations preferred by him; but yet it was his complaint that led to the investigation; and the evidence, elicited by that complaint, and the inquiry consequent upon it, induced the jury to find the bill; and the affidavit, which had been disregarded by the former Grand Jury, or failed to satisfy them, must have owed the credit and consequence it acquired, with the subsequent Grand Jury, to the parol testimony of the prosecutor and his witnesses. This affidavit accused the plaintiff of perjury on the same trial; and the charges it contained, referred to the same point of the plaintiff’s testimony, with the oral statements of the defendant.

The charges preferred, before the Grand Jury, by the defendant against the plaintiftj were, that he had sworn falsely in his statement of the balance due to him from the defendant, and in his denial of any personal acquaintance with Williamson. And the charge of Williamson, in his affidavit, was, that the plaintiff had sworn upon that occasion, that he never saw Williamson in the city of London, and did never admit to him, that Petit the defendant, was indebted to him in only twenty three pounds sterling, and that such statement was in all respects false. The crime imputed, by both charges, to the plaintiff, was perjury, committed at the same trial, in his testimony to the same points, namely, his acquaintance with Williamson, and the amount of his demand against Petit, the defendant: yet, the two specifications of the false swearing, of which the plaintiff was accused, though relating to the same subject, differed so widely from each other, that the defendant might possibly be prepared to prove the one, but be unable to substantiate the other. It would be unjust to require of him, to sustain the charge which he never authorized. But the accusation he did prefer, he was bound to justify. And if the statements he made, and which led to the prosecution, were groundless, and his complaint malicious, and without probable cause, justice requires that he should respond in damages, for the injury the prosecution has done to the plaintiff, though the charges inserted in the indictment, found at his instigation, by the mistake, or misconception of the jury, are not in exact conformity to the oral testimony adduced by him in support of his complaint. If then, we-are at liberty to decide the question upon principle, we must hold, that, he ought not to be required to defend and justify the charges made by the jury, and to which he was not accessary, but that-he is bound to substantiate, or show sufficient probable ground for the charges preferred by himself. And this measure of justice may be meted, by holding him responsible for the prosecution, which he instigated and procured to be moved against the plaintiff, but admitting him to show, in his defence, that the charges he really did in truth prefer, were true, or made upon probable cause, and thus to repel the imputation of malice.

The substance of the plaintiff’s grievance is, that the defendant, falsely and maliciously, and without probable cause, procured him to be indicted, for corruptly swearing to false statements, on his examination, as a witness, on the trial of Williamson.

The proof is, that the indictment was found against the plaintiff, for perjury, on the complaint of the defendant, charging him with wilful and corrupt false swearing, in his testimony on that trial: and the discrepancy between the evidence and the pleadings, which the defendant makes the ground of his objection, is in the specification of the statement, in which the perjury is alleged in the bill found by the jury to consist. But the evidence fully proves, that the prosecution was solicited and procured by the defendant. He preferred the complaint before the Grand Jury; he produced witnesses in support of the accusation, and the oral testimony, produced by him, determined the jury to find the bill. The District Attorney expressly stated, that he should have taken no measures towards the indictment of the plaintiff, but from the earnest solicitations of Petit and Cliburn; and the two Grand Jurors, who were examined as witnesses, concurred in testifying that there would have been no bill found, without the oral testimony, before them, of the witnesses on the part of the prosecution;

Can the defendant then complain, that he is held liable to make reparation for the injury inflicted by his own agency 1 Or, shall he avail himself of the objection to the form of the indictment, to escape retribution 1 The action against him is, for causing the indictment to be found. The grievance was, the-complaintbefore the Grand Jury, and the evidence adduced in support of the charge of perjury preferred by him against the plaintiff. The hill of indictment, was the form given by the jury to the accusation, but, the gist of the action is, the false and malicious accusation of the defendant against the plaintiff, of the crime .of which he had no probable ground for supposing him to be guilty ; and it was incumbent on the plaintiff to prove, that such false, malicious and groundless charge was preferred, and that the-indictment was the result of that complaint. It is said, that the proof is variant from the charge of which the plaintiff complains. He was bound to prove the falsehood of the charges, preferred by the defendant, and his malice in preferring them. Malice would be inferrable, from the absence of probable cause for believing the charge to be true ; and it might be sufficient, in the first instance, for the plaintiff to show his acquittal, by a jury, of the charge, upon a trial on the merits, to put the defendant upon his defence, and to require him to show, that he had probable catxse for believing the accusation to be true at the time it was made.

