#### SANDERS JOHNSON vs. MOSES CHAMBERS.

In an action for malicious prosecution, the oath of the prosecutor in the original complaint or before a magistrate is evidence for him.

A defendant, in an action for malicious prosecution, is only to be fixed with the want of probable cause, by what he knows when he commences the prosecution ; although he is allowed to protect himself by any facts, which he is afterwards able to prove, which shew the plaintiff to be guilty, or tend to shew it.

The dismissal of a State’s warrant by a magistrate raises the presumption of a want of probable cause, but not of malice.

The law raising no such presumption, the question of malice must be left to the jury, as a question of fact, and cannot be decided by the Court.

The case of Bell v. Fearcey, 5 Ire. 84, cited and approved.

' Appeal from the Superior Court of Law of Person County, at the Spring Term .1849, his Honor Judge Dior presiding.

This was an action upon the ease for malicious prosecution, with a count for slanderous words. The plaintiff produced in evidence a State’s warrant, sued out against him at the instance of the defendant, charging him with having stolen money from him. Upon this *288warrant he was arrested, and afterwards discharged by the examining magistrate at the costs of the prosecutor.

The plaintiff then examined Madison McMurray, the constable, who served the said warrant. This witness stated, that the defendant brought the warrant to him on the same day it was issued, and told him, that he believed Sanders Johnson had stolen his money: that they had been drinking together the previous day and night in Roxboro,’ at the tavern of George Chambers, (a retailer of spirituous liquors :) that said Johnson said he had no money of his own, after night, and that he had stood his surety for three drinks at four pence a piece ; that Johnson had seen him count his money in the presence of George Chambers, and, instead of going to sleep at Alexander Hopkins’, where he had stopped when he came to town, and where his horse was, he insisted upon sleeping with him ; that they slept together in the same bed, and, upon waking very early in the morning, he found, that Johnson had left, and that his money was gone ; that he then went to Hopkins’, who told him, that Johnson had come there that morning, when it was not light enough clearly to distinguish objects, and called for his horse, and when he {Hopkins) insisted upon his staying to breakfast, he declined, saying, that he had to go to his mother-in-law’s, where there was to be a renting that day. The witness further testified, that he proceeded in pursuit of Johnson to the place designated, where he arrived about eleven o’clock, but he had not been there ; that he remained some time, and then went in search of him in other places, and again returned and watched for him at night, but he did not come there % that he arrested him the next day and found upon his person fifty or seventy five cents. — • The witness said, that he had seen Johnson that day, before the warrant was issued, at Roxboro’, who told him, that he he did not have one cent of money, and borrowed *289from him either twenty-five or fifty cents. This was some time before night.

George Chambers, a witness for the defendant, said, that the plaintiff and defendant were drinking in his grog shop at Roxboro’, on the day above mentioned, and again at night; and that, after night, the plaintiff, Johnson, said, he had no money, and Chambers stood his surety for three drinks of spirits ; that, some time after night, Chambers, who had received some money during the day, counted it by the candle in his shop, and that Johnson and several other persons were present, but whether Johnson was in the immediate presence of Chambers, he could not say ; but he saw Johnson there within a few minutes of the time, both before and after the money was counted. This witness further stated, that both Johnson and Chambers were intoxicated, but Johnson not so much so as Chambers ; and that Chambers, to whom the house belonged, had reserved two rooms in it, in one of which some negroes, belonging to him, lodged, and in the other Chambers slept himself; and that, before he left the house, he found that Johnson had gone into the room among the negroes and was with them, and that he made him come out; that Johnson slept with Chambers ; and, that there was but one bed in the room.

Alexander Hopkins, called for the defendant, said, that the plaintiff had put up his horse at his house in Roxboro’, and called for him at or before day-light, and refused to wait for breakfast, saying, that he had to go to-a land renting at his raother-in-law’s, which, witness said, was thirteen miles from Roxboro’; that Johnson told him, he had slept "with Moses Chambers the night be»fore.

