
    WASHINGTON COUNTY,
    June Term, 1795.
    William Kerr v. James Workman.
    THERE was a dispute between the parties about the property of two hogs, which both claimed, and Kerr killed. At December sessions, 1792, in Washington county, Workman procured a bill of indictment to be sent up and found against Kerr, for stealing the hogs. When, at a subsequent sessions, this indictment was proposed to be tried, the attorney for the state gave up the prosecution, declaring that the evidence would not support an indictment for larceny, however it might support an action of trespass; and he entered a nolle prosequi. Kerr then brought an action on the case for a malicious prosecution. At the trial of this action, it was proved, that, before the bill for larceny was sent up, Workman had been repeatedly informed by the attorney for the state, and by others to whom he applied, that an indictment was not the proper remedy, but an action only; yet he persisted in prosecuting for stealing.
   President.

As it has been said, that in an indictment for murder, I will say, that in a declaration for a malicious prosecution, or in stating, that express malice is necessary generally to support it, I apprehend the word malice has a technical meaning, and is not to be considered, as in the common conversation or classical sense. Any prosecution carried on knowingly, wilfully, and wantonly or obstinately, for no purpose or end of justice or redress, but merely to the vexation of the person prosecuted, I conceive to be malicious.

The finding of the grand jury, that a bill is true, ought not to be considered as sufficient to shew probable cause, if such finding was on the evidence of the defendant in this action.

Verdict for the plaintiff, 12l. 10s.  