But to entitle the plaintiff to a verdict, he must prove, that the indictment was found upon the complaint of the defendant, and by his agency and procurement. The evidence before the Grand Jury, upon which the indictment is found, must be disclosed, and it will be open to the defendant to show, that the charges, preferred by him, or which he adduced evidence to establish before the jury, were true; or, that he had probable cause for believing them to be true: And he will, upon that trial, have the full benefit of his objections, to answer for charges introduced into the indictment, on evidence to which he was not accessary. In this form of proceeding, the whole matter will come before the jury, and the ulterior questions of law to arise upon it, will, on the request of the parties, be reserved for the fxxrther considei'ation of the court.

One further question was l’aised, to which I will briefly advert.

It will be observed, that two distinct charges of perjury were prefen-ed by the defendant against the‘plaintiff: one for falsely swearing to a larger demand than he really had against the defendant; and the other for falsely stating that he had no personal acquaintance with Williamson: and the question is, whe^ ther the plaintiff must show both charges to be false and malicious, to sustain his action; or, whether the proof of the falsehood and ma];ce of either is sufficient; and on this point, the opinion of the court is, that the proof, by the defendant, of the probable cause for believing the plaintiff to have sworn falsely, in denying his personal acquaintance with Williamson, would be no defence for him, against the legal consequences of the falsity and malice of the charge against him, of perjury in his testimony, as to the state of his accounts with the defendant. To secure him a complete defence from them, against the plaintiff’s action, as respects that charge, he must prove to the satisfaction of the jury, that he had probable cause, at the time he made it, to believe it to be true ; and if he fails in hisj justification of that charge, though he may succeed in justifying the other, he will be liable to damages for the injury to the plaintiff, by the prosecution of the charge he is unable to justify.

New trial granted.

[D. D. Field, Atty. for the plff. G. Brinkerhoff, Atty. for the deft.]

Note.—Upon the new trial, which was conducted before the Chief Justice, upon the principles laid down in the preceding opinion, the plaintiff again obtained a verdict.


source: Caselaw Access Project

author: Oakley, J.

license: Public Domain

text:
    Benjamin Corlies, Joseph W. Corlies and James Mabbit versus James Gardner and George Gardner.
    The plaintiffs, (auctioneers,) sold to the defendants a quahtity of goods, by auction, to be paid for in an approved endorsed noto, at six months. The plaintiffs having delivered the goods, demanded the note, which being refused, they immediately commenced an action for goods sold and delivered. The defendants contended that the action should have been special, for the non-delivery of the notes, and that indebitatus assumpsit would not lie until the credit had expired.
    Held that the sale and delivery of the goods were conditional, and that the plaintiffs upon the non-compliance with the conditions of sale, by the defendants, might reclaim their goods, or treat the sale as an absolute one, without credit, and bring their action for the price without delay.
    Assumpsit for goods sold and delivered. The plaintiffs proved, at the trial, the sale and ^delivery of the goods to, the defendants, (amounting to $287.32) on the 23d of March, 1829. That the goods were sold by auction, and that the terms of sale were an approved endorsed note, at six months. On the 29th of March, the plaintiffs called upon the defendants for the note, which they refused to give, and on the day following, this action was commenced.
    The plaintiffs also proved that when notes were not given according to the stipulated condition, the sale was deemed by them, a sale for cash.
    Upon this state of facts, the defendants moved for a non-suit, upon the ground that the action for goods sold, had been prematurely brought. That the remedy of the plaintiffs, if they had a cause for action, was upon the special agreement; that the action should have been for the non-delivery of the note, and that they could not recover for goods sold, until the time of credit had expired.
    The Chief Justice (before whom the cause was tried) denied the motion, and a verdict for $287 32 was returned in favor of the plaintiffs. The defendants having excepted to the opinion of the Chief Justice, now moved to set aside the non-suit, and for a new trial.

