
    
      Patrick Sanders v. Francis Rollinson.
    
    Where, to sustain an action of slander, the proof sought to be made was, that the slander was uttered and published by an affidavit, made by the defendant ' before a Magistrate, imputiug to the plaintiff the offence of hog stealing, and the only evidence of the^existence of the affidavit, was an imperfect memorandum of it in the hand writing of the Magistrate, who was alive and out of the State, and there was;no sufficient proof of its being, in whole or in part, a copy — even if the original affidavit was presumed — the Court sustained the decision of the Circuit Judge, granting a non-suit.
    The action of slander does not lie for a criminal charge made by an affidavit before a Magistrate; an action on the case for malicious prosecution, malicious arrest, or for maliciously suing out a search warrant, as the case may be, is the only remedy to which the plaintiff can resort for redress of the civil injury which he may have sustained.
    
      Before Mr. Justice Withers, at Kershaw — Spring Term. 1848.
    The action was for slander; the proof sought to be made was, that the slander was nttere.d and published by an affidavit made by the defendant before one William Ward, a Magistrate, imputing to the '¡plaintiff the offence of hog stealing. The original affidavit was not produced. The plaintiff endeavored to account for its existence and loss, in order to let in a memoranclunj,," in the Magistrate’s hand writing, (the Magistrate being alive and out of the State,) in the words following : “ Copy: — That about the first of December, A. D., 1845, he lost1'a certain chattel, viz; one hog, of the value of two of. ¡three dollars, and hath cause to suspect, and doth suspect,;that Patrick Sanders and Wm. Sanders feloniously did steal, take and carry away the same. [Signed^ Frctncis Rollinson.
    
    To establish the existence and loss 'óf ’the original affidavit, of which it was alleged the above memorandum, so far as it goes, was a copy, and in order to get in evidence the memorandum, the plaintiff adduced the book of Wm. Ward, which he was required to keep as a Magistrate, which was on file in the Clerk’s Office. It contained the entries specified in the first ground of appeal. It contained also the following entry: “Richard Sanders vs. Francis Rollinson, for marking hog: Prosecutor, Richard Sanders; Bond to prosecute, Daniel Beauford, security, April Term, 1846. Prosecuted gave bail — bond $500; John Ricks, security. Parties were present; plaintiff made oath defendant had marked his hog; defendant did not attempt to disprove it. Constable, Peter Beauford.”
    To the same point the Deputy Clerk was examined : said he had searched the office of the Clerk, and could find no original of the above memorandum — that he once saw an original affidavit by Rollinson, but it was against Richard and Patrick Sanders, and not against William. That he remembered papers filed by Ward, charging, at the instance of Rollinson, Richard and Patrick Sanders, separately, with hog stealing, and he made out Ward’s account for the Legislature. A bill was made out against Richard Sanders, and ignored. Richard confessed to marking the hog.
    
      Peter Beauford was called for the plaintiff. The memorandum, above quoted, had been put into the hand of the witness, but he evidently did not read ir. He said he arrested Patrick Sanders on a warraut, and upon the counsel for plaintiff enquiring whether the warrant was upon an affidavit, of which the memorandum, was a copy, he answered affirmatively ; but he afterwards said there was no affidavit against William Sanders. (It will be observed that the paper offered included William as well as Patrick.) He said he did not read the affidavit, made by Rollinson, nor bear it read. On the occasion of making the affidavit Rollinson did not say that plaintiff had stole a hog. Some week or so after, he said he sued plaintiff to keep him from being a witness ; and said it before he sued him. He heard defendant say he could prove that Patrick held the hog till Richard altered the mark.
    
      This was the whole evidence to show that defendant had made an affidavit, charging hog stealing upon the plaintiff; that it was gainst Patrick and William Sanders, and that the memorandum produced, was a 'dopy, to be admitted upon loss of the original.
    It should be added, however, that .plaintiff produced a bill against Richard Sanders, charging' him with hog stealing; but the presiding Judge held this irrelevant, having no connection with the like charge against Patrick, the plaintiff. He says: “The matter occurred to me thus: Ward was alive, and could have been examined — at .best, the memorandum was but his declaration; it did not present on its face that it was intended to be the copy of an affidavit; for it did not exhibit either the usual commencement, the jurat, or the certificate of the Magistrate, The Deputy Clerk thought there never was returned such an affidavit as was indicated in the memorandum produced. If the entry in the book of Ward would carry the presumption that he had required an affidavit from Rollinson, how did it appear that the paper presented was, even so far as it went, a true copy of it ? Beauford, the constable, threw no light on the matter — for though he assented to an interrogatory by counsel, in the first place, he showed afterwards he did not understand its purport, and when his attention was called to the point, on cross-examination, he expressly denied that there was any affidavit against William Sanders.
    “I saw, therefore, no evidence of the existence of the affidavit in question, and of course, none of its loss. But if all that be presumed, I could see none before us to show that we had before us a copy of it in whole or in part.
    