The plaintiff then examined William Jones, a brother* in-law, who said, that he was going to a sale on the day the plaintiff was arrested and met him in the- road : that he told the plaintiff, that the constable was in pursuit of *290him and would be at the sale : the plaintiff said he would go there and surrender himself, if the witness would first go with him home, which he did : that he accordingly went to the sale and was there arrested: that Johnson was coming ifrom the direction of his sister’s, when the witness met him, and his sister was sick ; and that he had heard that the legatees were to have met the day before at Johnson’s mother-in-law’s to settle, but that there was no such meeting.

Three witnesses were examined for the plaintiff, who proved his general character to be good.

The Court charged the jury, that, as the magistrate had dismissed the warrant, on which the plaintiff had been arrested, it was incumbent on the defendant to show, that he had probable cause for suing out the said warrant. And the Court further charged the jury, that, taking all the facts to be true, as proved, they did not create such a probability of the plaintiff’s guilt, as ought to induce an ordinarily prudent man, properly guarding the rights of others, to sue out a warrant; and, therefore, the only question for them was, what amount of damages the plaintiff was entitled to recover, and that was a question solely for them, having a proper regard to all the circumstances of the case.

The jury found a verdict for the plaintiff; and the defendant obtained a rule, &c., which was discharged. Judgment was rendered, and the defendant appealed.

E. G. Reade and Kerr, for the plaintiff.

Norwood, for the defendant.

Pearson, J.

Iiis Honor charged, “that, taking all the facts fo be true, as proved,” there was no probable cause. We think, there was not only probable cause, but strong proof of guilt. The defendant’s money was stolen — no one had a chance to steal it but the plaintiff. The plain*291tiff knew, that the defendant had money — insisted on sleeping with him, instead of going to his own room — left town the next morning before day, under suspicious circumstances ; and, when told of the charge, instead of hastening to the plaintiff to make explanations, takes care to go to his sister’s before he is arrested.

We suppose his Honor did not give the defendant the benefit of his oath before the justice of the peace, as evidence for him ; and, of course, did not think there was any evidence, that the money had been stolen. This may account for the conclusion that there was no probable cause. But it is well settled, that in actions of this kind, the oath of the defendant is evidence for him. Moody v. Pender, 2 Hay. 29. Swaim v. Stafford, 3 Ired. 293. The good sense of the rule cannot be doubted ; for, in many cases, the facts, which make out probable cause, are known to the prosecutor only, and to exclude his oath in relation to them would be to hand him over to the mercy of the person charged, whenever there happened not to be a conviction ; and all, who escaped the whipping post, would turn around and bring an action for malicious prosecution.

In deciding the question of probable cause, the fact sworn to b} the brother-in-law of the plaintiff, that he went to the sale to surrender himself, and the fact of his having only 75 cts. when arrested, and his good general character, which, it was not proven, was known to the defendant at the time he took out the State’s warrant, ought not to have been taken into consideration by his Honor. The defendant is only to be fixed with a want of probable cause, by what he knows, when he commences the prosecution ; although he is allowed to protect himself by any facts, which he is able afterwards to prove, •which show the plaintiff to be guilty, or which tend to show it. This is fully discussed in Bell v. Pearcy, 5 Ire. 84.

*292His Honor also erred in telling the jury, “’that the only question for them was the amount of damage.”

The gist of the action is a want of probable cause, and malice.

The dismissal of the State’s warrant raised a presump, tion of the want of probable cause, but it did not also raise a presumption of malice ; for, the question of malice was not enquired of by the justice of the peace. Iiis investigation was confined to the enquiry, as to the existence of probable cause. How could his decision affect the question of malice ?

Malice may, in some cases, be inferred from the want of probable cause, but the law makes no such presumption. It is a mere inference of fact, which the jury may or may not make ; and it should have been left to them, in addition to the question of 'damage.

Peu„Curiam.

Judgment set aside and a venire de nova awarded.