      Mr. Joseph Wallis for the defendants contended.
    I. That the action was prematurely brought for goods sold and delivered, as the credit for which they were sold had not expired.
    II. That the contract being executory, the plaintiffs ought to have declared specially for the non-delivery of the note, as the agreement made, at the time of the sale of the goods, was open between the parties, and still in force.
    III. That the plaintiffs were not bound to deliver the goods, until an approved note was given ; having delivered the goods, they agreed to the time of credit upon which they were sold ; consequently they had no cause of action until the expiration of the credit, except on the special agreement, for not delivering the note.
    IV. The evidence of the plaintiff’s custom, in considering sales, for an approved note, when the note is not given, as cash sales, ought not to have been admitted, as it was not shown that such was the general custom among auctioneers or merchants ; neither was it proved, that the plaintiffs gave such notice to the buyers who attended their sales. [4 East. 147. 4 Bos. and Pul. 330. Laws on Assump. 6. 18. J. R. 451. 1 Cowen’s R. 378. 9. 4. Ib. 564.]

      Mr. B. Clarke, contra, for the plaintiffs, contended.
    I. That the action was properly brought for goods sold and delivered,—the same having been sold at auction, and the defendants having refused to avail themselves of the privilege of giving an approved endorsed note.
    II. The defendants having, on demand, refused the note, they disaffirm any agreement which might be implied, from the terms of sale, and entitle the plaintiffs to declare generally.

      III. Sales at auction, upon the terms upon which these goods were sold, are considered cash sales, in case the purchasers do not avail themselves of their privilege of giving approved endorsed notes.
   Oakley, J.

It is no doubt the general rule, that when goods are sold upon a special agreement, which continues executory, no general indebitatus assumpsit will lie. In the present case, however, it is clear from the evidence, that the sale was, in truth, considered a cash sale, unless the buyer should give’ an endorsed note, at six months. The credit which he was to have, was on con dition that he gave the security, and the delivery of the goods was upon the same condition.

Under these circumstances, there can be no question, but that the plaintiffs had a right to reclaim the goods, if they remained in the hands of the defendants, upon their refusal to comply with the conditions of the sale; or to treat the sale as an absolute one, without credit, and to bring their action for the price.

In the cases cited by the defendant’s counsel, the sale and delivery of the goods were absolute, but to be paid for in a peculiar manner, at a subsequent period. In this case, the "sale and delivery were strictly conditional; If the defendants refused to perform the condition, and still kept the goods, they were bound to pay for them immediately.

Motion to set aside the non-suit, and for a new trial denied.

[B. Clarke, Att’y for the plffs. J. Wallis, Att’y for the deft.]


author: Per Curiam.

text:
    Thomas J. Barrow versus Paul A. Sabbaton.
    Double pleas must be signed by counsel,—and if a default be entered against a defendant, who has served double pleas, without the signature of counsel^ the court will not set it aside, except upon an affidavit of merits.

      Mr. Mulock, in behalf of the defendant,
    moved to set aside a default entered against him in this cause. He read an affidavit, showing that the default had been entered after the defendant’s pleas had been received by the plaintiff’s attorney. It appeared that the pleas served were double, a special plea being added to the general issue; but they were not signed by counsel. The attorney for the plaintiff had, therefore, treated them as a nullity, and entered a default for want of a plea.

