
    HUGHES versus ROSS.
    In an action for malicious prosecution, the felony charged in the affidavit must be substantially averred in the declaration ; but it is not essential to recite the whole affidavit.
    In this case, which was an action for malicious prosecution, in Dallas Circuit Court, the declaration recited the particular felony under which the plaintiff had been prosecuted, but did not set out the affidavit at length. On the trial, the Court excluded the affidavit and warrant from the jury, on the ground of their not being conformable to the averment in the declaration. The averment stated, that the said defendant had charged the plaintiff with having felo-niously stolen, taken and carried away, a roan horse ■ — the. affidavit and warrant, charged the offence to have been committed by the plaintiff and one Red-din- Hall in connection. The plaintiff assigned the rejection of thé affidavit and warrant, as error.
   Lipscomb, C. J.-

This was an action to recover damages for a malicious prosecution. The plaintiff, in his declaration, averred, that the defendant on the ISth day of June, 1827, at the county of! Dallas went and appeared before one David Reeves, Esquire, then and there being one of the justices assigned to keep the peace, in and for the county of Dallas aforesaid, and also to hear and determine divers felonies, trespasses and other misdemeanors committed in said county, and then and there before the said David Reeves, so being such justice as aforesaid, at Dallas county aforesaid, falsely and maliciously, and without any reasonable or probable cause- whatever, on his oath, charged the said Joshua Hughes .with having felo-niously stolen, taken and carried away, a certain roan horse of him, the said Jesse Ross, sen. and upon such charge on oath, he the said Jesse Ross, sen. falsely and maliciously, and without any reasonable or probable cause whatever, caused and procured the said David Reeves, as being such justice, to make and grant his warrant - under his hand and seal, for taking and apprehending of the said Joshua Hughes, &c. The plaintiff- offered in evidence the affidavit of the defendant in the following words — -

“ Whereas, Jesse Ross, sen. of the State and epun- “ ty aforesaid, hath this day made information and “ complaint upon oath, before me, David Reeves, a “ justice of the peace for the said county, that on the u night of the 14th instant, one roan horse of him the “ said Jesse Ross, was feloniously stolen, taken and “ carried away, from the house of Obediah Hulets, “ in the county of Perry, and that he hath just cause “ to suspect, and doth, suspect, that Joshua Hughes “ and Reddin Hall, of the county of Dallas, feloni- “ ously did steal, take and carry away the said horse.
his
“Signed, JESSE x ROSS, sen.
mark.
• “ Sworn to and subscribed before me, this 18th
c( Trm¿> 1£07
“Signed, D. REEVES, J. P.”

The warrant for the arrest of the plaintiff and Reddin Hall was offered in evidence, but the Court rejected, and excluded from the jury, both the affidavit and warrant, as inadmissible evidence, under the plaintiff’s declaration. The rejection of this testimony is assigned for error.

In this form of action the felony charged in the affidavit must be substantially averred in the declaration. If there is a variance between the felony averred in the declaration, and the charge made in the affidavit, it is fatal to the action : but the plaintiff need not recite the affidavit in so many words. It is sufficient if he avers the substantive part of it necessary to the support of his action, and variances in an immaterial part, will not exclude the testimony.

Jn the case of Purcell vs. Macnamara, the declaration stated that the acquittal of the plaintiff had been on the morrow of the Holy Trinity, and the record produced in evidence showed that the acquittal. was on Tuesday after the end of the Easter Term, which was the day of nisi prim, before the LordChief Justice..

This variance was objected to as fatal, and Lord Ellenborough, Chief Justice, sustained the objection, and nonsuited the plaintiff.

On a motion to set aside the non-suit, the Court of King’s Bench, composed of the Chief Justice Grose, Lawrence and LeBlanc, Justices, held that the variance was not material; and it was on the principle, that the acquittal was the matter of substance essential to be stated; and it was of no consequence where it took place, so that it was before the commencement of the action. So in the case of Philips vs Shaw. In assumpsit, for not indemnifying the plaintiff, in consequence of his having become bail for one A, in an action at the suit of B, it was stated that B at Michaelmas term 58, George III, recovered against the plaintiff. The judgment given in evidence was at Hillary term. The Court held that this was no variance, inasmuch as it was not matter of description, but an allegation, in substance that the judgment was rendered before the commencement of this suit. The case of Wheelock vs. Childress, decided in this Court, but not reported, was expressly on the ground of a variance in the felony charged in the affidavit from that averred in the declaration. In the case of Bennet vs. Black, the affidavit disclosed facts amounting to a felony, but not a robbery; the warrant was for a robbery, and the declaration averred that the defendant had charged the plaintiff on his affidavit with robbery.

The variance was considered by this Court as fatal, on the ground, that it did not charge the same kind of felony in the declaration, as the one charged in the defendant’s affidavit. The doctrine seems to be well settled, that the averment in the declaration must substantially charge the particular felony or misdemeanor charged in the affidavit. In the case under consideration, the plaintiff does not assume to recite the whole affidavit in his declaration, he only states the particular felony, of which it charged him: this was.all that was required of him. We are therefore of the opinion, that the variance, if any, was not material, and that the judgment of the Circuit Court must be reversed and the cause remanded.' 
      
      9East.157
     
      
      Barnwell & Alders. 477.
     
      
      1Stewart 494
     