#### ANDERSON *v.*BUCHANAN.

Malicious prosecution — errors in the proceedings — care—probable cause shown by proof of guilt after acquittal.

The defendant in a suit for malicious prosecution, cannot allege in justification or excuse his own errors in carrying on the prosecution. .

Case will lie for a malicious prosecution, if the prosecution were malicious, without probable cause,and is atan end.

The guilt of a defendant jn such case may be shown as probable cause for the prosecution, notwithstanding the acquittal of the plaintiff.

Error to the Common Pleas. Buchanan sued Anderson for a malicious prosecution, and upon not guilty, recovered a judgment *726for.$300: The charge alleged in the declaration to have been maliciously preferred, was of perjury by Buchanan in deposing before justice Truesdale, ‘that he met Anderson at the head of his lane, which coulij. be no other time than the 24th of December, 1826, and that he could not and would not answer the proposals of the session of Mount Jackson to him, and that he neither read nor heard read the said Anderson’s-answer to said proposals, that we yet 'consider Anderson a member of our. church'.’ This statement Anderson made affidavit, he believed false, and thereupon obtained process, &c.

*Giddings*and *Wade,*for the plaintiff in error,

claim to reverse the judgment, for the following causes, viz:

1. The prosecution was for no offence against the laws of this state.

2.. The affidavit of Anderson charged no crime against Buchanan.

4. That the affidavit on which the prosecution was grounded, is not set out in full in the declaration, so that the court could judge of its sufficiency. -

4. The affidavit is insufficient, as it does not charge the words falsely-sworn, ,to have been material to any issue.

6. That the suit should have been *trespass*— not *case.*

*Whittlesey, Newton,"*and *Loomis,*contra,

cited 1 *Ch. PL*127; 4 - *T.R.*247;' ,2 *Wilson R.*302.

Wright, J.

In the four first errors assigned, the present plaintiff seeks to avoid responsibility for his malicious prosecution of Anderson, on account of the want of technical precision in the preliminary steps which he took to subject him to criminal punishment. He commenced 'and carrie.d on the criminal charge in his own way, and when defeated, would avoid responsibility by alleging his own mistakes! A convenient method of escaping responsibility — which secures a malicious man the opportunity of wreaking his vengeance with impunity, because he so shaped his proceedings, that the law would adjudge them insufficient,, if objected to. In no view can it be a defence to this action, that the proceedings in the criminal malicious prosecution were erroneous. If no crime was committed, why did Anderson prosecute Buchanan, or if the oath taken was no perjury, why prosecute him for perjury? If crime was-committed, that would be *probable*cause and justify the prosecution, notwithstanding the acquittal. He cannot set up his. own irregular acts of oppression to screen himself from liability — much less require of the plaintiff in this action to set them out: (2 *Wils. R.*307.)

*727The fifth error assigned, presents the simple question, whether jn «case one be maliciously prosecuted by another for a crime without any cause, he can have redress by action on the case? To sustain an action on the case for a malicious prosecution, malice .and the want of probable cause must concur, and the prosecution be at an ■end. This must be alleged, and is so in this case. The injury was consequential upon the prosecution, and is so alleged — that lays a .proper ground for case.

The judgment is affirmed.