#### SAMUEL S. SMITH v. THOMAS S. DEAVER.

Whore it was proved that a forgery had been cottfinittod in a note, afi'd that at the same time, and in the same ink, and by the same hand, an inter-lineation had been made in a warrant, and it was proved and admitted on a trial against B for forgery, that either A or B had committed the fore:cry, it was Held that the oath of B, denying that the interlineation made in the warrant, was in his hand writing, was material to the issue, and that if lie swore falsely in that respect, it was perjury.

Action on the case, for a malicious prosecution, tried before Manly, J., at the Spring Term, 1859, of Madison Superior Court.

The declaration was for maliciously suing out a warrant to arrest the plaintiff for perjury, alleged to have been committed on the trial of II. B. Deaver, ou a charge for -forgery.

The forgery consisted in changing the date of a promisory note from 1838 to 1839, intending thereby to avoid the effect ■of a receipt which the maker held against it.

The warrant which had been issued on this note, was interlined with the words, “ to the use of Samuel Smith,” and 'there was proof on the trial for forgery-, reproduced on ibis tn'ial, tending to show that the interlineation iü the war *564 rant, and the forged part of the note, were done by the same hand, and by the same shade of ink. Smith, the plaintiff, swore on the trial for forgery, that the interlineation was not %n Ms hand writing.. Proof was introduced to show that it was in his hand writing. It was also alleged, and there was proof to that point, that the interlineation and forgery were done by the defendant, II. B. Deaver, and it was admitted on tile trial and argument of the cause, that one or the other of the parties, (Smith or II. B. Deaver,) had committed the crime.

The introduction of proof as to the oath taken and its falsity, was objected to on the ground that the false statement was not pertinent or material to the issue on the trial for forgery, but the evidence -was admitted, and the plaintiff’s counsel excepted. Other proofs were introduced to show that one or the other of these parlies had committed the forgery, or that they had done it jointly, and that the plaintiff had sworn falsely in the particular stated.

The plaintiff’s counsel contended that the oath taken was true. 2. If untrue, Deaver was guilty of forgery, and the oath was immaterial, and in either case, the defendant had not probable cause.

The Court instructed the jury, that if Smith the plaintiff, committed the forgery, and on the trial of Deaver for the of-fence, swore that the interlineation was not done by him. (Smith,) intending thereby to weaken the force of the proofs against himself as the perpetrator of the crime, and tire oath thus taken, should be found by the jury to be false and corrupt, it would be material, and would amount to the crime of perjury; and, in that case, the plaintiff could not recover in the action for malicious prosecution. Defendant excepted.

The Court was of opinion, that if Deaver committed the offence, or if he committed it jointly with Smith, Smith’s oath was not material to the issue, and, in either case, there would be a want of probable cause, and the plaintiff’ might recover.

The jury found a verdict for the defendant. Judgment and appeal by the plaintiff.

*565JEdney, for the plaintiff.

Gaither, for the defendant.

Battle, J.

When this case was before the Court at August Term, 1857, it was stated, that on the trial of the defendant, IT. B. Deaver, for forgery, i.n altering a certain note, the plaintiff, who was a witness, was asked whether he had not made an alteration in a warrant which had been issued on the note, to which he replied that he had not done so. Eor this, the defendants had taken out a warrant against him, for perjury, which, upon being returned before a justice, was dismissed, and he thereupon sued him for a malicious prosecution. This Court held upon that simple statement, that the answer to the question put to the plaintiff, as a witness, on the trial of H. B. Deaver, was immaterial to the issue, and if his answer to it was false, it could not be perjury in law, and thfe defendant might be guilty of a malicious prosecution, by taking out a warrant against him for it.

The bill of exceptions in the present case, presents the facts in a very different light. It is stated that it was admitted that either II. B. Deaver or the plaintiff was guilty of the forgery in the alteration of the note: that, testimony was given tending to prove that the alteration, both in the note and the warrant, was in the same hand-writing, and in the same shade of ink. On the trial for the malicious prosecution, it was material for the defendant to show, if he could, that the plaintiff made the alteration in the warrant, because, if the jury should believe that the alteration in the warrant and note vrere in the same hand writing, it would show that he and not II. B. Dea-ver, had been guilty of forging the note. The testimony was, therefore, material and competent, and, if the plaintiff’s answer to the question were false, and he did make the alteration in the warrant, it followed that he was guilty of the perjury charged against him, and of course the defendant could not be guilty of the charge of prosecuting him for it, without a probable cause.

The instructions given by his Honor to the jury, were as fa*566-vorable to the plaintiff as he had any right to require, and we do not discover any error in them, and as there was none in the reception of the testimony offered, to show that the plaintiff’s answer to the question put to him, on the trial of II. B. Heaver, for- forgery, was false, the judgment against him must be affirmed.

Reii CuRiAM,, Judgment affirmed.