
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1809.
    Colson v. Brown.
    The informer who shall prefer an accusation against any one as a vagrant, through malevolence, or resentment, without reasonable cause, cannot be liable to pay the penalty, of j£5, imposed by the vagrant act, for such causeless accusation, unless he shall be lawfully convicted upon a prosecution by indictment, for such causeless and malevolent accusation.
    Motion for a new trial, and for a nonsuit, from Marion district. Action of debt, tried before Bay, J., founded on a clause of the act for the suppression of vagrants, of 1787, P. L. 431, which enacts, “ that if any informer shall be convicted before the judges of the County, or Circuit, or Court of Sessions, of having preferred* bis complaint through malevolence, or spite, without any just grounds of accusation, he shall be adjudged to pay a fine of five pounds to the party injured, besides being liable to an action for damages.” The plaintiff bad been tried upon an accusation preferred under the act by the defendant, and acquitted. -
    At the trial, the defendant admitted the accusation and acquittal, 1 which the plaintiff deemed sufficient to maintain' the action. The defendant claimed a nonsuit, because no evidence had been adduced to prove malevolence and spite. The presiding judge was of opinion'that the proof was sufficient. The defendant offered to prove probable cause for preferring the accusation, on the ground of the general character of the plaintiff, which was refused.
    The motion was heard, and decided instanter.
    
    Witherspoon, for the defendant.
   The COURT.

The plaintiff, to be entitled to recover in this action, must shew that the defendant has been convicted, in a court, according to the act of 1787, of having made his complaint through malice, and without just cause. The conviction cannot be established in a civil action, but by indictment. The five pounds penalty is to be adjudged to the prosecutor, upon conviction. It must be a criminal proceeding. The words, “ conviction,” and “fine,” cannot be applied to a civil action.

Verdict set aside, and nonsuit ordered.  