I. As the defendant had charged the boy Tobe and the present plaintiff with stealing the blanket, it was competent for the plaintiff to show the defendant’s malice towards Tobe, as tending to show the defendant’s *783 malice towards tbe plaintiff also: Caddy v. Barlow, 1 M. & Ry., 275. There is no force, therefore, in the first cause assigned for error by the defendant.

II. The plaintiff asked his Honor to charge, and his Honor did charge, that if the jury believed the evidence, then the defendant did knowingly prosecute the plaintiff for stealing; and to this the defendant excepted.'

The warrant charged the plaintiff with stealing, in plain, unmistakable language, and the warrant was read over to the defendant, and he swore to it; and he is stated to be a man of more than ordinary intelligence. There is no pre-tence that he did not understand it, or that it was falsely read, but he puts his objection upon the ground, that in his statement, outside of the oath which he made to the Magistrate when he applied for his warrant, and afterwards, he said that he did not charge the plaintiff with stealing the blanket, but that he charged Tobe with stealing, and the plaintiff with harboring Tobe.- The answer is, that he swore to the warrant, well knowing that it charged the plaintiff with stealing ; and he cannot excuse himself for this false and mali-ciousoath and act, by any accompanying or subsequent words not under oath, that he did not mean to do what he knew he was doing; Protestatio contra factum, non valet. If the charge in the warrant did not have his approval, he ought to have refused to swear to it, or to sue it out; but he did sue it out, and tried to convict the plaintiff before the Magistrate under the’warrant, all the time, admitting that he was not guilty of the stealing but only of the harboring ! And this very thing it was, of prosecuting the plaintiff under the forms and solemnities of legal proceedings for a crime of which'the defendant not only knew he was innocent, but by his own admission furnished the indubitable evidence that he knew it, — that furnished the plaintiff with the grounds for this action. It is as if he had said, “ I know *784 the plaintiff: is innocent, but I will nevertheless degrade him by prosecuting him, in connection with a negro, for an infamous offence.”

III. The defendant asked his Honor to charge, that if the jury believed that the defendant did not mean by his affidavit to charge the plaintiff with stealing, then they must find for him. His Honor declined to charge in those terms, but did charge, that, if the j nry believed that the defendant did not know that he was charging the plaintiff with stealing, but supposed that he was only charging him with harboring, then they should find for the defendant.

This was certainly as favorable for the defendant as he could claim ; for there was no evidence that he did not know that the warrant charged the plaintiff with stealing. He did know it, and swore to it, and he is answerable for the plain meaning of his words and acts, and cannot be heard to say, “Art thou in health, my brother?” while he stabs his reputation.

IV. The defendant asked his Honor to charge, that if the defendant stated the facts (outside of his oath,) to the magistrate, .and if this outside statement did not constitute a criminal offence, and the Justice issued the warrant on such statement, the defendant would not be guilty of a malicious prosecution. His Honor declined to give the charge, upon the ground that there was no evidence to support it. There might be some force in the defendant’s point if the Magistrate had issued the warrant upon the outside statement, and had not brought it to the attention of the defendant, or taken his oath ; but there was no evidence to support this view. .On the contrary, all the evidence shows that the warrant was not issued upon the outside statement, as distinguished from the oath, but upon the oath, and the warrant was read to the defendant, and sworn to. There is no error.

Per Curiam. Judgment affirmed.