
    *Guerrant v. Tinder.
    
    June, 1820.
    Malicious Prosecution! — Rebuttal of Evidence to Show Malice. — In an action for malicious prosecution, the plaintiff having given evidence of conversations of the defendant to shew malice — the defendant may prove by the committing magistrate what he swore before him.
    Same — Several Defendants — New Trial. — In such an action against several defendants some of whom are found not guilty; on motion for a new trial, by those found guilty, because evidence for them was improperly excluded, a new trial will be granted, as to those found guilty only.
    This was an action for malicious prosecution, brought by J$sse Tinder, against Peter Guerrant Sen. Henry Huff, Young Jarratt, Leonard Wilson, and Peter Guer-rant jr. The declaration sets forth three different wrongs and injuries to the plaintiff. First, that the defendants, maliciously, and without probable cause charged the plaintiff, before Thomas Thompson a magistrate, with stealing a silver watch of he value &c., whereby they procured his arrest and imprisonment. Second, that they maliciously ■ and without probable cause, procured the plaintiff to be brought before the examining court of Franklin county, and remanded to jail for the felony. Third, that they falsely and without probable cause, procured the plaintiff to be indicted for the felony before the grand Jurors of the Superior court of law for Franklin county. The declaration avers the discharge of the plaintiff by the grand Jury; and that the defendants had not farther prosecuted &c.
    The defendants pleaded jointly not guilty.
    At the trial of the cause, the plaintiff having given in evidence, conversations of the defendants relative to the felony charged, the defendants offered Thomas Thompson, the magistrate who committed Tinder, to prove what *they deposed before him, on Tinder’s arrest. The plaintiff’s counsel objected to the admission of his testimony. The court sustained the objection. The evidence was excluded. The jury found Peter Guerrant, sen’r. Henry Huff, and Peter Guerrant, jr., guilty; and assessed the plaintiff’s damages at $500. The other defendants were found not guilty. The defendants found guilty, appealed.
    This cause was three times argued by Wickham for the appellee, and by Gilmer for the appellants. On the first argument the only question made was, whether it was error to exclude the evidence of Thompson. The court requested arguments afterwards, on the difficulty which presented itself, in reversing the judgment as to the convicted defendants only.
    Gilmer for the appellants.
    The verdict has given aggregate damages for three several injuries complained of in the declaration, and put in issue by the pleadings. If this verdict would have been bad on a single count stating any one of these injuries separately, it is bad now, for it is entire. Suppose the issue had been joined on a declaration stating the malicious arrest procured from Thompson. The plaintiff must have proved that arrest to have been procured through malice and without probable cause: malice is the foundation of the action ; Farmer v. Darling, () It may indeed be implied, from total want of probable cause, and it has been held, that the indictment being found “not a true bill,” affords inference of want of probable cause. This applies only to malicious prosecutions before grand juries; since it affords no presumption even, of what passed before the committing magistrate. And if it did, the presumption might be repelled by proof, () In England, it is the practice, to shew *the whole proceedings before the magistrate, () And the plaintiff might, indeed he ought, to have shewn the particular accusation made. The rule must be reciprocate, the defendant then, shall have the same liberty.
    It is not allowing the defendants to testify in their own cause: for the plaintiff has put in issue what they swore, by averring it to be false and malicious: how can this be determined without knowing what they have sworn? In slander the defendant might shew he spoke other words than those charged &c.? I do not say the defendants can prove the plaintiff committed the felony, by their own evidence; though they may do even that, if no one else were present when the felony was committed, () But I say, that the utmost latitude shall be allowed the defendants in giving evidence to rebut the presumption of malice. It is to negative the inference of malice, that the testimony should be allowed. Suppose a witness were to accuse one of a particular offence, and a magistrate should commit him for another, without any cause: should the wrong of the magistrate condemn the witness. Yet condemned he must be, if he be not allowed to prove the precise allegation he made? The evidence then was clearly admissible.
    Note. This cause was argued before a reporter was appointed, and I regret, that no notes were taken of Mr. Wickham’s reply, which could enable me to give its substance. — Edition 1821.
    Shall the venire de novo be against all the defendants, or against those only, who were found guilty?
    It is said, here has been a mis-trial; if so. Tinder produced it, and he cannot complain of his own error. It is said too, the evidence rejected might have been advantageous to him: then he should not have objected to it: had he moved to exclude the evidence, and the motion been overruled, he might have appealed. Can he appeal because a motion was denied at his request? Suppose all the defendants had been found not guilty, it is clear he could not then have reversed the judgment, because evidence was excluded on his motion.
    *What then is the distinction in this case? The acquitted defendants are no longer parties to any pending suit.
    An appeal under our statute, stands in place of a writ of error at common law; no-w a writ of error lies to reverse a final judgment injurious to the party claiming it. ()
    No matter what names are on the record, they only are appellants, whose names are under the ad grave damnum, () A writ of error therefore, can be brought only by one who is injured by the judgment. The acquitted defendants, are not injured; their names ought to appear in the record, but not under the ad grave damnum, () This is what is done. They cannot be appellants, for no judgment can be more beneficial to them, than that already rendered.
    It is said, that the judgment is entire, and must be affirmed or reversed throughout ; how can a judgment acquitting A. be entire with one convicting B.? The parties are severed by the verdict, and the judgment cannot re-unite them. Even if it were entire, it might be affirmed -in part, and reversed in part, ()
    But Verelst and Smith v. Rafael() is conclusive upon the point; it is supported by other authorities, () and it would have been error for the acquitted defendants to join in the appeal. The venire then, must be confined to those found guilt}' by the verdict.
    
