#### *M. Braveboy ads. W. J. Cockfield.*

Where a prosecution against a party never legally existed, he cannot maintain an action for malicious prosecution. ; ¡,. j

*Tried before Mr. Justice*Earle, *at King's*Tree, *Fall Term1*1841, *whose report of the case is as*follows/

•i. This was an action on the case for a malicious prosecution. On the information of the defendant;:a warrant was issued by a magistrate for the arrest of : the plaintiff. The information embodied in the warrant was;-that “ the plaintiff feloniously:.did take, steal, and carry'/off, his (defendant’s) negro boy Tobe; and did, withv force - and violence^ carry off his said boy, out of the said.district.” The plaintiff was arrested:.'in Marion district, where the warrant was countersigned, by another Justice. T;he warrant was issued on the 12th August, 1839, and the plaintiff entered into recognizance on the next day. .The defendant, in person, applied to the justice, and made his comn plaint, that his negro had been taken off while he. was at meeting ; and that he thought the persons.die named, of whom defendant was one, had done it, and he wanted proper process against them. The justice thought it a case of felony. He read the affidavit to the defendant before he was sworn. He delivered the warrant, when issued, to the defendant and a constable, who went away with it. Defendant himself carried the warrant to the constable, Yarborough, who had it backed, (countersigned) and made the arrest in Marion. To several persons, after the warrant was taken out, the defendant said he did not believe plaintiff was actually concerned in the carrying away of the negro, but that he was along, and aided the Bur-ketts, who were the other parties charged. The prosecution was abandoned at the first term; no bill was given out, and the plaintiff was discharged. A civil action was brought in Marion for the negro, which resulted in favor of the defendant. When the defendant delivered the warrant to Yarborough, and it was backed by Justice Askins, in Marion, he said he would not be in Cockfield’s place for half he was worth. I refused a motion for non-suit.

*271■_It was proved on the defence, that the negro was, carried off from the defendant’s residence in August, 1839, in the 4ay time, but privately, when the family were absent from home. The plaintiff came first to the house, and called Tobe with him to the fence, and inquired.if-his master was at home, and conversed with him some'time.; the plaintiff then rode along the fence, and called another of the negroes ' to him at the fence, and had some conversation with him. This occurred about twelve o’clock. The witness who proved these facts, with the wife of the defendant, then left the place; and in the afternoon of the.same day, perhaps ■in an hour, the negro Tobe was carried-off by two men, "named Burkett, father and son,The defendant, who was ;at church in the neighborhood^.-was sent for, and the foregoing facts communicated to him. He went, immediately to make his complaint to the justice ; and it was proved -by a witness sworn for the defence, that while he was at church, the plaintiff had been at his house, talking with the negro; that the Burketts had afterwards carried him away; and that the plaintiff had crossed the river with them. He left the matter mostly to the justice, and expressed his regret that- the plaintiff, with whom he had always been friendly, should be charged with such a thing. He complained that his negro had been;,taken away, or stolen and carried off, and demanded redress according to the course of law -;, he wanted to recover him; but according to another witness, he said the plaintiff had aided the Burketts, who had done it; that he,.hadbeen seen there, *<&c.*It was fully -proved that the defendant soon became satisfied that the plaintiff should .not have been included in the prosecution, or regretted tlVat he had been ; and he did what he could to atone for it. . He excused himself on the ground that he was informed; by his wife and sister, that the plaintiff had been at his house the same day, talking with Tobe, and that he had .'crossed the river with them the same, day; and therefore;, he thought that the plaintiff knew of it. There was other proof also, that the ¡Burketts had long-before set up a claim to this, and other ¿negroes, in possession of the defendant; had gone to his house to make a demand ; and that he had replied, -that they had no sort of claim, and forewarned them from at*272tempting to take them. The defendant justified himself by saying he had the advice of two justices, who thought it stealing ; but afterwards, on getting other advice, found he was wrong, and did all he could to stop the prosecution. I submitted the cause to the jury with ample instructions. I did not think there was probable cause for the prosecution, if Burkett had a *bona fide*claim to the negro, known to the defendant, and had taken him in the assertion of that claim. I submitted to them, if they found the affirmative of those propositions for the plaintilf, then he should have a verdict. If the claim of the Burketts had been a mere fraudulent pretence to seize the negro, so as to avoid the charge of felony, and they had carried him off beyond the reach of the defendant, there would have been good cause of prosecution against them; and I thought the proof would warrant the proceeding in that case against the plaintiff. I did not, in any view, consider it a case for heavy damages, and the jury found for the plaintiff twenty dollars.

