June 8. DODGE VS. BRITTAIN. new trial if NEW TRIAL. Practice. The Court of Errors will not grant a LARCENY. Essence of it. Receiving goods with the owner's consent, from his Dodge caused Brittain, a female, to be arrested on a justice's warrant upon a charge of larceny. She was recognized to appear in the circuit court of Washington, at March term, 1835, to answer the accusation. There Dodge had a bill of indictment preferred to the grand jury, charging her with stealing and with receiving stolen goods; but the jury refused to find it, and she was discharged. She thereupon sued him in an action of trespass on the case for a malicious prosecution at September term, 1835. He pleaded not guilty; and on the trial, at July term, 1837, before PowELL, Judge of the first circuit, and a jury of Washington, the plaintiff below read the proceedings on the criminal charge, and introduced testimony tending to prove an alibi, and that she had sustained a good character. The testimony of the defendant below tended to prove that the plaintiff had received the lost goods from one of the defendant's slaves, by means of whom the defendant had attempted to entrap the plaintiff, whom he had previously suspected of similar practices; and also to prove that the plaintiff had not maintained an unblemished character. The jury found a verdict for the plaintiff below, and the defendant moved for a new trial, which having been refused by the court, he appealed in error. Those portions of the charge of his Honor, the circuit judge, to the jury, which were debated in this court, are stated in the opinion of the court, TURLEY J. delivered the opinion of the court. This is an action for a malicious prosecution, in which the plaintiff below recovered a judgment for the sum of five hundred and fifty dollars; which judgment is sought to be reversed, because the verdict of the jury is contrary to the evidence, and because the law was erroneously expounded by the court. Whatever may be the hardship of this case, on the part of the plaintiff in error, it is impossible for us to relieve him, upon the facts as stated in the bill of exceptions. We cannot say that the verdict is not warranted by the evidence. The jury were the proper judges of the credibility of the witnesses, and of the weight of the testimony, and this is not a case in which all the proof is on one side, and we have repeatedly said, that we will not reverse if there be any proof, by which the verdict can be sustained. The question then is, was the charge of the court correct? It is assailed on two grounds, 1-because the court said to the jury, “It was alledged, on the one side, that a felony had been committed, and on the other, that the whole matter was a false conspiracy, supported by perjury, the court would leave it to the jury, on the whole evidence, to determine how the truth was: if, as alledged, on behalf of the defendant, a felony had been committed, plaintiff could not recover: if, on the other hand, it were all false, the plaintiff should recover; and the jury were the sole judges of what damages should be given." We are not able to perceive any error in this part of the charge. The court states to the jury the point in controversy arising out of the testimony, viz., that the defendant contends that the plaintiff is guilty of the felony charged, and the plaintiff, that she is innocent, and that the charge is got up by a conspiracy by the defendant and others, and is supported by perjury. Whether this be so or not, the court very properly says, is a question for the determination of the jury, depending upon the facts proven, and the fair deductions to be drawn from them; and the proposition is most unquestionably true, that if the plaintiff were guilty of the felony charged, she had no cause of action, but that if the charge originated in a conspiracy, and was supported by perjury, she was entitled to a verdict, and to such damages as the jury, in their discretion, might think proper to allow. If it resulted as a necessary consequence, from this part of Dodge VS. Brittain. the charge, that the plaintiff, unless she were guilty of the felony, was, in the opinion of the court, entitled to a ver dict, it would be erroneous. But no such consequence follows, because the court expressly says, in that part of the charge immediately preceding, "that a party might have probable cause to institute a prosecution for felony against an innocent person, and, in that case, no action could be maintained. 2. It is said, that the charge is erroneous, because the court said to the jury, "If defendant agreed or consented that the negro should let the plaintiff have the bacon, it would not have been, under the circumstances, a felony in plaintiff to have taken or received it, but that it would be at matter proper to be taken into consideration in mitigation of damages." The truth of this proposition is equally as evident as that of the first. No larceny can be committed of property, the possession of which the owner parts from voluntarily. All the authorities are express upon the point, that to constitute the crime of larceny, possession of the property must be taken by the thief invito domino. The charge does not contradict the principles of the cases referred to by the counsel for the plaintiff in error. They, none of them, go further than to say, that a man may direct a servant to appear to encourage the design of the thieves, and lead them on till the offence is complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed; that a servant, by the desire of his master, may show thieves, breaking into the house for plunder, where the plate is kept, and if they remove it, they are guilty of larceny; and that if a man is suspected of an intent to steal, and another, to try him, leaves property in his way, which he takes, he is guilty of larceny. In all these cases, the possession of the property remains with the owner, and a trespass is committed in the taking by the thief. But such would not be the case, if the master had directed