      
      For monographic note on Malicious Prosecution, see end of case.
    
    
      
      Malicious Prosecution. — See monographic note on “Malicious Prosecution” appended to principal case.
    
    
      
      New Trial — Several Defendants. — In Kemp v. Com.. 18Gratt.979, itis said: "It is laid down in many of the books, that if there be two defendants in a civil action, and there is a verdict in favor of one and against the other, a new trial cannot be granted to the latter, because the verdict, if set aside as to one, must be set aside as to both. That was the view taken by this court in Boswell v. Jones, 1 Wash. 822; though it held otherwise iu Guerrant v. Tinder, Gilm. 36.”
      See further, monographic note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.
    
    
      
      (a) 4 Burr. 1971.
    
    
      
      Cb) Hare. Co. alt. 161, a. n. 4.
    
    
      
      ) Peake, 288.
    
    
      
      a) Peake. 289.
    
    
      
      (e) 2 Saund. 46, n. 6, 101. e. 101, a. n. 1; 2 lía. abr. 456, B.; Co. bit. 288, D.
    
    
      
      (0 Brewer v. Turner, 1 Sir. 233 : 2 Str. 1110.
    
    
      
      fe) 1 Str. 682.
    
    
      
      (n) IStr. 188; 2 Str. 808.
    
    
      
      (i) Cowp. 425.
    
    
      
      (k) 2 Saund. 101. f; 2 Ba. abr. 461, B.
    
   *ROANB, Judge.

The court is of opinion, that the plaintiff in this case, having given evidence at the trial, of certain conversations of the defendants, relative to the facts whereon the prosecution for felony was founded, with the view to impute malice to them, it was competent to them for the purpose of obviating that imputation, to shew as well what they actually swore before the magistrate, as the manner and circumstances thereof. This is emphatically the opinion of the court, because regularly in an action for malicious prosecution, the plaintiff ought himself to give evidence of what was sworn on the trial. This evidence being rejected by the court in the present case, the judgment must be reversed, and a new trial awarded, in which the evidence offered is to be admitted if requested.

On the question whether the reversal is to be extended to the judgment in favour of the acquitted defendants also, the court is of opinion, that it is not: in which opinion Judge Brooke who did not sit as to the previous question concurs.

The opinion expressed by the court below, although erroneous, gave in itself no right of appeal by motion for a new trial or otherwise. It gave none to the defendants although it rejected their testimony, and was excepted to by them. It was only when a verdict was rendered against them, which may have been influenced by this rejection, that a right to a new trial arose: until this event, the opinion is to be considered as abstract and harmless. If all the defendants had been acquitted no new trial could have been asked by them: nor could the plaintiff have complained, because the opinion was founded on his motion, and rejected his adversaries evidence. That rejection cannot be deemed to have been injurious to him. It was not that rejection, but the defect of his own proofs in relation to the acquitted defendants, which produced their acquittal. Neither he nor *they therefore, in the case oí a total acquittal, could ask for a new trial. It remains, to inquire whether this may be done in the actual case before us, at the instance of the convicted defendants, so as to jeop-ard again, those who have been acquitted. The only ground on which this can be asked for by the former is, that they have been injured by the acquittal of the others, and have an interest in having them convicted. This ground however was overruled by this court in the case of Boswell v. Jones. () It was not deemed in that case a sufficient interest to subject the acquitted defendants to another trial.

If this then was a mere motion for a new trial, it would not be awarded except as to the convicted defendants: and how is the case altered when it occurs in the appellate court?

In the case of Johnson v. Macon, () it was stated by the President of the court, that a motion for a new trial on the ground of a mis-direction, is never made before the same Judge, but before the appellate court, upon an exception taken in the court below. We are of opinion that this ground is quite too narrow. The same Judg-e may upon a deliberate motion fo? a new trial supported by argument and authority, retract a hasty opinion expressed by him in the progress of the trial. That course too, would save the expense and delay of appealing to a Superior court for that purpose. But as he may not retract this error, an application for a new trial may be also made to the appellate court, and to that end, an exception is provided. On the appeal, the application is still in effect for a new trial: and it would • seem, that none are to be subjected thereto by the appellate court, who could not have been so subjected by a direct motion in the court below. In principle there is no difference between the two cases. It is a general principle, that ar. appeal will only lie, in behalf of a party injured by a ^decision, and to the extent of that injury: and this principle equally prevails, in whatever court the motion is made, and by whatever form of proceeding.

We are of opinion therefore., that the Judgment is only to be reversed, and a venire de novo awarded, as between the parties to the appeal. 
      
      (l) 1 'Wasli. 322.
     
      
      (m) 1 Wash. 4.
     
      
      Brooke absent.
     
      tSame — Before What Court Motion Should Be Made. —See, on this subject, the principal case cited in Newberry v. Williams, 89 Va. 299, 15 S. E. Rep. 865; Danks v. Rodeheaver, 26 W. Va. 290, 292; foot-note to Johnson v. Macon, 1 Wash. 4. See further, mono-graphic note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.
      The principal case was also cited in Danville Bank v. Waddill, 31 Gratt. 478.
     