#### Benjamin Johnston *v.*William Martin.

1 I From Iredell. J

In an action for a malicious prosecution, the dismissal of a State’s warrant by the magistrate wbo tried it, is *prima fade*evidence of the want of probable cause; and throws upon the prosecutor the burthen of proving that there was probable cause.

The Plaintiff, who was an overseer of a road, sued out a warrant against the Defendant, who was one of the hands attached to the road, for the penalty given by the act of Assembly ag’ainst delinquent hands, and charged him with a delinquency of four days. This delinquency the Plaintiff proved by his own oath, and recovered a judgment for the penalty. The Defendant afterwards obfained a warrant from a magistrate, charging, that in his belief the Plaintiff had sworn falsely against him upon the trial of the warrant. The Plaintiff was arrested and taken before two magistrates for examination, and dismissed by them, after hearing the evidence of the prosecutor and another witness. The Plaintiff then brought this action for a malicious prosecution, and, upon the trial, proved by the magistrate who issued the warrant, that the Defendant when he obtained it, and also on his examination, stated that the Plaintiff had sworn falsely in charging him with more days than he had a right to do. The other magistrate proved, that the Defendant charged the Plaintiff with swearing falsely, in charging him with four days’ failure, when the Plaintiff had not worked four days on the road. Another witness proved that the Defendant admitted he had been notified to work on the road for three days during the year, but that the Plaintiff had sworn to more days than he had a right to charge him with. Satisfactory proof was given that the Plaintiff had worked the four days on the road. The presiding Judge instructed the Jury, that the dismissal of the warrant by the magistrates, was no evidence of the want of probable *249cause. There was a verdict for the Defendant, and a rule for a new trial was obtained upon the ground of misdirection by the Court. The rule was discharged, and the Plaintiff appealed.

Tayior, Chief-Justice,

delivered the opinion of the Court:

*It is*well settled that in this action malice and the want of probable cause must both concur, otherwise the action will not lie. Malice alone is not sufficient $ because a just accusation may be made from malicious motives. Nor is theSvant of probable cause alone sufficient. But as malice is express or implied, it is frequently implied from the want of probable cause. Whether there be probable cause for the prosecution, must depend on all the circumstances of the *case;*but that which indicates its absence most strongly, is the discharge by the magistrates, after a Ml and fair examination of the evidence. This discharge proves a presumption in favor of the Plaintiff’s innocence; for, until it took place, it could not be inferred that the charge against him was without probable cause. Hence the necessity of always stating in the declaration that the Plaintiff had been discharged from the prosecution and when that is proved, as it always must be, it certainly amounts to *prima fade*evidence of the want of probable cause. As it is not necessary to prove express malice in this action, to the support of which, implied malice is sufficient, the discharge of the Plaintiff, resulting from the absence of any proof of his guilt, was one circumstance from which that implication might arise. It should have been stated to the Jury, as *prima fade*evidence o? the want of probable cause, and then the *onus*of proving the existence of probable cause, would have been thrown on the Defendant. A new trial is therefore awarded, and upon the trial of the cause, the Jury ought to be instructed that the dismissal of the Plaintiff by the magistrates, was *pmnafade*evidence of the want of probable cause.