#### Findley *v.*Buchanan, an Infant, by J. Work, his Guardian.

In malicious prosecution, the party’s acquittal by the justice, under whose war» rant he was arrested, is sufficient; and the suit may bo commenced after-wards on the same day.

Where there are several counts, some good and others bad, the declaration cannot be objected to, in this state, after a general verdict.

The informal appointment of a guardian cannot be assigned for error.

If the verdict in a civil suit, instead of finding the defendant *guilty,*&c., be *merely far the plaintiff,*&c., it is sufficient.

APPEAL from the *Clark*Circuit Court. — Case, by *Buchanan*against *Findley,*for malicious prosecution.' The declaration contained two counts, the substance of which was, that the defendant, falsely and maliciously and without probable cause, procured a justice’s warrant against the plaiutiif, upon a charge of felony, and caused him to be arrested, and taken into custody; that nothing being shown against the plaintiff, he was afterwards, by the justice, wholly acquitted and discharged. — Plea, not guilty. — Verdict and judgment for the plaintiff below.

*Findley*assigned for error: 1st, That the justice had no authority to acquit (1). — 2dly, That the action was commenced on the day the plaintiff was discharged (2). — 3dly, That the second count contained no cause of action, and the verdict was general (3). — 4thly, That the plaintiff was an infant and sued by guardian improperly appointed (4). — 5thly, That the verdict, instead of finding the defendant guilty, was merely *for the plaintiff,*&c.

*Thompson,*for the appellant.

*Ferguson,*for the appellee.

(1)

*A.*procured a warrant, from a justice of the peace, against R., upon a charge of suspicion of felony. *B.*was thereupon arrested and brought before the justice, who, after examining the case, acquitted and discharged him. B. sued *A.,*in an action of malicious prosecution, and recovered. *Secor*v *Babcock,*2 Johns. Rep. 203.

(2)

 The grounds of a malicious prosecution are, 1. That it was done maJiciously; 2. without probable cause. The want of probable cause is the *gist*of the action, and the record should therefore show the prosecution at an end. Saying that the plaintiff was *discharged*is not sufficient; it is not equal to the word *acquitted,*which has a definite meaning. *Morgan v. Hughes,*2 T. R. *13225, per Bullet, J The allegation of acquittal in the declaration, is matter of substance and not of description: therefore, if the record shows the acquittal to have been on a day before action brought, it is sufficient, and that day is different from the one laid in the declaration, no objection can be made for the variance. *Purcell*v. Macnamara, 9 East, 157, which overrules the case of *Pope*v. *Foster,*4 T. R. 590. The same principle is decided in Phil*lips*v. *Shaw,*4 Barnew, and Ald. 435. That was assumpsit for not indemnifying the plaintiff in becoming bail, at the defendant’s request, for *A.*at the suit of *B.*The declaration stated that *B ,*in *Michaelmas*term, 58 *G.*3., recovered against the plaintiff. The judgment given in evidence was in *Hilary*term: *Held,*that there was no variance, inasmuch as this was not matter of description, but an allegation, m substance, that the judgment had been obtained before the commencement of the action. The Court said, the case could not be distinguished from that of *Purcell*v. Macnamara, 9 East, 157, which was decided after much consideration.

(3)

 Where there is a general verdict with entire damages, judgment may be arrested, or a writ of error sustained, if any one count in the declaration is bad. *Grant*v. *Astle,*Doug. 722. — 1 Chitt. Plead. 394 *—Vaughan*v. *Havens,*8 Johns. Rep. 109. Ld. *Mansfield*calls this an ill founded rule, and laments its existence. *Grant*v. Astle, supra. In *Ind.*the evil is remedied by statute. Ind. Stat. 1817, p. 39; 1823, p. 297. So in *Ky., Stockdon*v. *Bayless,*2 Bibb, 60. The verdict, in Eng., may be amended by the notes of the judge. 2 Will. Saund. 171, b, note 1. — S. P. in *N. Y. Union T. Co.*v. *Jenkins, 1*Caines’ Rep. 381. In case of a general verdict of guilty, upon an *indictment*consisting of several counts, if there is one good count, that is sufficient. *Grant*v. *Astle,*supra.

(4)

 Infants must sue by guardian or *prochein amy,*Co. Litt. 135, b, note, even in company with adults, unless as executors. *Rutland*v. *Rutland,*Cro. Eliz. 377. At common law, if an infant sued by attorney, it was error; but that is now aided by stat. Jeofails, 21 *Jac.*1. 4 *Anne.*Vide 2 Will. Saund. 212, note 5. — Ind. Stat. 1817, p 41; 1823, p. 299. Infancy of the plaintiff, if he declare by attorney,- may be pleaded in abatement. 1 Chitt. Plead. 436. By pleading in chief, the defendant admits the due appearance of the plaintiff. *Schemerhom*v. *Jenkins,*7 Johns. Rep. 373.

Infant defendants mast appear by guardian, *Simpson*v. *Jackson,*Cro. Jac. 640, not by attorney, though sued as individuals, or as executors, with adults. *Frescobaldi*v. *Kinaston,*2 Strange, *783.*— Foxwist v. *Tremaine,*2 Will. Saund. 212 and note 4. Hamm, on Part. 290. If, in C. B., judgment be *against*an infant defendant, he may, in K. B., assign *the fact*of his appearance by attorney for error. *Bird*v. *Pegg,*5 Barnew. and Ald. 418. So, where judgment was *against*several defendants, who appeared by attorney, in the Mayor’s Court, *N. Y.,*it was reversed as to all, in the Supreme Court, for error *in fact,*because one was an infant. *Arnold*et al. v. *Sandford,*14 Johns. Rep. 417. But if judgment is *in favour*of an infant defendant, or of several defendants and one is an infant, the plaintiff cannot assign as error, the appearance of the infant by attorney. The law, says *Abbott,*C. J., will protect an infant where a judgment has been recovered against him; but the circumstance, that the plaintiff below has been defeated in his claim against an infant, shows that. he had no cause of action whatever, and, therefore, that he is not entitled to judgment. *Bird v. Pegg,*supra. In *Ind.,*errors *in fact*cannot be assigned in the Sup. Court, except in cases of wills. Ind. Stat. 1823, p. 132.

*Per Curiam.*

The errors assigned are insufficient; and the judgment is affirmed, with 5 *per cent,*damages, and costs.