
    A. L. Campbell vs. Lewis O’Bryan.
    Case for malicious arrest under warrant to keep the peace. Nonsuit ordered for want of evidence of malice and want of probable cause.
    BEFORE WITHERS, J., AT C0LLET03ST, FALL'TERM, 3855.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ The plaintiff’s action was for malicious arrest. It was in evidence, that Lewis O’Bryan was a candidate for the House of Representatives of the State Legislature, for St. Bartholomew’s Parish, and was elected; . that there was much excitement attending the canvass; that the defendant, and others, who were included in a warrant for surety of the peace, was opposed to the election of O’Bryan; that he had spoken strongly against O’Bryan’s pretensions, but not in a way to lead to the idea that he designed any personal violence; that on the 11th October, 1854, O’Bryan caused to be issued, upon the usual affidavits for surety of the peace, warrants against sundry persons, the plaintiff among the rest; that on the next morning, October 12th, O’Bryan, being advised that the parties he dreaded were in an attorney’s office, in the hands or under supervision of a constable, told the Magistrate that he was willing the .plaintiff should be released, as he (the plaintiff) had satisfied him he need not dread him; that .the plaintiff, when informed of this by the Magistrate (who said he did not think he had a right to release him), declined to be released, and went to jail with the party, and remained there some hours ; was brought thence with the party before two Magistrates, after candle light, and the plaintiff then, in obedience to the judgment of the Magistrates, executed his own recognizance, without surety, to keep the peace for the space of one month towards O’Bryan. It appeared further, that plaintiff was reputed to be of peaceable character, but (as witness expressed it) he was a man of “pluck.”'
    “ Upon this case a nonsuit was moved for on various grounds:
    “ 1. Because there was no proof that the man who took the affidavits and issued the warrants was in fact a Magistrate. I was not affected by this — because I would have heard that proof.
    “. 2. Because the confinement in jail was quite voluntary on the part of plaintiff, since O’Bryan desired him to be released; and it was contended, that the allegation of imprisonment embraced only the confinement in jail, and not custody by the constable. I was of opinion, that there was a sufficient allegation of the cause of action, as arising out of the constable’s custody, for nothing was alleged as to arrest.
    “ 3. Because there was no proof whatever of malice, or of want 'of probable cause; and in this view I concurred, and granted the motion for nonsuit. I could see nothing to support the allegation of malice, and a want of probable cause, either or both; the evidence of plaintiff’s general peaceable character, seeming to be alone relied on for that purpose. That I thought wholly insufficient to raise any presumption of necessary elements of the action, and I could perceive nothing else in evidence to be added to it. An appeal goes up upon the accompanying grounds.”
    The plaintiff appealed, and now moved this Court to set aside the nonsuit, on the grounds:
    1. Because the absence of probable cause was shewn (as far as such proof could be made) by the good and peaceable character proved for plaintiff, and it ig respectfully submitted, that the absence of probable cause, in a case of this sort, being proved, malice may be presumed therefrom, and that this ought to be left to the jury to presume.
    2. Because there was enough in the evidence, from which malice might be inferred, either by the judge or jury.
    3. Because the nonsuit was in other respects contrary to law.
    
      Williams, Perry, for appellant,
    cited 2 Saund. PI. & Ev., 658, et seq.; Braveboy vs. Ooelcfield, 2 McM. 274; Morgan vs. Livinqston, 2 Rich. 585 ; 1 Hill, 82; Williams vs. Taylor, 19 Eng. C. L. R. 50.
    
      Henderson, contra,
    cited Ford vs. Kelsey 8? Deas, 4 Rich. 365 ; Horn vs. Boone, 3 Rich. 307 Fulmer vs. Harmon, 3 Rich. 576 j 2 Stark. Ev. 913, n.
   The opinion of the Court was delivered by

Wardlaw, J.

It may be true, that for all which followed the defendant’s expression to the Magistrate of his willingness that the plaintiff should be released, the plaintiff ought to' blame himself, or the Magistrate, rather than the defendant: but the previous arrest, if any was made, and it was procured by the defendant maliciously and without probable cause, may have sustained this action for malicious arrest.

From the want of probable cause, malice may, in actions of this kind, be inferred; but the inference may be rebutted by the plaintiff. So' that the question is, in the first instance, whether the defendant made his application to the Magistrate without any such ground of apprehension as would have influenced a reasonable man; and if so, then, upon the circumstances contained in the plaintiff’s proof and those adduced by the defendant, whether the application was made from such motive, or whether the defendant was really, no matter how unreasonably, under apprehension of personal violence from the plaintiff.

The preventive justice, which a peace warrant is intended to effect, should not be discouraged; nor, on the other hand, should the injustice and oppression, which may be wrought by means of such a warrant, be unrestrained. To the careful exercise of a sound discretion in the Magistrate, both in the granting of the warrant and in further proceeding when the accused person has been brought before him, must we mainly look to maintain the efficiency of this wise process of the law, and to guard against it§ abuse. Where the Magistrate has been imposed upon, or has acted indiscreetly, damages according to the circumstances may, upon due proof, be recovered in an action such as this; but the judgment of the Magistrate, involved in every step taken by him, must be presumed correct, until some wrong of the defendant, by which judgment was misled, has been shewn.

In this case, upon a proper affidavit and a statement of the grounds of his apprehension, made by the defendant before a Magistrate, the warrant was granted; upon the accused persons being brought before him, the Magistrate issued a mittimus ; and upon the prisoners being formally brought before two Magistrates by habeas corpus, their recognizances were taken. To the general circumstances of the transaction, the plaintiff has, by his proof, added only his good character, and that not such as to render violence from him incredible. This Court agrees with the Circuit Judge, in holding that something more was required. It may be hard to prove that the defendant’s application to the Magistrate was not the result of real apprehension, but some declaration or conduct showing a sinister purpose, some evidence that the professed grounds of belief were unsubstantial and unreasonable, or some other direct or circumstantial proof that legal process was abused without probable cause, and with malice, will hardly ever be wanting in a proper action of this kind.

It appears that the nonsuit was properly granted, and the motion is dismissed.

Q’Neall, Withers and Whitner, JJ., concurred.

Glover, J., concurred, but was absent at the delivery of the opinion.

Motion dismissed.  