      Mr. D. B. Talmadge, for the plaintiff,
    offered to waive the default, if the defendant would file an affidavit of merits; but this was declined by the defendant, Mr. Talmadge then contended that the pleas should have been signed by counsel to be regular, and that the court would not set aside the default, except upon proper terms. [He cited Dubois v. Philips, 5 J. R. 236, Satterlee v. Satterlee, 8 J. R. 327. Steward v. Hotchkiss, 2 Cowen’s R. 634. Brewster v. Hall, 6 Ib. 34.]
   Per Curiam.

By the practice of the Supreme Court, double pleas must be signed by counsel, and those filed by the defendant, are irregular for the want of such signature. The court, in the exercise of its discretion, may, however, set such defaults aside, and will generally do so upon proper cause shown. If these pleas are interposed for delay merely, they are not entitled to favor, and that they are so, the court are compelled to infer, from the fact, that the defendant’s counsel refuses to accept the terms proffered by the plaintiff, and file an affidavit of merits. If he is not willing to give this test of the sincerity of his defence, the court will not interpose to correct an irregularity, for his benefit.

Motion denied, with costs.

[E. Curtis, Att'y for the plff. W. Mulock, Att'y for the deft.]


text:
    Leonard Jones versus Jewett Archer.
    Where a justice, having decided in favor of the defendant, upon the merits, taxes his costs, but includes in them a part of the costs of the plaintiff, and gives judgment for the whole amount, the judgment may be reversed as to the costs, and affirmed as to the residue.
    Certiorari to review a judgment of one of the assistant justices, in and for the 12th Ward of the city of New-York.
    The plaintiff, in error, brought an action of assumpsit in the court below, against the defendant, in error, and declared for work, labor, and materials. At the trial of the cause, several witnesses were introduced by each party, and the evidence upon the merits was contradictory. The justice, after weighing the testimony, decided in favor of the defendant; and upon taxing the costs, he included therein several items of the plaintiff’s costs, amounting in the whole to $4.14. The plaintiff, thereupon, brought the cause before this court by a certiorari, and Mr. W. H. Elting, in his behalf, insisted that the judgment was erroneous, both on account of the error as to the costs, and as being against the weight of evidence. [He cited Dennison v. Collins, 1 Cowen’s R. 111. Field v. MeVickar, 9 John. R. 130.]

      Mr. Cannon, contra,

    contended that the judgment was according to the evidence; but if it was not, that this court would not undertake to reverse it, where the testimony wp contradictory. He insisted that all the costs were to be taxed against the losing party, as a matter of course.
   Per Curiam.

The justice having given judgment for the defendant below, on the merits, taxed his costs, and included in them the costs of the plaintiff, or a part of them, and rendered judgment for those costs in favor of the defendant. This was erroneous, on the authority of the case of Dennison v. Collins, [1 Cowen’s Rep. 111.] In that case, the judgment was affirmed as to the damages, and reversed as to the costs, on the ground that one item in the bill was illegally charged.

Upon the merits, in this case, the justice decided that the plaintiff ought not to recover. There was evidence to support that view of the case, and we do not reverse a justice’s judgment, upon the ground that he has decided against evidence, unless the mistake is very clear.

Judgment reversed as to the costs, and affirmed as to the residue.

[W. H. Elting, Att'y for the plff. J. M. Cannon, Att'y for the deft.]


author: Oakley J.

text:
    Abraham Mitchell versus John Roulstone and Moses P. Stickney.
    Where two or more, are charged^as partners, articles of agreement, between them, are admissible in evidence, (although not conclusive,) for the purpose of showing what the true nature of the connexion between the parties was, at the timelt commenced ; but their declarations made at a subsequent period, would not be admissible.
    If evidence, competent at the time it is offered, be objected to, and the objection overruled, become incompetent by subsequent proof, the objection must be renewed, or the party mating it will be deemed to have waived his right of excepting.

