mortgagors agents of the mortgagees. Their possession and their sales were in effect those of the mortgagees. It was as if the latter had taken possession and placed a third person in charge as agent to sell and account to them. They could not have escaped from crediting on their indebtedness the proceeds of sales made by such an agent because he had fraudulently or dishonestly misapplied or employed the money." A like conclusion was reached in Ford v. William, 24 N. Y. 359; and Miller v. Lockwood, 32 Id. 293. The question again came up before the same court in Brackett v. Harvey, 91 Id. 215, decided as late as 1883; and the doctrine declared in these cases was reaffirmed without dissent by any member of the court. It was said by Finch, J.: "These cases went upon the ground that such sale and application of proceeds is the normal and proper purpose of a chattel mortgage, and within the precise boundaries of its lawful operation and effect. It does no more than to substitute the mortgagor as the agent of the mortgagee to do exactly what the latter had the right to do, and what it was his privilege and his duty to accomplish. It devotes, as it should, the mortgage property to the payment of the mortgage debt."

The controlling principle of the cases is, that the mortgagee is not prohibited by any rule of law or of public policy from employing the mortgagor as his agent to sell the goods on his (the mortgagee's) exclusive account, without authority to use or appropriate the proceeds of sale to any other purpose than paying the mortgage debt. A like principle has been recognized by the English courts, where trustees, under general assignments made for the benefit of creditors, have been permitted to stipulate for the employment of the debtor as their agent to dispose of the goods: Janes v. Whitbread, 5 Eng. L. & Eq. 431.

The New York doctrine seems to us to be sound in principle, and it has been followed in Virginia, New Hampshire, Illinois, Connecticut, Wisconsin, Ohio, and other states, and in the circuit courts of the United States: Marks v. Hill, 15 Gratt. 400; Wilson v. Sullivan, 58 N. H. 260; Goodheart v. Johnson, 88 Ill. 58; Kendall v. Carpet Co., 13 Conn. 383; Fisk v. Harshaw, 45 Wis. 665; Kleine v. Katzenberger, 20 Ohio St. 110; 5 Am. Rep. 630; Hawkins v. Bank, 1 Dill. 462; Overman v. Quick, 8 Biss. 134; Pierce on Fraudulent Mortgages of Merchandise, secs. 139, 43-49.

The mortgage is not void on its face, and there is nothing

in the testimony which proves that it was intended otherwise than as a bona fide and fair appropriation of the debtor's property to secure a debt honestly due, without reservation of benefit to the grantors: Gazzam v. Poyntz, 4 Ala. 374; 37 Am. Dec. 745. The deed of assignment made January 25, 1888, by which McNealy and Cureton, the mortgagors, reaffirmed their assent to the mortgage of November 18, 1887, need not be noticed, as it exerts no influence on the question in hand. The decree of the chancellor correctly pronounces the mortgage free from all fraudulent intent, and legally valid, and is affirmed.

CHATTEL MORTGAGES. — A chattel mortgage of a stock of goods is not void, as a matter of law, as to the creditors of the mortgagor, but the question of good faith ought to be submitted to the jury, where the mortgage contains a provision that the mortgagor shall remain in possession of the property and sell the same in the course of trade, etc.: Whitson v. Griffis, 39 Kan. 211; 7 Am. St. Rep. 516, and note 550.

LUNSFORD V. DIETRICH.

186 ALABAMA, 250.J

PLEADING AND PRACTICE-PROOF OF RECORD.-The original papers and docket in criminal proceedings before a justice of the peace are not self-proving, and to be admissible in an action for malicious prosecu tion, they must be identified and authenticated either by sworn copy or by the certificate of the magistrate. MALICIOUS PROSECUTION-PROBABLE CAUSE. — In support of the issue of probable cause vel non, in an action for malicious prosecution for larceny, the plaintiff may prove that the property alleged to have been stolen was his, and the prosecutor's knowledge of the fact.

MALICIOUS PROSECUTION PROBABLE CAUSE. - An architect who has been prosecuted for the larceny of the drawings of a building by the builder, and acquitted, and who sues the builder for malicious prosecution, may prove, upon the issue of probable cause vel non, — a universal custom, that such drawings remain the property of the architect, and that the builder is only entitled to the use of them during the time of construction, to be returned when the building is completed; and also that such builder had erected buildings by plans and specifications drawn by archi. tects, in order to trace knowledge of such custom to him. CRIMINAL LAW - LARCENY.-Where, under a custom, a builder is entitled to the use and possession of the drawings of a building while it is in course of construction, he has a special property therein, which may be the subject of larceny by the architect who is the general owner, but who fraudulently and clandestinely takes them from the possession of the builder, with felonious intent to convert them to his own use, or deprive the builder of their possession.

CRIMINAL LAW — TRESPASS — LARCENY. - One who, having the general ownership of personal property, wrongfully takes it from another who has the possession and a special property therein is a trespasser; but if he takes it openly, in the presence of the party having possession, or of other persons known to him, he is not guilty of larceny, but of mere civil tort.

