#### Joseph Watt v. James Greenlee and Asa Martin.

From Burke.

Where, upon the trial of a State’s warrant for larceny, the Justice records the testimony of the prosecutor, the person prosecuted may, in an action for a malicious prosecution, give such, parol evidence of this testimony, as is consistent with the written statement, and tends to a more exact specification of the tiling stolen.

This was an action to recover damages of Defendants for having maliciously prosecuted the Plaintiff for larceny. Upon the return of the State’s warrant against the Plaintiff, before a Justice of the Peace, Asa Martin, one of the Defendants in this action, appeared and gave evidence, and his evidence was reduced to writing by the Justice, and returned to Court. As written, it stated, that about the last of September, 1811, Benjamin Garnish brought to him a piece of a band that belonged to a hammer-shaft of certain Iron Works that had been destroyed by a freshet: that he, the witness, made scallop iron of the piece of band for Joseph Watt, and Garrish said he brdught the piece of band to the shop, for and at the request of Joseph Watt. Watt was prosecuted for stealing this piece of iron, and acquit*247ted 5 and then instituted this suit. Upon the trial, a witness was admitted by the Court, to prove, that before the Justice, Asa Martin swore, that the iron he charged Joseph Watt with stealing, was the front hoop of a hammer-shaft. The introduction of this evidence was objected to, on the ground that the testimony given by Martin before the Justice, had been reduced to writing by the Justice, and that did not state the fact as sworn to by the witness. There was a verdict for the Plaintiff; and a rule for a new trial being obtained, on the ground of improper evidence having been received by the Court, the same was discharged, and the Defendants appealed.

Tayior, Chief-Justice,

delivered the opinion of the Court:

This was an action for a malicious prosecution, wherein a verdict was found for the Plaintiff, and upon a motion for a new trial being overruled, the Defendants appealed. The ground of the motion was the admission of improper testimony by the Court, in allowing a witness to prove, that on the trial before the magistrate, the Defendant, Martin, stated, that the iron he then alluded to, was the front hoop of a hammar-shaft; whereas, the statement of his evidence returned by the magistrate was, that Garrish brought to him a piece of a band that belonged to the hammer-shaft after the iron works were destroyed. The question does not arise in this case whether parol evidence is admissible to contradict the written statement by the magistrate ; for the evidence received is entirely consistent with it, and tends only to a more exact specification of the iron described by the party. A piece of a band that belonged to a hammer-shaft, may be the front hoop of the shaft; and if Martin did, in truth, so describe it, and it became necessary on the trial of the cause, that the very description he gave, should be repeated, there is nothing to forbid such evidence. We, therefore, think the rule for a new trial should be discharged.