#### Watt v. Greenlee.

From Burke.

A. having been arrested for a larceny at tho instance of B, and on examination, regularly discharged, brought an action for malicious prosecution against B. In this action, to rebut the defence relied 0113 viz. information of another which afforded probable came, A. may be permitted to prove that B. was present when two witnesses swore before a magistrate to facts proving the information which B. had received to be untrue, and A. need not produce the rec’ord of the proceedings or warrant before the magistrate, to lay a .foundation for the introduction of this testimony.

Evidence is also admissible to shew malice in B, that A. was the only witness bound by recognizance to appear in support of a prosecu» tion for felony then pending against the brother of B.

The forge of one Murphey hatl many years before been washed away, and the iron bands on one of the, large-wheels had for some time been missing. The Defendant obtained a warrant against the Plaintiff, charging him with having committed a larceny of one of these bands 5 on this warrant he had been apprehended, and after examination was discharged. The Plaintiff then brought this action for a malicious prosecution. The defence was, probable cause, and to support it, the Defendant proved that he had been informed by Martin, the smith, to whose shop Watt, the Plaintiff, had sent a piece of iron, that he, the smith, believed it to be a part of Mur-phey’s band. To rebut this testimony, Plaintiff proved by one Shelton, that previous to the issuing of the warrant against Plaintiff, the witness and one Pleasant Watt bad both declared on oath before a magistrate, Brown, and in the presence of Greenlee, the Defendant, that the-iron sent to the smith’s shop had been purchased by Plaintiff of the witness Shelton ; and for the purpose of shewing malice in the Defendant, the Plaintiff produced the record of a prosecution for felony against the brother of the Defendant, from which it appeared that at the *187time the warrant was obtained against the Plaintiff, Wait, lie was the, only witness bound by recognizance to appear in support of the indictment w hich was still pending against Defendant’s brother.

The introduction of this record was ojsposed by Defendant, on the ground that it was irrelevant to the issue 5 and the evidence of Shelton" was objected to, because Pleasant Watt, whose declarations on-oath Shelton proved, was still alive, and Plaintiff had not produced, as it was incumbent 011 him to do, a warrant shewing the nature of the proceedings before the magistrate, Brown, The presiding Judge admitted the evidence, and there was a verdict for the Plaintiff.

A rule to shew cause why a new trial should not be granted, because of the improper admission of testimony, was obtained, and afterwards discharged by tiie Court. Judgment for the Plaintiff, and appeal by Defendant.

Taylor, Chief-Justice.

This is a motion for a new trial, on the ground that improper testimony was admitted by the Court in two instances, viz. the circumstances related by the witness Shelton, and the record of a prosecution against David Greenlee, a brother of the Defendant.

To entitle the Plaintiff to a recovery in this action, it was necessary for him to prove that a warrant had been taken out against him as described in the declaration, that it originated in the malice of the Defendant, and that the proceedings were determined : but the essential ground of the action is, that a legal prosecution was carried on without a probable cause, which must be expressly proved, and cannot be implied — (1 T. Hep. 544 — 2 Ibid. 231.) The existence of a probable cause was relied on by the Defendant, and to prove that it was real, he confided in the information of Martin relative to the piece of iron, and his belief that it was part of the band of Murphey’s wheel. Now any circumstances tending *188to shew that the Defendant liad reason to doubt ti'e cor. rcctness of Martin’s relation, and that he was present when the fact of its being part of Murphcy’s wheel war. ac^ua]jy disproved by Shelton on oath, are relevant towards shewing the want of probable cause — Bunby v. Bethune, (1 Marsh. R. 220 — 5 Taunton 580.) It j.-i of no consequence what was the nature of the proceedings on which such evidence was given, the only enquiry be - ing whether the Defendant was present when Watt and Shelton gave their explanations concerning the iron j for if he was, it is a circumstance from which the' Jury will draw the inference, whether or not there was probable cause. If tlierc were none, malice would be implied, and it is pertinent as giving strength to this inference, to shew that the Plaintiff was, at the time the warrant was taken out against him, the only witness in a prosecution for felony against the Defendant’s brother. No improper testimony, therefore, has been received, and the motion for a new trial must be overruled.

Hall, Judge.

I think it was unnecessary to produce the warrant relative to which Shelton and Watt gave evidence before the justice of peace, because, in this case, the title to the iron is not in question, nor is it necessary, for the same reason, that Watt should be called to declare on oath what he swore to before the magistrate, relative to the r in. That proceeding is given in evidence now collaterally, to prove a knowledge in the De - fendant that the Plaintiff had not improperly become possessed of the iron and that there was no probable cause for the prosecution. 1 also think it was competent to shew in evidence the indictment against the Defendant’s brother, on which the Plaintiff was indorsed s.s a witness, because it is from such circumstances that the Jury are at liberty, if they think proper, to believe that the prosecution was malicious, and on that account give *189.nbeuvie damages. I therefore thiuk the rule for a new C'htí fbo‘dd be discharged.

ühNukrsoNj Judge, concurred.