
    David Richards v. James Foulke.
    Justice taking examinations in a criminal prosecution can not, in a subsequent action for malicious prosecution, testify to the facts testified before him.
    This cause came before the court, upon a writ of error to the ■court of common pleas of Harrison county, and was adjourned for decision here, by the Supreme Court of that county.
    The original action was for a malicious prosecution, and the plaintiff in error was the plaintiff in the cause. The plea was, not guilty; and at thé trial, a bill of exceptions was taken, by the plaintiff, to the opinion of the court, admitting certain evidence offered by the defendant, which is thus stated : “ The plaintiff introduced Samuel Dunlap, Esq., the- magistrate who received the complaint of the defendant against the plaintiff, issued his warrant, and recognized the plaintiff, as stated in the declaration, to prove the want of probable cause, who being sworn and examined in chief, the defendant offered to prove by said witness, on his cross-examination, the facts testified by other witnesses than the defendant, on the examination by him held as a magistrate, on the complaint of said defendant, upon which he ordered the plaintiff to recognized.” To this evidence the plaintiff objected; but the court received it, and signed the bill of exceptions. There was a verdict and judgment for the defendant. To reverse which, the plaintiff brought this writ of error.
    Goodenow and Bostwiok, for plaintiff,
    cited 2 Phil. Ev. 112; Peake’s Ev. 288; 1 Term, 493; 7 Cranch, 195; 4 Cranch, 76; 1 Mun. 288, 291; 2 Wash. 281.
   *By the Court .

The evidence admitted in this case was clearly inadmissible. The witnesses who testified before the justice, should have been called to testify to the facts that they narrated before him. His recollections of what they stated'upon oath, was of inferior authority to their own statements to the jury. The question to be decided was, not the guilt or innocence of the plaintiff, but whether there existed a probable cause for the prosecution commenced against him by the defendant. This the jury were required to decide, not upon the evidence given before the justice, but upon the facts of the case, and the defendant’s knowledge of these facts. Of these facts they could best judge by hearing the witnesses themselves. To substitute the relation of the justice, as to their testimony before him, was a violation of the plainest rules of evidence, that the best evidence within the power of the party should be given, and that secondary evidence shall never be admitted, unless it is made manifest that that which is better can not be obtained. The judgment must be reversed, and the cause remanded to the court of common pleas for further proceedings.  