Frequently an offence is committed which no one knows of hat the prosecutor: what the accused has done may not amount completely to the crime charged against him, but yet affords good ground for a prosecution. If a man prosecutes under these circumstances, and the party indicted be acquitted and sue the prosecutor for a malicious prosecution, and what the defendant swore ou the trial cannot be given in evidence for him, no one who was the only witness of the offence, would dare to prosecute for the public — prosecutions would be discouraged and many offenders escape punishment. Had any other witness sworn to the same facts and circumstances, it might be improper to admit this testimony; but as there is no ether, the evidence should he received. It was received and the trial proceeded.
It appeared in evidence, that Moody had undertaken to build an house for the defendant, who procured some tools for the purpsse, which Moody worked with ; they disagreed, anti Moody went off to work for another man who lived in the neighborhood. Pender locked up tha tools in a chest in a house at some distatco from his dwelling-house ; — Moody came there in the euveuing when Pender was absent, broke open the chest, and rfcied away the tools; he called with them at the house of the defendant’s brother' ánd staid there all night, and next day Carried' the tools with him to the place where he was hnilding for the other person before .mentioned, who lived about five miles from Pendér. — A few days afterwards, there was a meet-ir.g at Pender’s, :at which'Moody was, and there Pender told him if He did not bring back the' tools, he would make him pay for them 5 to which Moody replied, “ Well, I can bring them backand 'soon afterwards did faring them back. At the next Arm of the county court, Pender stated to the county solicitor, that Moody had come tó hite plantation in a clandestine manner, broken' the chest and carried the tools away, and afterwards returned them, upon being threatened by him ; and said if these facts could :su'pport án indictment for petty larceny, he would prosecute ;' the county solicitor thought such an indictment might he supported upon those facts, and a bill was preferr ed to the grand jury for petit larceny which they found ; Moody was arrested, tried and acquitted ; a long argument now took place respecting the law arising upon the several parts of this evidence.
Per curiam.-**To support this action, the indictment for ftlo-*30uy must have been prosecuted without probable cause maliciously, and the plaintiff must have been acquitted. The record of the county court proves -that he was indicted hy^the defendant, tried and lawfully acquitted ; the facts might have warranted an indictment for a trespass.
There was no probable.-cause, for an, indictment for felony the defendant did not view it as a felon}' himself j he threatened' to make Moody pay for the tools unless he brought them back. As to the malice, the jury will judge Cam the evidence,, whether;the indictment.was preferred to answer the purposes of revenge ov ill will against him ; the only part of the evidence applicable" to this point, .is the general quarrel which took place between, them.
Verdict for the plaintiff, damages £. 65, and he had judgment-,,