#### John Sitton *v.*John Farr.

Action for Malicious Prosecution — verdict for plaintiff — motion in arrest of Judgment. The declaration set out, “ that the defendant falsely, maliciously and without any reasonable or probable cause, made the information, charging the plaintiff with the commission of perjury ; the issuing of the warrant, the arrest, imprisonment and enlargement of the plaintiff on his recognizance to appear at the next Court of Sessions for Pickens district, to answer the said charge,” and then states, “ that on the 9th of October, 1837, the defendant not having any proof whereby to sustain the said charge made by him against the said plaintiff, the prosecution for the supposed offence aforesaid failed, and the said plaintiff was fully and freely discharged by *the said court,*and then, as now, the said prosecution for the said supposed offence was, and is, wholly at an end.” Held sufficient, and the motion refused.

The omission to state the fact *specially, that the*bill of indictment went *to*the grand jury, and that they ignored it, is immaterial, for, legally speaking, until the grand jury find the indictment, it is as if none had existed. The fact, in this respect, is sufficiently stated, by setting out that “ the defendant not having any proof whereby to sustain the said indictment,” &c.: for the “no bill,” by the grand jury is, in fact, saying there was no proof to sustain the charge.

*304*Before O’NEALL, J, at Greenville, Spring Term,*1839.

The following is the report of his honor, the presiding judge :

“ This was an action of malicious prosecution. The defendant had set on foot a prosecution against the plaintiff for perjury, in swearing before a justice of thé peace, on a trial before him, that the defendant was justly indebted to him in the sum of f5 93f, after all just credits were allowed, when the plaintiff immediately after the said trial, paid the defendant $1 25 or f 1 50 for a barrel. Upon this charge an indictment was preferred, and the grand jury found “no bill,” and therefore, the plaintiff was discharged by the court. The proof, I thought, abundantly showed the want of probable cause, as will appear satisfactorily, from the following summary of the evidence. The defendant sued the plaintiff before Esquire Robinson, for a settlement; at the return of the summons, the parties met. The defendant not being a good accountant, a Mr. Crawford was appointed by the magistrate, to state his accounts. While the parties and Mr. Crawford were engaged in this business, something was said by the defendant, about a barrel lent to the plaintiff and by the plaintiff, about a frow lent to the defendant. At the suggestion of the justice, the borrowed articles were to be returned, and not brought into the account. When the defendant’s account had been prepared by the accountant, the parties came before the justice, when the plaintiff, at first, refused to produce his account, but on the oath being tendered to the defendant, the plaintiff then produced his account, and swore that the defendant was indebted to him $5 93f-, after allowing all just credits. For this sum the justice gave judgment against the defendant, when some one exclaimed, “ you have lost your barrel: ” he said “ yes: ” demanded a summons from the justice, which he was about to grant, when the plaintiff paid the defendant for the barrel, deducting therefrom the price of the frow. One of the defendant’s credits was for a beef, which the plaintiff had credited at 3j cents per lb.; the defendant claimed that the plaintiff was to have allowed him 4 cents per lb.: the justice said he told Farr *305that he thought 3|- cents was a very fair allowance, and that, I supposed, disposed of that item: and, in my remarks to the jury, I said to them that the amount of the credit for the beef, did not seem to be in issue between the parties, when the plaintiff swore to the balance of his account. After I had closed my charge, General Thompson said to me, that Elsy Hunt, one of the witnesses, had said, on his examination, that this item was in contest between the parties, when the plaintiff was sworn. I had no recollection of any such proof, nor did my notes afford any memorandum of it. I did not permit the witness to state any thing on the matter after my charge. It was proved by the Messrs. Maulden, that the plaintiff was to allow 4 cents for the beef; another witness, Mr. Turner, very distinctly proved, that it was not worth more than 3 cents.