the servant to deliver the property to the thief, instead of directing him to furnish facilities for his arriving at the place where it was kept. There is then, in our opinion, no error in this case, we affirm the judgment of the court below. and NOTE. In the Civil Law, when an act is said to be done per injuriam, injuriously, it is equivalent to wifully, maliciously, and unlawfully, these being the ingredients of injuria. There the actio injuriarum embraced most, if not all, of our actions of trespass and trespass on the case. It was of course the remedy for that particular class of injuries, which are redressed with us, by the action on the case for malicious prosecution. These injuries are assigned, in that system as in ours, to the class of wrongs to the character of the party aggrieved. Because, as some degree of infamy is ascribed to the temper of mind which leads its prossessor to neglect, or refuse to perform, or to violate, his civil duties and obligations, unless legally compelled thereto, so to impute it to a man by suing him maliciously and without probable cause, is treated, in both systems, as a species of defamation. By the Civil Law, this action lay, in general, for wilfully, maliciously, and unlawfully suing a man in any tribunal merely for vexation; and also in the fol lowing particular cases, namely, for putting seals, without a judicial order, on an absent debtor's house with intent to injure him; for refusing to receive sufficient or justified bail to an action; for suing sureties with intent to injure the principal, knowing him to be prepared to pay, &c.; for suing as his debtor, one known to the plaintiff not to be his debtor; for advertising a thing for sale in the character of a pledge received from a party from whom it had not been so received, for the purpose of injuring his credit or character, &c. In all these cases, three things must have concurred to make the act done an actionable injury. It must have been done, 1. voluntate injuriæ, 2. in despec. tum persona, 3. non jure; that is, wilfully, maliciously and unlawfully, or without probable cause. As to the necessity of the ingredient of malice in this species of action, there is a class of cases in the English books well adapted for illustration. They were actions for omitting to countermand process already issued, after the debtor had settled the demand. Scheibel vs. Fairbain, 1 Bos. & Pul. 388, is the leading case, and it was followed by Gibson vs. Chaters, 2 Bos. & Pul. 129, and Page vs. Wiple, 3 East, 314, in all of which it was held that malice was indispensable to the sustaining of the action. Cooper's Justinian, 629; Vail vs. Lewis, 4 John R. 450; Pothier's Pandects, Book 47, Title 10; Justinian's Institutes, Book 4, Tit. 4, 1. But besides being done maliciously, the act must also have been done, non jure, unlawfully-without probable cause. What is probable cause? Circumstances and facts sufficiently strong to excite in a reasonable mind suspicion that the person charged was guilty, per Judge Washington in Munus vs. Dupont, 2 Brown's R. App. 65, cited 3 Dev. R. 455; adequate and reasonable ground for setting on foot the inquiry, 1 Chitty's Genl. Pr. 49; good cause to think the party guilty, per Judge White, Cooke's R. 103. The onus of proving want of probable cause lies on the acquitted defendant, 1 Chitty's Genl. Pr. 50, note (ƒ) and authorities cited. Whether the judge ought to leave it to the jury whether there was probable cause, see Chitty in the place cited, 2 Barn. & Adol. 845, 857, 22 Eng. Com. L. R. 195, Kelton vs. Bevins, Cooke's Rep. 90, 107; 2 Yer. 329, Williams ve. Norwood, in which case at page 334, it is stated by Judge Whyte, from Campbell's R., "that where the facts to. show probable cause are ascertained. whether they amount to a defence or not, is to be decided by the judge." Dodge V. Brittain. RODGERS VS. ELLISON. IDIOT AND LUNATIC. How to be sued. An action at law cannot be sustained against a person in the character of guardian of a lanatic, without joining the non compos in the action as a party defendant. 2 Saund. 333, n 4. BAME. Pleading-misjoinder. If a count against a party as guardian of a lunatic® be joined with one against him in his own right, it is a misjoinder, and may be ex. cepted to by demurrer, or in arrest of judgment. Samuel Smith, who had a considerable estate left him by his deceased father, which had come into the hands of his brother Henry Smith, was committed to the jail of Cocke county as a dangerous lunatic, according to the act of 1797, c 41, § 2, by the order of three justices, on the 27th of June, 1833, where he remained till the 26th of November following, being one hundred and fifty-four days. His board, washing, &c. during his confinement, amounted to $65 12 cents. Ellison, the intestate of the defendant in error, was jailer, and this action of assumpsit was brought by him, in his life time, in Cocke county court, on the 18th of January, 1834, against Rodgers, who was guardian of the lunatic, to recover said sum of $65 12 cents. The declaration, as filed in the county court, contained three counts, all of them against Rodgers as guardian. He pleaded, 1-non assumpsit, upon which plea issue was joined; 2-That he had not, at the commencement of the action, nor at any other time, any of the estate of the lunatic in his hands, to which there was a demurrer and joinder. The court sustained the demurrer; and on the trial of the issue, the plaintiff had a verdict and judgment for the amount of his demand. Rodgers appealed to the circuit court of Cocke, where the plaintiff was allowed to file an additional count, against the guardian in his own right averring his promise to pay, &c., in consideration of forbearance. The case was tried at January term, 1838, before his Honor Judge Anderson, of the 12th circuit, and a jury of Cocke. The defendant in error obtained a verdict. Rodgers moved for a new trial, which his honor refused. He filed reasons in arrest of judgment, 1. That the action was' misconceived, and could not |