
    Behrnes v. Coxe.
    I-n an action for damages for a malicious prosecution, instituted against'- plaintiff On a charge' of stealing a slave, the testament of a person by whom the slave was devised to plaintiff's wife, and proceedings- had in the court1 of probates by the defendant as co-tutor of other' minor heirs of the testatrix, and other proceedings connected with the administration of the’ Buccessioh of the testatrix, are admissible in evidence to show waiit of probable causé for' the prosecution-. Per Ouriam: It devolved on the plaintiff to show malice ; a fact which is1 usually inferred from the want of probable cause for the-prosecution.
    An objection that the sum for which a verdict is found in-an action for damages-is expressed-in figures, is too late after appeal. If it be a defect, it is one whicli might have-been-corrected' on the trial below! at the request of either party". C. Pi 5281
    Appeal fromthe District Court of East Baton Rouge,- Bwk, J.-
    
      A.- AT.Dunn, for the plaintiff. /?. S, Lyons, and- Loucks, for the appellant.
   The-judgment of the court was- pronounced by

King, J.

This is an action for a malicious prosecution'. The plaintiff avers-that the defendant maliciously intending to injure him, and witho.ut reasonable or probable cause, charged him, on oath before a justice of the peace, with-having. stolen a negro girl slave, named Maria, and caused- him- to- be arrested and taken before a justice of the peace, by whom he was discharged. i He-prays for five thousand dollars damages, for the malicious prosecution and wrongful arrest. The j.ury gave a verdict in favor of the plaintiff for five hundred dollars, and the defendant has appealed. The defendant denies generally the allegations of the plaintiff’s position, but admits that he made an-affidavit for the purpose of obtaining the negro girl in question, in which he charges the-plaintiff with improperly taking her from his possession, but upon the slave-being returned he desisted from the prosecution.

The answer is substantially an admission that the plaintiff instituted the prosecution, an averment that it was founded upon sufficient probable cause, and a denial of malice. It appears from the evidence that, a short time before the occurrences which led to this suit, the plaintiff intermarried with Elizabeth Williams, a minor daughter of the defendant’s wife, by a previous marriage. The mother, as the tutrix, administered the property of her children, including the slave in question, which had been devised to the plaintiff’s wife by her grandmother, Mary Y. Williams. Shortly after the marriage of .the plaintiff, the defendant and his wife cansed proceedings .to be instituted by which the former was restored to the tutorship of her minor children, which she had forfeited by her second marriage, and her husband was appointed co-tutor. They .applied jointly for several orders, and among others fora sale of property belonging to the succession of Mary Y. Williams, for the purpose of paying debts which were alleged to be still due, although a previous sale had been made, for the same purpose, which produced a sum far exceeding the amount of debts then represented to be due by the succession. While these proceedings were in progress the slave in question left, or was removed from, tire possession of the defendant, and went to the plantation of the plaintiff’s father, where the plaintiff resided, but through whose agency is not distinctly shown. The defendant thereupon made oath before a justice of the peace, “that a slave named Maria belonging to the succession of Mary Y. Williams, .under his control and ma.uagement, was stolen and taken away from his premises, &c., and that he verily and truly believed that George F. Behrnes was the person who committed the act.” Upon this affidavit the plaintiff was arrested, on Sunday, at the defendant’s request; but objecting to appear on that day, the officer assumed the responsibility of permitting him to go at large until the following day. No witness appeared to support the accusation, and the prisoner was discharged.

On the trial in the court below, the will of Mary Y. Williams, which contained the bequest to the plaintiff’s wife, as well as the probate proceedings .already referred to, were offered and admitted in evidence, to show the want of probable cause for the prosecution, and that the object of the defendant was ■to recover possession of the slave in question, with the view .of defeating the .title of the plaintiff’s wife. They were objected to, on the ground of irrelevancy. We think the judge did not err in permitting them to go to the jury. They were admissible for the purposes for which they were offered, and, in ■our opinion, tend strongly to show that the defendant was influenced by other motives than a belief that the plaintiff had been guilty of an infraction of the criminal laws. It devolved on the plaintiff to show malice; a fact which is .usually inferred from the want of probable excuse for the prosecution. The testimony offered tended to show that the prosecution was groundless, and that the defendant must have known that the plaintiff was innocent of any criminal offence, which is the most conclusive evidence of malice. Starlde on Evidence, pp. 911, 913, 915.

For obvious reasons of public policy actions like the present are cautiously entertained, and meet with no favor when the proof is not clear of the absence of probable cause for the prosecution. After an attentive examination of the evidence, we find no circumstances of excuse for the defendant’s conduct which entitle him to relief at our hands. We think that the verdict of the jury ought not to be disturbed.

It is objected that the sum for which the verdict is given is expressed in figures. If this be a defect, it is one which could have been corrected at the trial be low, at the request of either party. The objection comes too late when presented in this court. C. P. 528. 9 Rob. 60, Judgment affirmed,.  