      A joint assumpsit, against two defendants, cannot be supported without evidence, expressed or implied, that both have assented to the contract. If one of the defendants is liable to the plaintifij and the other admits a joint liability with him, such admission, (although conclusive as to the party mating it,) is not sufficient to charge upon the first defendant a joint liability with the second. To permit the confessions of the latter to implicate the former, might be to make a contract for him, to which he never assented, and its practical effect might deprive Mm of an important witness. ,
    Assumpsit to recover of the defendants certain sums of money alleged to have been loaned to them, as partners. Plea, the general issue. At the trial, the plaintiff proved satisfactorily, that he had loaned to the defendant, Stickney, the sum of 520 dollars, at two different periods; and that Stickney promised to repay the money, thus borrowed, as soon as Roulstone, (who was absent at the time,) should return to town.
    It appeared by the evidence, on the part of the plaintiff, that Stickney kept a jeweller’s shop, in the Bowery, over which was a . sign, having his name thereon, as “ agent." That he was the son-in-law of Roulstone, (who kept a riding school,) had represented himself to be a partner with him, and that the money borrowed , of the plaintiff, was appropriated by Stickney, for the benefit of the concern managed by him, and that Stickney was insolvent. ^ not appear, that Roulstone had any knowledge of the representations made by Stickney, as to the partnership, or that he had given countenance to any such pretension. The plaintiff introduced some evidence, to prove a general understanding in the mercantile community, that the defendants were partners ; and upon this testimony rested his cause.
    The defendants for the purpose of defeating the action, at least, in its present form, introduced an instrument under seal, bearing date the 4th day of June, 1828, executed by the plaintiff and a number of others, the creditors of the defendants, wherein they had covenanted with Roulstone, that if he would pay them fifty per cent, of the amount of the claims set opposite to their respective names, out. of the proceeds of'the jewelry, which had been in the possession of Stickney, or from any other source ; and would divide the proceeds of said jewelry, in case it should amount to more than 50 per cent., upon said claims, among said creditors, they, (the said creditors,) would release and discharge him from the various sums specified, “ and from all debts contracted by one Moses P. Stickney, as agent for lhe said John Roulstone.”
    The defendants also introduced, in evidence, a certain agreement, under seal, executed by one Andrew B. Stimpson of the first part, John Roulstone of the second part, and Moses P. Stickney of the third part, bearing date the 9th day of August, 1826. This agreement set forth, in substance, that Stickney had been engagedin the business of buying and selling jewelry for Stimpson,. as his agent, receiving a salary for his services, and accounting for the profits of the business; Stimpson furnishing the necessary capital, and making a ^proper allowance for expenses; Sic. That Stimpson had agreed to sell, and had sold to Roulstone, all his interest in said business, for a sum specified; that Roulstone constituted Stickney his agent, for the purpose of buying and selling jewelry on his account, and agreed to pay him a salary of 1000 dollars per annum for his services, Stickney covenanting on his part, to use his best exertions to conduct the business prosperously for Roulstone, and account to him for all sales, disbursements, &c.
    The counsel for the plaintiff objected to these covenants, as evidence at the time they were offered, but their objection was overruled by the Chief Justice, (before whom the cause was tried,) and the instruments were laid before the jury.
    The defendant then introduced several witnesses to prove, that it- was generally understood among those who had dealings with Stickney, that he was but an agent for Roulstone, and that they were not considered to be partners.
    Charles Walker, Esq., being also called by the defendants, as a witness, testified that he was the counsel for Roulstone, at the meeting of the creditors, when the aforesaid agreement and release between them and Roulstone was executed; but he refused to disclose what took place at that meeting, as it was called for tire purpose of a compromise, and under a pledge, that no part of the transaction should ever be used by one party against the other, as evidence.

