This was an action by the appellee against the appellant and another for malicious prosecution. The defendant answered by a general denial. A trial by jury terminated in a verdict against the appellant for eight hundred dollars, and in favor of the other defendant. Th.e appellant moved the court to grant a new trial for the reason, among others, that the evidence was not sufficient to justify the verdict of the jury. This motion was overruled and judgment rendered against the appellant for the amount mentioned in the verdict and costs.
The errors assigned, among other questions, present that relating to the correctness of the ruling of the court in refusing to grant a new trial.
The complaint charges that the appellant, maliciously, and without probable cause, procured the appellee to be indicted for a failure to comply with the estray law; that he was arrested, gave bail, and that the indictment was quashed on his motion, and alleges damages sustained by him in consequence of the prosecution.
The evidence shows that the appellant was foreman of the grand jury which found the indictment against the appellee, and all that he did and said in favor of finding the indictment was done and said as such grand juror. Some of the witnesses testify that he was active and zealous in favor of finding the indictment; that he requested the deputy prosecuting attorney to hunt- up the law relating to the offence before the indictment was agreed upon, and that afterward he urged the prosecuting attorney to draw up the indictment.
Other witnesses thought that he was not more active in that than in other cases which came before the grand jury.
We are of the opinion that the judgment cannot be sustained. “ During the' whole of their proceedings, the grand jury are protected in the discharge of their duty, and no action or prosecution can be supported against them in consequence of their finding, however it may be dictated by malice, or destitute of probable foundation.” 1 Chit. Crim, Law, 323. The doctrine on the subject is laid down in *358X Hawkins Pleas of the Crown, p. 349, ch. 72, sec. 5, as follows: “Yet it seems to be certain that no one is liable to any prosecution whatsoever, in respect of any verdict given by him in a criminal matter, either upon a grand or petit jury. For since the safety of the innocent, and punishment of the guilty, doth so much depend upon the fair and upright proceeding of the jurors, it is of the utmost consequence that they should be as little as possible under the influence of any passion whatsoever. And therefore lest they should be biassed with the fear of being harassed by a vexatious suit for acting according to their consciences (the danger of which might easily be insinuated, where powerful men are warmly engaged in a cause, and thoroughly prepossessed of the justice of the side which they espouse), the law will not leave any possibility for a prosecution of this kind.”
Few persons would be willing to act as grand jurors, if, upon the testimony of their fellows or others who are entrusted with the performance of duties in connection with their deliberations concerning the manner in which they discharged their duties, whether with too much activity and zeal or not, they would be liable to be subjected to an action and to the payment of damages. Doubtless, if we should depart from the rule which has come down to us approved by the wisdom of ages, we should soon appreciate more fully the wisdom of the rule and the reasons upon which it is founded. Let it be conceded that grand jurors are sometimes influenced by improper motives, which it is believed is not often the case, and still the evils which would result from any other rule would be far more frequent and pernicious than those resulting from this.
There are several other questions presented by the assignment of errors, which would require serious and thorough examination before we could affirm the judgment. We are so fully satisfied, however, that the judgment should be reversed upon the evidence, that we think it not necessary to consider the questions to which we have alluded.
*359The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial, and for further proceedings in accordance with this opinion.