#### HENDERSON THOMAS v. JESSE A. NORRIS.

In an action for malicious prosecution by a States’ warrant for larceny, it appeared, that tbe warrant bad been a joint one, against tbe plaintiff and one Tobe, — that tbe preliminary oatb made by tbe defendant was, to ike contents of the warrant, which contained tbe usual recital,— that tbe defendant was a man of more than ordinary intelligence,— that tbe warrant was drawn by bis friend, who bad come to tbe magistrate with him, and who afterwards served it, — that in tbe conversation with tbe magistrate preliminary to tbe talcing out tbe warrant, tbe defendant did not charge tbe plaintiff with stealing tbe article, but charged Tobe, bis own servont, with stealing it, and tbe plaintiff with harboring Tobe,- — -that upon tbe trial of tbe warrant, some sharp words having been used by tbe plaintiff in regard to tbe charge, tbe defendant said that he did charge him with stealing ; and that tbe defendant, on tbe trial, assisted in conducting tbe examination of tbe witnesses: Held,

1. That evidence going to show that at tbe time of taking out tbe State’s warrant, tbe defendant bad malice towards Tobe, was competent, as going to show .the state of bis mind at that time towards tbe plaintiff ;

2. That tbe Judge was warranted in instructing tbe jury That if they believed tbe evidence, tbe defendant bad knowingly prosecuted tbe plaintiff for larceny ;

3. That be was warranted in declining to instruct them, That if they bebeved that tbe defendant did not mean by bis affidavit to charge tbe plaintiff with stealing, be could not be bable ;

4. And that be was also warranted in declining to instruct them, That if tbe defendant stated the fads to tbe magistrate, suchfads not constituting a criminal offence, and tbe magistrate issued tbe warrant upon such statement, tbe defendant would not be bable.

*781Trespass on the case, for malicious prosecution, tried before Watts, J., at December Special Term 1869 of Wake Court.

Upon tbe trial it appeared that in February 1868, tbe defendant and one Wilbourn bad applied to a Justice of tbe Peace for a State’s warrant against tbe plaintiff and one Tobe, a colored boy, for steabng a blanket; that during tbe preliminary conversation tbe defendant did not charge tbe plaintiff with tailing tbe blanket, but with harboring Tobe, tbe defendant’s servant, wbo bad stolen it; that tbe warrant was drawn by Wilbourn as be was sitting close by tbe defendant, that, after it was drawn and signed, tbe magistrate read it over to tbe defendant, and administered an oatb to bim as to tbe truth of its contents; that it was thereupon debvered to Wilbourn, as an officer, to be executed ; that during tbe same day it was tried before tbe same magistrate; that, upon tbe trial, tbe plaintiff, wbo was shown to be a man of more than ordinary intelligence, examined thewitnesssforthe prosecution, and that after tbe plaintiff bad angrily denounced tbe defendant for making such a charge against bim, tbe latter replied, u I donotcbarge you with stealing tbe blanket.”,

Tbe material parts of tbe warrant were: “ Whereas, this day, information bath been made to me, A. N. Betts, one of, &c., by Jesse A. Norris, on oatb, that Tobe Norris, (colored,) and Henderson Thomas, bath stolen and taken and concealed one blue blanket, to tbe value of three dollars, from said Jesse A. Norris, which is contrary to law and tbe peace and dignity of tbe State, this is, therefore, to command any lawful officer to take tbe bodies of tbe said Tobe Norris, (colored,) and H. Thomas,” &c., &c.

Upon tbe trial of this action in tbe Court below, tbe plaintiff, with a view of showing malice on tbe part of tbe defendant, offered evidence, that during tbe day on which tbe blanket was taken, a very severe whipping bad been given *782to Tobe, wbo was then a servant of the defendant, in the presence of the defendant, and with his consent.

This was objected to by the defendant as being irrelevant, and calculated to prejudice the jury, but was admitted by the Court.

Upon being requested by the plaintiff so'to do, the Judge instructed the jury, that if they believed the evidence, the defendant had knowingly prosecuted the plaintiff upon a charge of larceny.