    Upon this state of facts, the Chief Justice charged the jury, that as the loans from the plaintiff to Stickney were fully proved, and as it also appeared, that the money borrowed had been used for the benefit of Roulstone, by a person fully authorized to obtain it, his liability to the plaintiff for the amount of the loans, was fully established; but that the liability of the defendants,fin the present action, depended upon the question, whether Stickney was a partner with Roulstone, or his agent merely. That the admissions of Stickney, that he was a partner, though proved, were not sufficient to charge Roulstone, jointly with him, unless the jury were satisfied, that the latter had made the same admissions also. That the evidence, as to the general reputation of a partnership being contradictory, they were to weigh, and decide upon it. That "the articles of agreement, between Stimpson and the defendants, furnished evidence to show the real nature ofStickney’s powers, and to prove, also, that he was an agent merely, and not a partner. That this evidence would be conclusive, if the agreement represented the facts truly, at the time of its execution, unless the defendants had, by their subsequent acts and admissions, held themselves out to the world as partners, or induced the plaintiff to trust them as such. That the agreement and release, executed by the plaintiff, (if admissible as evidence,) contained an on his that the relation between the de fendants, was that of principal and agent, and not that of partners, although he might, at a previous period, have supposed them to be partners. This admission, therefore, was not conclusive, as to the circumstances under which the debt was contracted, but might merely refer to a state of facts, ascertained afterwards, which would not protect the defendants, if they had both held themselves out as partners, or induced the plaintiff' to give them credit as such. If the jury believed thedefendants to be partners in fact, or if they had both held themselves out as such, or if Stickney had made such representations, with the knowledge and assent of Roulstone, then they were charged to find a verdict for the plaintiff". But if they believed' Stickney to be the mere agent of Roulstone, and the latter had not committed himself, as a partner, either by his acts or admissions, then they were to find for the defendants.
    The jury returned a verdict in favor of the defendants, and Mr. J. Anthon, for the plaintiff,
    now moved for a new trial. He contended, I. That the articles of agreement, between Stimpson and the defendants, should not have been received in evidence, being res intercilios.

    II. That the Judge ought to have charged the jury, that the conditional release executed by the plaintiff) having been made upon mutual concessions, by way of compromise, was not admissible, as evidence, for any purpose. [1. Phil. Ev. 83.]
    III. As Roulstone was liable to pay the plaintiff’s demand, (a point conceded at the trial,) Stickncy’s admission of his own liability would make him responsible also, and thus established a joint liability against both. [1. Esp. N. P. R. 29. 4 Stark, Ev. 1071. 10 J. R. 66. Whitney v. Ferris.]

      Mr. George Sullivan, contra, for the defendants, contended,
    that the agreement was admissible, to show the nature of the contract between the defendants, at the time it took effect, and for this purpose only was it offered. That the release was clearly admissible, at the time it was offered, as it contained an important admission made by the plaintiff. If it became liable to any objection afterwards, it was occasioned by the facts disclosed by Walker. No exception was taken at the time the objection presented itself, and the plaintiff is too late to take it now. If the representation made by Stickney is conclusive against Roulstone, then any witness, whose testimony is vitally important to the defendant, may escape testifying for him, by admitting a liability, or interest in himself. In this case, Stickney is an important witness, to show the true character of the loans in question, and the action is brought against both, for the express purpose of shutting out his evidence. [8. Price's R. 122. 4. Stark's Ev. 38.]
   Oakley J.

This is a motion for a new trial, by the plaintiff, on a case made. The first objection raised, is to the admission, in evidence, of a certain article of agreement, between the defendants and one Stimpson, dated the 9th of August, 1826. The action was brought to charge-the defendants, as partners, and the agreement in question, was offered, to show what in fact was the nature of the connexion, in business, between them. For this " purpose it was competent, though by no means conclusive evidence. The declarations of the defendants, at a period subsequent to the commencement of their business, could not be admitted; but the agreement, in pursuance of which the business itself was commenced, has always been received as competent.