There was a great deal of testimony as to the character of the plaintiff. It was about as follows: Col. Grisham knew the plaintiff for twenty years: they lived in the same village ten or twelve years: he gave him a good character: after the plaintiff removed from Pendleton they lived twenty miles apart, but he still knew the plaintiff, and was frequently at his house. Col. Norton lives twenty-five miles from the plaintiff: had known him for twenty years, and he gave him a good character. Gen. Whitner said, the plaintiff’s character, years ago, was good at Pendleton. Richard Bur-dine said, he knew the plaintiff from his infancy, that the opinion of the people about the plaintiff was divided, some thought his character good, others bad: he said the plaintiff had mills, and it was of his dealings with people in that respect, that there was complaint. Some of the men who spoke badly of the plaintiff were bad men; others were good men. He said there was too much bad against him. Francis Maulden, who had lived with the plaintiff, said his character was good. Simeon Wade said, that a majority of the people thought .his character good. Esquire Robison said his character was tolerablel Mr. Robison had lived with the plaintiff, he said he knew nothing against him. Mr. Bowen said that the people were divided abóut the plaintiff’s character, some thought it bad. This was the testimony also, of *306Harris Maulden, Col. Hoke and Mr. Burdine, jr. Elsey Hunt and Col. John P. Ligón said his character was bad. Major Mas-ten said that the people near the plaintiff said he was too tight in his bills; they did not get from his saw mills all the plank they ought to have. He had, however, always found him fail'. Esquire Watson said that the people said, the plaintiff was shuffling in his settlements. The leading counsel for the defendant (Gen. Thompson) announced, after examining Elsey Hunt, Harris Maul-den, Mr. Turner, Col. Hoke, Major Masten, Mr. Burdine, Colonel JohnP. Ligón and Esquire Watson, that the defendant had closed his defence: the plaintiff was called on for his reply, and said he had none: the case was considered closed in evidence on both sides; I had discharged the jury for dinner, and was in the act of leaving the bench, when Mr. Townes said, the defendant would wish to examine other witnesses after dinner, without pointing out any matter making it proper that further proof should be heard. Mr. Perry objected to any further examination, and I said to Mr. Townes, it could not be done. There the matter rested. If he had said that he or his colleague had inadvertently omitted to prove a fact; or had pointed out the máteriality of his witnesses, in the exercise of a sound discretion, I would have permitted the defendant to have examined other witnesses. But I supposed, that it was merely to gratify his client, that other witnesses weré proposed to be examined, as to character; and about that I was sure he had an abundance.

I instructed the, jury that the action of malicious prosecution lay, whenever any one without any reasonable or probable cause, sets on foot a criminal prosecution; that the absence of probable cause created a legal implication of malice. It was, therefore, necessary to understand what was probable cause. I defined it to be, “ any thing which creates a belief in the mind of a reasonable man of the truth of the charge.” The action, I told them, was generally not 'to be encouraged. The plaintiff’s case must therefore, be free from doubt, on the question of want of probable cause, before he could recover.

I arrayed the facts, showing a want of, or -the existence of pro*307bable cause, and submitted the question to them, expressing a very distinct opinion, that in the matter of which the perjury was assigned, there was nothing like a wilful false oath.

I commented on the proof of character ; and might have said to the jury, that the evidence of Cols. Norton and Grisham, who lived twenty miles from the plaintiff, was entitled to as much consideration as that of any other witnesses. Their acquaintance was a long one, and, in some respects, an intimate one. Both of them were very intelligent men, and both of them had been much before the public, and had, therefore, pretty good opportunities to know the plaintiff.

I said to the jury, in conclusion, if there was no probable cause for the charge, and yet the plaintiff’s character was so bad, that it could not be much injured by such a charge, then, that the plaintiff ought not to recover damages, beyond those which he had actually sustained. This was (I should think) instruction in favor of, and not. against the defendant, and ought not to be a ground of exception on his part.

As to the ground in arrest of judgment, I know nothing. The record was not brought to my view, either on the trial or since.”

The jury found for the plaintiff, #250 damages.