The defendant requested the Judge to instruct the jury : 1, that if, upon all the circumstances, they should conclude that it was not the real intent and meaning of Norris, in making affidavit before Betts, to charge Thomas with stealing, the plaintiff could not recover; and 2, that if they believed that Norris stated the facts in regard to the blanket, to Betts, and that statement did not constitute a criminal offence, and Betts issued the warrant upon such statement, the plaintiff could not recover.

His Honor declined to give the second instruction, on the ground that there was no evidence to support it; upon the former, he charged the jury, that if upon the whole case, they believed that the defendant did not know to what he was swearing, or’ that he honestly thought that the affidavit charged the plaintiff only with harboring an apprentice, the plaintiff could not recover.

Verdict for the plaintiff; Rule, &e. Judgment, and Appeal by the defendant.

Fowle & Badger and Haywood, for the appellant.

Phillips & Battle and A. M. & II. (x. Lewis, contra.

Readb, J.

I. As the defendant had charged the boy Tobe and the present plaintiff with stealing the blanket, it was competent for the plaintiff to show the defendant’s malice towards Tobe, as tending to show the defendant’s *783malice towards tbe plaintiff also: Caddy v. Barlow, 1 M. & Ry., 275. There is no force, therefore, in the first cause assigned for error by the defendant.

II. The plaintiff asked his Honor to charge, and his Honor did charge, that if the jury believed the evidence, then the defendant did knowingly prosecute the plaintiff for stealing; and to this the defendant excepted.'

The warrant charged the plaintiff with stealing, in plain, unmistakable language, and the warrant was read over to the defendant, and he swore to it; and he is stated to be a man of more than ordinary intelligence. There is no pre-tence that he did not understand it, or that it was falsely read, but he puts his objection upon the ground, that in his statement, outside of the oath which he made to the Magistrate when he applied for his warrant, and afterwards, he said that he did not charge the plaintiff with stealing the blanket, but that he charged Tobe with stealing, and the plaintiff with harboring Tobe.- The answer is, that he swore to the warrant, well knowing that it charged the plaintiff with stealing ; and he cannot excuse himself for this false and mali-ciousoath and act, by any accompanying or subsequent words not under oath, that he did not mean to do what he knew he was doing; Protestatio contra factum, non valet. If the charge in the warrant did not have his approval, he ought to have refused to swear to it, or to sue it out; but he did sue it out, and tried to convict the plaintiff before the Magistrate under the’warrant, all the time, admitting that he was not guilty of the stealing but only of the harboring ! And this very thing it was, of prosecuting the plaintiff under the forms and solemnities of legal proceedings for a crime of which'the defendant not only knew he was innocent, but by his own admission furnished the indubitable evidence that he knew it, — that furnished the plaintiff with the grounds for this action. It is as if he had said, “ I know *784the plaintiff: is innocent, but I will nevertheless degrade him by prosecuting him, in connection with a negro, for an infamous offence.”

III. The defendant asked his Honor to charge, that if the jury believed that the defendant did not mean by his affidavit to charge the plaintiff with stealing, then they must find for him. His Honor declined to charge in those terms, but did charge, that, if the j nry believed that the defendant did not know that he was charging the plaintiff with stealing, but supposed that he was only charging him with harboring, then they should find for the defendant.

This was certainly as favorable for the defendant as he could claim ; for there was no evidence that he did not know that the warrant charged the plaintiff with stealing. He did know it, and swore to it, and he is answerable for the plain meaning of his words and acts, and cannot be heard to say, “Art thou in health, my brother?” while he stabs his reputation.

IV. The defendant asked his Honor to charge, that if the defendant stated the facts (outside of his oath,) to the magistrate, .and if this outside statement did not constitute a criminal offence, and the Justice issued the warrant on such statement, the defendant would not be guilty of a malicious prosecution. His Honor declined to give the charge, upon the ground that there was no evidence to support it. There might be some force in the defendant’s point if the Magistrate had issued the warrant upon the outside statement, and had not brought it to the attention of the defendant, or taken his oath ; but there was no evidence to support this view. .On the contrary, all the evidence shows that the warrant was not issued upon the outside statement, as distinguished from the oath, but upon the oath, and the warrant was read to the defendant, and sworn to. There is no error.

Per Curiam. Judgment affirmed.