#### AUTRY v. FLOYD.

(November 20, 1900.)

3. Former Adjudication — Bes Judicata — Judgment—Estop-pel~In Forma Pauperis.

The dismissal' oí an action for want of a prosecution bond and a denial of motion of plaintiff to prosecute the action with out giving further security, will not bar a subsequent action for the same cause of action in forma pauperis.

2. Malicious Prosecution — Evidence—Witness—Competency ■ — Malice.

In action for malicious prosecution, defendant may testify as co whether he was influenced by malice in instituting the prosecution.

Ctvtt. AottoN by 0. P. Autry against E. Floyd, beard by Judge II. B. Bryan and a jury, at Spring Term, 1900, of CUMBERLAND Superior Court. From judgment for plaintiff, tbe defendant appealed.

N. A. Sinclair, for plaintiff.

S. M. Wetmore, for defendant.

Fubches, J.

Tbe plaintiff was a mortgagor to Mrs. Floyd,, wife of tbe defendant in tbis action, and who procured a-State warrant, to be issued by a Justice of tbe Peace, against the plaintiff, Autry, for disposing of mortgaged property. The Justice of tbe Peace bound tbe plaintiff, Autry, to court,, where Floyd procured a bill of indictment to be sent to the-grand jury, who found it to be “a true bill.” But upon the-trial, tbe plaintiff, Autry, was acquitted, and brings this action against tbe defendant (in tbis action), Floyd, for malicious prosecution. Upon tbe trial the plaintiff, Autry,. *187recovered, and tbe defendant, Eloyd, appealed. He pnts bis appeal upon many exceptions, but it is only necessary for ns to consider tbe first two.

It appears from tbe transcript of record tbat tbe plaintiff bad commenced another action in tbe Cumberland Superior Court before this for tbe same cause of action and against tbe same defendant, and tbat said former action bad been dismissed for tbe want of security for tbe prosecution, and tbat tbe plaintiff bad moved tbe Court in tbat action for leave to prosecute without giving further security, which motion was denied; and tbe defendant moves to dismiss this action for tbe reason tbat tbe action of tbe Court in tbe former action estops and prevents tbe plaintiff from prosecuting this action in forma pauperis. We do not agree with the defendant in this contention, and the ruling of tbe Court in refusing this motion to dismiss is sustained.

Tbe defendant’s second exception must be sustained. The defendant was examined as a witness in bis own behalf, and was asked by bis counsel tbe following question: “Were you influenced by malice in instituting tbe prosecution ? (Plaintiff objects upon tbe ground tbat it was a matter for tbe jury to say, and not himself. Objection sustained, and defendant excepted).” Section 589 of Tbe Code provides: “No person offered as a witness shall be excluded by reason of bis interest in tbe event of tbe action.” Tbe defendant was, therefore, a competent witness, and, as such, it would seem tbat be might testify in any matter involved in tbe litigation, not excluded by section 590 of Tbe Code, or as to such matters as public policy prevents a party from testifying to, as in State v. Brittain, 117 N. C., 783. This evidence is not excluded by section 590, nor does it seem to be prohibited by any public policy known to us. But it seems tbat the defendant’s exception is sustained by Nixon v. McKinney, 105 *188 N. C., 23; Phifer v. Erwin, 100 N. C., 59; McKown v. Hunter, 30 N. Y., 625. We are therefore of the opinion that this question and evidence were competent, and the evidence should have been allowed to go to the jury. As this error permeates the whole trial, it would hardly be proper for us to express an opinion upon any other exception. The error, as pointed out in this opinion, entitles the defendant to a new trial.

Error.