On Petition for a Rehearing.
Downey, J.A petition for a rehearing has been filed in this case, in which it is contended with great apparent earnestness that the fact that the appellant was a grand juror must have been specially pleaded, in order to entitle him to the protection of the law, and that if such was not the case, there was no legal evidence that he was a grand juror.
In support of the first position reference is made to sec. 66 and sec. 91 of the code. The first named section declares that defences, except the mere denial of the facts alleged by the plaintiff shall be pleaded specially; and the last named section declares that under a mere denial of any allegation no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove.
We cannot perceive the force of the citations in support of the position for which counsel contends. The plaintiff alleges in his complaint that the defendant instituted the prosecution against him, first, maliciously; and, second, without probable cause. These two propositions, with the other necessary fact or facts, he was bound to prove under the general denial; and, according to the section of the code last quoted, the defendant might give any evidence which tended to negative either or both of them. In Ammerman v. Crosby, 26 Ind. 451, where there was no answer except a general denial, this court said: “This suit is for a malicious prosecution against the defendant, for causing such arrest and imprisonment. In order to sustain the action, it was necessary that the prosecution should have been instituted without probable cause, and also that it should have been done maliciously. The want of probable cause was not sufficient without malice, nor would malice be sufficient if there was probable cause. The jury may infer malice from the want of *360probable cause, as a matter of fact, but no such, inference arises as a matter of law. Any evidence tending to show probable cause, or rebut any inference or proof of malice, would be legitimate. Newell v. Downs, 8 Blackf. 523; Wilkinson v. Arnold, 11 Ind. 45.” Before the enactment of the code, such evidence was admissible under the general issue. 1 Chit. Plead. 491; Radde v. Ruckgaber, 3 Duer, 684; Black v. Sugg, Hardin, 556; Stone v. Stevens, 12 Conn. 219; Rost v. Harris, 12 Abbott Pr. 446; 2 Greenl. Ev., sec. 457.
J. McCabe, for appellant. J. Buchanan, for appellee.As to the question of evidence, it should be enough to say that not only was there no objection to the evidence adduced to show that the defendant was a grand juror and the foreman of the grand jury; but the evidence, consisting of the indictment, with the indorsement of the defendant thereon as foreman, and the evidence of several witnesses to the fact, was introduced by the plaintiff, as a part of the evidence to make out his case. It should not now be contended that the best evidence was not produced of which the case would allow, if this evidence should be held to be secondary. We are referred by counsel to the case of The President, etc., of The C. & W. R. R. Co. v. Wright, 5 Ind. 252, and 1 Smith Lead. Cas. 765 and 773. But these authorities refer to cases of trespass, where the matters of defence were by way of confession and avoidance, and not cases like the one under consideration, where the fact to be proved or disproved was one of the. essential facts to be made out in order to sustain the plaintiff’s action.
The petition is overruled.