(77 Hun, 131.)

#### REYNOLDS v. HAYWOOD et al.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Malicious Prosecution—Evidence—Second Attempt to Indict.

Where the prosecution, consisted in causing plaintiff’s arrest on a criminal charge, and a subsequent presentation to the grand jury, which dismissed the case, plaintiff may show that, before the action, defendant made a second attempt to indict, on the same charge.

2. Same—Statements of Officer.

Where defendant placed a warrant to arrest plaintiff in the hands of an officer, and directed him not to execute it in case plaintiff would pay a certain debt, plaintiff may show what the officer said at the time of the arrest as to his instructions from defendant.

Appeal from Chautauqua county court.

Action by Charles H. Reynolds against Albert Haywood and others, executors of the will of Rufus Haywood, deceased. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, defendants appeal. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

George Barker, for appellants.

J. G. Record, for respondent.

LEWIS, J.

This action ivas brought against the decedent, Rufus Haywood, to recover damages for malicious prosecution, in causing the arrest and imprisonment of the plaintiff upon the charge of grand larceny. Plaintiff recovered a ATerdict. The defendant, Haywood, after the recoArery of the verdict, died. By an order of the court, his executors were substituted as defendants, and brought this appeal. The appellants rely for a reversal of the judgment upon exceptions taken by the defendant at the trial to the reception of evidence offered by the plaintiff. But one cause of action for malicious prosecution was stated in the plaintiff’s complaint, and that *468consisted in the defendant’s causing the plaintiff’s arrest and examination before the magistrate on the charge of grand larceny, and the presentation thereafter of the same charge to a grand jury in the county, the complaint being there dismissed.

The plaintiff was permitted, over the objection of the defendant, to show that, after once presenting the charge against the plaintiff to a grand jury of the county, the defendant again presented the same charge against the defendant to another grand jury. This evidence was objected to “on the ground that it is not alleged in the answer.” It is claimed by the appellants that notwithstanding it appears that in making the objection the word “answer” was used, instead of the word “complaint,” we must assume that the objector intended to use the word “complaint,” and that it must have been so understood by the court at the time. Assuming this to be so, it is quite doubtful if the form of the objection was such as to avail the defendants. It was competent to show, on the question of malice of the defendant, that, at a time prior to the commencement of the action, he made a "second attempt to indict the plaintiff. It does not appear from the record when the action was in fact commenced; and, the ground of the objection not being that the second appearance before the grand jury was after the commencement of the action, it must be held that the objection was not sufficiently specific to avail the defendant upon appeal.

The defendant placed the warrant for the arrest of the plaintiff in the hands of the officer, Lake, and directed him that, in case he could induce-the plaintiff to pay or secure a demand the defendant had against the plaintiff, he need not execute the warrant. Plaintiff was permitted, against the objection of the defendant, to prove what the officer, Lake, said to the plaintiff and others who were present at .the time of the arrest as to what he was instructed by the defendant to do, or not to do, provided the plaintiff would pay or secure the debt. Most of the evidence complained of was competent, as bearing upon the question of the defendant’s malice. He .was manifestly engaged in an attempt to use the criminal process to enforce the collection of a civil debt; and it was .competent to show what his agent, Lake, said and did in carrying out his instructions.

Lake, in the course of the conversation, made statements as to the kind of man Haywood was, that were not competent evidence; but no specific objection was made to this evidence, no grounds of the objection were stated, and therefore cannot avail the defendants upon this appeal.

The evidence that Haywood appeared to be angry at the trial of a civil action between the parties was not material, but it was not of sufficient importance to justify a reversal of the judgment. The judgment and order appealed from should be affirmed. .All concur.