The defendant appealed, and now moved in arrest of judgment, because the plaintiff failed to allege in his declaration the manner in which the plaintiff was discharged, in the prosecution for peijury upon which this action is predicated, and for a new trial, on the following grounds:

1. Because the judge refused to allow the defendant to examine some of his most material witnesses, for the reason that one of his counsel said (inadvertently) that he had closed the evidence, which counsel was unacquainted with the relative importance of the witnesses, and had nothing to do with the preparation of the case, as had the other counsel of defendant, who immediately stated a wish to examine other witnesses, and was refused.

2. Because the judge charged that there was nothing like a direct issue upon the price of a certain amount of beef, which the plaintiff swore, in the trial before the magistrate, upon which the indictment was founded, to be less than the price stipulated by agree*308ment between him and the defendant; and because the judge charged that there was no false swearing on this point, and nothing showing probable cause.

*3.*Because the judge erred in saying to the jury that they ought to find some amount for the plaintiff, (to wit) enough to pay his reasonable expenses.

4. Because the judge erred in refusing the defendant the liberty of correcting a very material error in his notes of evidence, read to the jury, when the witness was in court.

5. Because the judge directed the jury to attach as much importance to the evidence of two witnesses on character, who lived twenty miles distant from plaintiff’s residence, as to the evidence of equally respectable men, who lived in his immediate neighborhood.

6. Because the jury found contrary to evidence.

CuRiA, per O’Neall, J.

The grounds for new trial require no comment. The ground in arrest of .judgment will be briefly considered. The declaration sets out, that the defendant falsely, maliciously, and without any reasonable or probable cause, made the information, charging the plaintiff with the commission of perjury: the issuing of the warrant, the arrest, imprisonment ánd enlargement of the plaintiff, on his recognizance to appear at the next Court of Sessions for Pickens district, to answer to the said charge, and then states, that on the 9th of October, 1837, “ the defendant not having any proof whereby to sustain the said charge made by him against the said plaintiff, the prosecution for the supposed offence aforesaid, failed, and the said plaintiff was fully and freely discharged by the said court, and then, as now, the said prosecution for the said supposed offence aforesaid, was, and is, wholly at an end.” The question here, is not, whether this declaration is as technically prepared as it might have been, but whether to entitle the plaintiff, on this verdict, to judgment, it was necessary to state in the declaration the manner in which he was discharged from the prosecution? In cases of this kind, it is, in general, advisable to set out all the proceedings had in the prosecution; but, *309because this is more lawyer-like, and is above exception, it does not follow, that, in some cases, a general description may not suffice. In this case, the manner of the defendant’s dicharge is sufficiently set out: he was discharged by the order of the court: this is described by the words, “ the said plaintiff was fully and freely discharged by the said court.” So that, confining ourselves to this ground, we should have to conclude that, upon it, there was no doubt. But I suppose the defendant intended to contend that, the cause of action stated in the declaration, was not sufficient to entitle the plaintiff to recover. In this, however, he is mistaken. The plaintiff has stated, that a prosecution, without any reasonable or probable cause, was maliciously set on foot against him, by the defendant, which failed, for the want of proof; and that he was therefrom dischai’ged, and that it was at an end. This statement unquestionably makes out a legal cause of action. It is, according to every definition, the description of a malicious prosecution. In 2 Sel. 1060, it is said, “ the declaration must state all the material circumstances attending the malicious prosecution; and how it was disposed of.” This is done on the present occasion, in stating, 1st, the information; 2d, the warrant; 3d, the arrest and imprisonment ; 4th, the recognizance to appear and answer; 5th, the discharge by the court, and the consequent ending of the prosecution. The only circumstance omitted is, that the bill of indictment went to the grand jury, and that they ignored it. But this is immaterial; for, legally speaking, until the grand jury find the indictment, it is as if none had existed. The fact, in this respect, is sufficiently stated, by setting out that “ the defendant not having any proof whereby to sustain the said indictment, &c.; ” for the “ no bill,” by the grand jury, is in fact, saying there is no proof to sustain the charge.

*Thompson*& *Townes,*for the motion.

*B. F. Perry,*contra.

The motions in arrest of judgment, and for a new trial, are dismissed.

Evans, Earle, and Butler, Justices, concurred.