The defendants also offered in evidence, an instrument in - writing, signed by the plaintiff, dated on the 4th of June, 1828, in which the defendant, Stickney, was stated to be the agent of Roulstone. This was objected to by the plaintiff, but admitted by the Judge. No ground for this objection appears, by the case, to have been stated at the time it was made, and the paper, on its face, was clearly competent evidence. It contained an acknowledgment, that Stickney was merely the agent, and, of course, not the partner of Roulstone, and being signed by the plaintiff, was manifestly admissible, as his act. The objection to its admission, was, therefore, properly overruled. In a subsequent stage of the trial, it was proved, that this paper was signed by the plaintiff and others, creditors of Roulstone, upon an attempted settlement of their demands, and under an understanding, that no admissions, or statements, made by either party on that occasion, should be given in evidence. It does not appear, however, that when the - . , . . , . . proof was given, or at any subsequent period of the trial, the Judge was called upon to exclude the paper in question, or that his attention was directed to the effect of this proof upon the question of its admissibility. Under these circumstances, I think the plaintiff cannot now be permitted to object, that the Judge erred in his charge, in submitting the paper to the consideration of the jury. The plaintiff should then have excepted to that part of the charge. If he had done so, there would have been an opportunity (if the objection had been considered tenable) of withdrawing the paper from the jury. A party cannot suffer evidence to be submitted, without question to the jury, take the chance of their verdict being and in his favor, afterwards apply for a new trial, on the ground of an objection made, for the first time, upon the argument of the case. The correct rule is, that if evidence is competent, at the time it is objected to, and the objection is overruled, and it is rendered incompetent by subsequent proof in the course of the trial, the objection must be renewed, or the party must be held to have waived the right to object.

The third and principal objection made by the plaintiff is, that the Judge erred in charging the jury; that the action could not be maintained, on the ground of the admission of the parties, of the fact of partnership, unless they were satisfied that the defendants had both made such an admission. It is conceded, that Roulstone is responsible to the plaintiff for the demand, for which the suit is brought, and there is abundant evidence in the case, to show that Stickney admitted, and represented himself to be a partner of Roulstone. Under such circumstances, the plaintiff contends he is entitled to recover against both, and he relies, for the support of this position, on the case of De Berkom, v. Smith & Lewis, [1. Esp. Rep. 29.] In that case, Lord Kenyo'n is reported to have said, that though in point of fact, parties are not partners in trade, yet “ if one so represents himself, and by that means gets credit for goods for the other, that both shall be liable.”

I cannot accede to the correctness of this principle, in the general terms in which it is laid down, if indeed it can be considered as applicable to the facts, in the case then before his lordship. If the party representing himself to be a partner, does so with the knowledge of the other, or if the party obtaining the goods, knows that they are delivered on the faith of a representation by another,, that he is a partner, the law may well raise a joint assumpsit against both, though no partnership in fact exists. But I apprehend, that a joint assumpsit, against two defendants, can never be supported without evidencé, express or implied, that both have assented to the contract. In the present case, the admission by Roulstone, that he is liable to the plaintiff, is by no means evidence that he is liable together with Stickney. It establishes an individual, not a joint assumpsit. The admission by Stickney, of the fact of copartnership, although conclusive as to him, cannot effect the other defendant; for it is well settled, that the confessions or declarations of one defendant, that he is a partner, cannot be used to establish the fact of partnership against another. [Whitney v. Ferris and others, 10. J. R. 66. 4. Stark’s Ev. 1072.] To permit the confessions of Stickney to implicate Roulstone, as a partner, would be making for the latter a contract to which he never assented, and the practical effect might be, (and indeed it is suggested, that such is the case in the present instance,) to deprive them of the benefit of using Stickney as a witness. A witness is never excluded as interested, on the ground that he has admitted his interest, as that might lead to fraudulent and collusive consequences ; and the same principle may fairly be applied, to admissions of a joint liability with others, as the same consequences might follow.

I am of opinion, therefore, that there was no error, in the charge of the Judge, in this respect, and the motion for a new trial must be denied.

Motion for a new trial denied.

[Judah, Atty. for the plff. C. Walker, Atty. for the defts.]