MALICIOUS PROSECUTION - MALICE-PROBABLE CAUSE. To maintain malicious prosecution, malice and want of probable cause must occur; and though malice may be inferred from want of probable cause, still such inference may be rebutted by proof that the prosecutor, though not able to show probable cause, instituted the prosecution under an honest belief of plaintiff's guilt; provided such belief was founded on facts and circumstances sufficient to produce in the mind of a prudent and reasonable man such belief of plaintiff's guilt as to repel the idea that the prosecutor was actuated by malice. MALICIOUS PROSECUTION - DAMAGES. In malicious prosecution for larceny, the court may instruct the jury that plaintiff, if entitled to recover at all, can recover such actual damage as naturally and proximately followed the arrest, as physical suffering and wounded pride; but that a witness could not testify to the particular amount of such damage, — that to be determined by the particular circumstances of the case.

Ward and Head, for the appellant.

CLOPTON, J. Appellant instituted a criminal prosecution against appellee by causing a warrant for his arrest to be issued by a justice of the peace, on the charge of larceny of the drawings for a building. The criminal proceedings having been terminated, and appellee discharged, he brings this action for malicious prosecution. For the purpose of proving that the prosecution was instituted by the defendant, and its termination, the original affidavit made by him, the warrant of arrest, and the docket of the justice were introduced in evidence, against the objection of the defendant. The ground of objection is, that the original papers and docket are not self-proving instruments, and should be authenticated by the certificate of the magistrate. It may be conceded that the original papers and docket are not self-proving, and must be sustained by proof of identity. The docket was identified, and that such proof in respect to the affidavit and warrant was made is presumable from the bill of exceptions, especially as the want of proof of identity is not specified as a ground of objection. Section 3319 of the Code of 1886, which makes a statement of any judgment rendered by a justice of the peace, made and certified by him, or by his successor in possession of his docket, presumptive evidence of the fact, has been construed as having reference only to judgments in civil cases. In the

absence of a statute, a certified transcript of the papers and judgment of a court not a court of record is not legal evidence. The proceedings in such courts must be proved by the production of the original papers and docket, accompanied by proper proof of identity and verity, or by sworn copies. Also, in civil causes, section 3319 is merely cumulative, and does not abrogate the former mode of proof: Burns v. Campbell, 71 Ala. 271; Blackman v. Dowling, 57 Id. 78.

In support of the issue of probable cause vel non, it was competent for the plaintiff to prove that the property of the drawings was in him; for it is an essential element of larceny that the goods taken belong to some person other than the taker. For this purpose, it was permissible for the plaintiff to prove a universal custom that the drawings for a structure remain the property of the architect, and that the builder is only entitled to the use of them during the time of the construction, to be returned when the building is completed; and also that the defendant had erected buildings by plans and specifications drawn by architects, in order to trace knowledge of the custom to him. But though the plaintiff may have been the general owner of the drawings, the defendant might also have had a special property in them, and the plaintiff be guilty of larceny if he fraudulently and clandestinely took them from the possession of the defendant with a felonious intent to convert them to his own use, or to deprive defendant of his ownership. Under the custom, as proved by plaintiff, the defendant was entitled to the use and possession of the drawings during the time the building was in course of construction, and this vested in him a special property.

Larceny ordinarily includes a trespass. Every direct and forcible invasion of another's right which causes injury to his possession,- any interference with the goods of another, by taking them from the possession of the owner without his consent, and without excuse or justification,—is a trespass. An interference by the general owner with goods in the possession of one who has a special property and right of possession is an injury to such possession; and having the general property is not an excuse or justification. A bailor may commit a trespass by taking goods from the possession of his bailee. A landlord may wrongfully invade the possession of his tenant. If, after an unconditional delivery of the drawings by the architect to the defendant, under the contract of employment, the plaintiff, before the completion of the build

ing, and while they were in the possession of the defendant, took and carried them away without his consent, he thereby committed a trespass, and the court should have so instructed the jury at the request of the defendant.

The plaintiff, however, may have been a trespasser, and yet not have committed the offense of larceny. To constitute the offense, the wrongful act must be secret or fraudulent, and done with felonious intent to convert the property to the taker's own use, or to deprive the owner of his property. If done openly, in the presence of the owner, or of other persons known to him, the taking and carrying away of the drawings is a mere civil tort: Johnson v. State, 73 Ala. 523.

To maintain an action for a malicious prosecution, two essential elements must occur, malice, and a want of probable cause. The inference of malice may be drawn from a want of probable cause; but such inference is subject to be rebutted by proof that the prosecutor, though not able to show probable cause, instituted the prosecution under an honest belief that the plaintiff was guilty of the offense charged; provided such belief is founded on facts and circumstances which would produce in the mind of a reasonable and prudent man such serious suspicion of the plaintiff's guilt as to repel the idea that the prosecutor was actuated by malice. Such is the settled rule: Long v. Rodgers, 19 Ala. 326; Ewing v. Sanford, 21 Id. 157; McLeod v. McLeod, 73 Id. 42.

We discover no error in the charge of the court relating to the measure of damages.

Reversed and remanded.

MALICIOUS PROSECUTION

PROBABLE CAUSE: See Boeger v. Langenberg,

97 Mo. 390; 10 Am. St. Rep. 322, and note.

RECORDS. The custodian of judicial records, in giving copies, need set them out only as the originals appear, and so certify; and the failure to certify that an affidavit contained therein was made by the party who on the face of the copy appears to have made it is unimportant: Ward v. Sutor, 70 Tex. 343; 8 Am. St. Rep. 606, and note 608.