
    Ed. Lipford & wife v. Aaron M’Collum.
    
      Tried before Mr. Justice Q’Neall, [sitting for Mr. Justice Martin) at Union — Fall Term, 1832,
    abif causePi“bá d«iceis siiowil/" anabsencé0™® comt to order a
    This ,was an action for malicious prosecution.-pLiíníifFj Mrs. Lipford, had been prosecuted for P ury,■ in swearing to an account against her father, James M’Collum, for services rendered to him. The had entered a nol.-pros. on the.warrant, on ground, that the'oath was extra-judicial; and, thereupon, an order for her discharge, was made.— The plaintiffs went into evidence to shew the want oí probable cause for the prosecution, the rnalice of the defendant, and that he had procured James MiCol-lum (who was represented to be aged and imbecile,) to prefer this accusation; and was, therefore, himself the real prosecutor. When the plaintiffs closed, a motion was made for a non suit, on the ground that the evidence did not shew a want of probable cause. The motion was granted. . The presiding judge in his report, remarks that “ What is probable cause, is a question of law for the Court., If there is any evidence shewing an absence of it, the case should, go to the jiiry, otherwise it .is the duty of the Court to order a non suit. ' , ,
    “In this case there had been no act of the Court sufficient prima facie, to create a belief that there was a want of probable cause. The solicitor, on entering the nolle prosequi on the back of the warrant, had assigned his reason, to wit: that the oath was extra-judicial, and therefore, perjury could not be predicated on it. This reason was true and legal; but yet, an extra-judicial false oath would ■ be reasonable and probable cause for the institution of a'. prosecution for perjury to any one, not a lawyer.
    “The proof went to create a belief, that there was no just foundation for the charges contained in the account, and was, therefore, rather calculated to create a belief, that there had been a false swearing, than that there had not. The services charged, were rendered for the plaintiff’s father and mother; they were rendered at intervals ; they were acts of kindness, to be expected from a child, by a parent.— There was no proof that authorized a belief that any charge was intended or expected to be made, until the unfortunate differences between the parties took place, and until they were told by counsel that he thought them entitled to remuneration for the services. This would, it is true, have been evidence enough to have screened Mrs. Lipford from a conviction for perjury, if the oath had been judicial; but still, it does not negative probable cause. For, in law, as well as justice, she had no color of claim to he paid, in money, by her father, for her gratuitous services to him and her mother. This absence of legal and moral obligation to pay, might have induced any reasonable mind to conclude, that perjury had been committed, in swearing to the justice of an account, predicated upon such charges.”
    The plaintiffs appealed and moved to set aside the npn suit. '
    Williams & Clowney, for the , motion.
    Thomson & Dawkins, contra.'
   Per Curiam.

This Court concurs in opinion, with , the presiding judge : The motion to set aside the non suit is, therefore, dismissed.  