      u The plaintiff offering no other testimony of the uttering and publishing the words by defendant, the motion for non-suit was granted.”
    The plaintiff moved to set aside the non-suit, upon the following grounds:
    1. Because these entries endorsed on the Magistrate’s docket, viz: “The State vs. Richard Sanders, for hog stealing; prosecutor, Francis Rollinson — warrant issued ZQfh of December, 
      1845; bond to prosecute, William Smith, security; prosecutor failed to find bail; committed to jail; commitment issued 3d of January, 1846confessed of having altered the mark of said hog; constable, Peter Beauford. The State vs. Patrick Sanders and William Sanders, for hog stealing : prosecutor, Francis Rollinson; warrant issued 11 th of March, 1846; bond to prosecute: Dennis Freeman, security; five hundred dollars; prosecutor failed to appear, and his witness knew nothing of the charge; dismissed the case; Peter Beauford, constable.” The record in the case of the State vs. Richard Sanders; the evidence of the Clerk of the Court that he had searched for and could not find the original affidavit among the papers lodged in his office by Ward, the Magistrate, who had removed from the State; together with evidence of Beau-ford, (not objected to) that the paper offered in evidence was in the hand-writing of the said Magistrate, and that it was a copy of the said affidavit which was on the warrant with which he arrested the plaintiff, was sufficient proof to make the said copy evidence in the cause.
    
      2. Because, whether the existence and loss of the original affidavit, and the copy offered in evidence, were proved, was a question for the jury; and it is respectfully submitted that the copy, with the evidence above stated, should have been submitted to the jury.
    3. Because it is certain, from the evidence detailed in the first ground, that the witness was mistaken in stating, on his cross-examination, that the affidavit was against Patrick Sanders and Richard Sanders; and it is respectfully submitted the cross-examination was irregular and illegal, and could not destroy the whole force of the said evidence; and therefore his Honor erred in not submitting the whole case to the jury.
    4. Because his Honor ruled that the record in the case of the State vs. Richard Sanders was inadmissible as evidence in the cause.
    Smart, for the motion.
    W. F. De Saussure, contra.
    
   Withers, J.

delivered the opinion of the Court.

It appears to this Court quite manifest, as it did to the Judge on the Circuit, that if an original affidavit be presumed to have been made by defendant against Patrick and "William Saunders, charging upon them hog-stealing, still there was no evidence to show that the paper produced was a copy of it, in whole or in part. The sole circumstance to show that the memorandum referred to is a copy of any affidavit, is the fact that it is in the hand-writing of Ward, the Magistrate before whom the original proceedings on a charge of hog-stealing were instituted. Suppose a witness weré introduced to state that Ward said the paper offered was a copy — would he be heard? Surely not. Now the evidence offered is of less force, for though the paper offered in evidence is in "Ward’s hand-writing, we do not know even what he represents in relation to it; of what it is a copy; whether it was ever sworn to, <fec.

The rules of evidence referred to at page 485 of the 2d vol. of Cowan and Hill’s notes .to Philip’s Evidence, aim only to elucidate the general doctrine, well settled, that a public officer is presumed, prima facie, to have done, as to preliminary matters especially, what the law required.— This can help the plaintiff only thus far, to wit: that a warrant issued by Ward against Patrick and William Saunders shall be presumed to been founded upon a proper affidavit by the prosecutor. But how shall this advance the inquiry whether the paper produced was a copy of it?

If, however, the plaintiff could escape this difficulty, and had even been able to produce the original affidavit, he would have encountered anon-suit upon aground not to be shunned, according to the case of Vausse v. Lee, 1 Hill, 197. In that case, Yausse had charged upon Lee, by affidavit before a Magistrate, the felony of stealing negroes; and the following language is held by the Court of Appeals: “ It is necessary to preserve the distinct boundaries between actions. The action for slander is a species of action on the case, differing in form, rules of evidence and pleading, from the action on the case for malicious prosecution, malicious arrest, or maliciously sueing out a search warrant. The latter is the only remedy to which the plaintiff could have resorted for a redress of the civil injury which he alleges he has sustained.” The non-suit, granted on the circuit in that case, was accordingly sustained.

The like result must attend the case now before us, and the motion, therefore, is refused.

Richardson, J. O’Neall, J. Evans, J. and Frost, J. concurred.

Motion refused.  