From this verdict the defendant appeals, and moves that the same may be set aside, and a non-suit ordered, on the following grounds:

J. That it appeared by the plaintiff’s evidence, that he was never lawfully arrested, nor even for one instant detained, on the prosecution of the defendant.

2. That the defendant having stated to the magistrate the facts and circumstances on which his complaint was founded, which facts and circumstances the plaintiff did not attempt to disprove, or even deny, the magistrate, and not the illiterate defendant, is responsible for the institution of a prosecution for felony, if those facts and circumstances did not warrant such a prosecution.

3. That the plaintiff wholly failed to prove the want of probable cause ; and all the evidence produced by him on that point, went directly to shew the existence of sufficient reasonable and probable cause to justify a prosecution.

4. That there was no evidence whatever of malice; the existence of which was in fact wholly disproved by the plaintiff’s own witnesses.

*273Should the motion for a non-suit fail, the defendant then moves for a new trial, on the same grounds, all of which, so far as they depended on evidence, were in contro vertihly established by the evidence introduced on the part of the defendant; and the jury were bound to find in conformity to the law applicable to it.

And in support of the motion for a new trial, the defendant will rely upon the further ground, that the verdict was without evidence, against evidence, and contrary to law.

Bailey, for the motion. *Harttee,*contra.

Caria, *per*

O’Neall, J.

I think the motion for non-suit ought to have been granted on two grounds. 1st. There was no legal arrest of the present plaintiff, to answer the charge of negro stealing. If the warrant had been properly countersigned by Justice Asldn, and the constable of Williamsburg had been duly authorized to execute it, I think it would have been sufficient. But the instrument preceding the Justice’s signature on the back, is anything else than countersigning or authority to execute the warrant. The words used are plain English, and must be understood according to their meeting: They give a license from Mr. Justice Askin to Constable Yarborough, “to rest and remain” in Marion district. It may be, the words were intended to authorize an arrest and detention, but they certainly have no such appropriate meaning, and we have no right to give it to them, from the belief that they were ignorantly used. Public officers using plain English words ought to be supposed to understand their meaning. The defendant and constable Yarborough may be liable for false imprisonment, in arresting the plaintiff without warrant; but the defendant cannot be liable in malicious prosecution, when the prosecution never legally existed. The plaintiff is not helped by the defendant’s recognizance to prosecute, or the plaintiff’s to appear and answer; neither of them are appropriately conditioned as papers on the criminal side of the Court — they apparently relate to a case between party and party.

2d. I think there was proof of *“*abundant probable *274cayise ” To come understandingly to a just conclusion, it is necessary to understand what is probable cause. Any thing which will create in the mind of a reasonable man *the belief*that a felony existed, and that the party charged' was in any way concerned in it, is probable cause. The mere letting fall a prosecution does not raise an implication of a want of probable cause. The only cases where that is implied, are when the grand jury find no bill, or the defendant is acquitted by the petit jury, and the presiding Judge orders a copy of the indictment. From the statement in the report, it would seem that the plaintiff relied on “ the letting fall the prosecution” as evidence of want of probable cause. This was not enough. But we would not now non-suit the plaintiff on this ground, if in. the progress there was a semblance of a want of probable cause shewn. But it was plain there was not. In the absence of the defendant, one of his negroes was taken privately out of his plantation, by men who pretended, but who in point of fact had no claim to him. The plaintiff was seen before the negro was taken off, talking privately to him, and afterwards to another. The same day he was seen crossing the river with the men who took the negro away. The defendant stated these facts to the Justice, who thought the present plaintiff and the Burketts (who carried oil the negro,) liable to the charge of negro stealing, and so advised the defendant. After this statement, who would hesitate in saying that the defendant had reasonable ground to believe that the plaintiff had committed the felony with which he charged him ? There is no dispute about these points. *They show plain probable cause,*and hence the plaintiff must fail. If authority be necessary to sustain this view of the case, it will be found in *Fields*vs. *Gibbes,*decided by the Court of Appeals at Columbia, in May, 1837.

The motion for a non-suit is granted.

Richardson and Wardlaw, justices, concurred.

I am in favor of a new trial.

A. P. BUTLER.

*275I think there was a sufficient arrest; but that there was probable cause for the prosecution, and I concur on that ground.

J. J. EVANS.