
    McNeese v. Herring and others.
    An action for malicious prosecution cannot be maintained without proof of the want of probable-cause and malice.
    Appeal from Titus. This was an action fora malicious prosecution. Tiie appellant, who was plaintiff below, was prosecuted for a misdemeanor by tiie defendant Hemug, before tiie defendant Turner, a justice of the peace. lie was convicted, fined ten dollars, and committed to prison for one day and until the fine and costs should he paid. The defendant Witliee was tiie sheriff of tiie county who executed the mittimus issued by tiie justice for the imprisonment of the plaintiff. Tiie fine and costs remaining unpaid, tiie plaintiff remained in prison for several days and until released on habeas corpus. He brought suit against tiie prosecutor, the justice, and the sheriff.
    On tiie trial tiie plaintiff offered to prove that tiie justice did not enter his judgment on paper or on his docket until the fourth day after tiie plaintiff was committed by him to jail, and that it was not then entered in open court or in the. presence of tiie plaintiff, who remained in jail. He further offered to prove that lie gave notice to the sheriff that judgment had not been entered, and demanded his release. This evidence was objected to by the defendants and excluded by the court. No other evidence was offered by tiie plaintiff. There was a verdict and judgment for the defendants, and the plaintiff appealed. ,,
    
      J. C. Everett, for appellant.
    £. F. Moseley, for appellee.
   Wheeler, J.

No evidence appears to be offered by the plaintiff to prove that the prosecution was malicious or without probable cause. Títere was no ruling of the court which prevented the plaintiff from introducing such evidence. And without proof of tiie want of probable cause and malice this action cannot be maintained. (Griffin v. Chubb, 7 Tex. R.) There is no error in the judgment, and it is affirmed.

Judgment affirmed.  