This is a suit for a malicious prosecution. The defendant sued out a State's warrant against the plaintiff and others, charging them with shooting and cutting her horses, in the night-time, which was tried before a magistrate and dismissed. On the trial the defendant introduced testimony tending to show that she had probable cause for suing out the State's warrant. The court charged the jury that if the facts deposed to by the witnesses were true, there was probable cause, and further charged that if they did not believe the witnesses, then, to entitle the plaintiff to recover in this action, he must show express malice on the part of the defendant. The defendant's counsel asked the court to charge the jury what was meant by express malice, and the court said it meant ill-will, grudge, and to revenge herself. The only evidence on the part of the plaintiff as to malice was the existence of an action of trespass, instituted by the defendant and her son against the plaintiff and his father-in-law.

The jury returned a verdict for the defendant, and from the judgment thereon the plaintiff appealed.

PEARSON, J.

His Honor was of opinion that the plaintiff (261) must show express malice on the part of the defendant. Being requested to explain what was meant by express malice, he replied, "ill-will, grudge, to revenge herself." To this the plaintiff excepts.

If his Honor had said particular, instead of express, malice, his meaning would have been more clearly conveyed.

General malice is wickedness, a disposition to do wrong, a "black and diabolical heart, regardless of social duty and fatally bent on mischief." This is malice against mankind, and was the definition insisted on by the plaintiff's counsel in the argument before us.

Particular malice is ill-will, grudge, a desire to be revenged on a particular person, which is the definition given by his Honor.

The case, then, as we infer, was intended to present this question. In an action for malicious prosecution is it sufficient for the plaintiff to show that the defendant, in instituting the prosecution, was influenced by general malice, or must he show that the defendant had particular malice against him? His Honor thought the plaintiff must show particular malice on the part of the defendant, towards him. We concur in this opinion. 1 Stephens Nisi Prius, 2295.

This particular malice may be proven by positive testimony of threats or expressions of ill-will, used by the defendant in reference to the plaintiff, or it may be inferred from the want of probable cause and other circumstances, such as that set out in the conclusion of the case — the pendency of a lawsuit between the parties, which is apt to engender angry feelings.

We do not understand from the manner in which the case is made up, and it was not contended in the argument, that (262) his Honor meant to lay down the position, or was so understood by the use of the term "express malice," that the particular malice necessary to support the action must be proven by positive testimony of ill-will, and that it could not be inferred by the jury from a want of probable cause or other circumstances. When there is a total want of probable cause, the jury will infer malice, almost of necessity, as a prosecution, wholly groundless, cannot be accounted for in any other way.

PER CURIAM. Judgment affirmed.

Cited: S. v. Long, 117 N.C. 798; McGowan v. McGowan, 122 N.C. 149; Ellis v. Hampton, 123 N.C. 195; Savage v. Davis, 131 N.C. 162; Kelly v. Traction Co., 132 N.C. 273; S. v. Thornton, 136 N.C. 612.