case johnson and his wife against brown in a action for malicious indictment  if the indictment be recite accord to the substance follow a variance of valor  instead of valentine be immaterial but if the recital have be in haec word the  variance will be fatal SC holt action on the case for malicious indict and  prosecute the wife for felony whereof she be acquit the declaration recite the  indictment continent means following and in the recital of the good suppose to  be steal it be valor of so much whereas the indictment be valentine of so much  it be object that this be a variance from the indictment but it be overrule  for that be the same in substance and so means following but if they bad  undertake to set forth the indictment in haec word it will have be a fatal  exception king v beach Cowp dougl notorious facts dougl king v may dougl a  notam by holt chief justice to do the business full the plaintiff ought to  have prove a copy of the bill exhibitedSee Morrison v Kelley black Rep that a  copy of the indictment must be produce when the indictment be for felony but  when it be for a misdemeanour only a copy be not necessary see jordan v Lewis  stram and black Com b and that it be find upon the oath or procurement of the  defendant but their name upon the back of the bill be sufficient evidence of  their be swear to the bill see Girlington v pitfield vent c though the write  upon the back be no part of the record but it may be prove that the defendant  be a witness without have the bill but it be I say more clear to have the bill  and the first part of the defendant defence in this case must be to prove a  felony commit for without that it be impossible be can have a probable cause  of prosecution to support this species of action it must appear that there be  malice in the defendant and a want of probable cause for the prosecution bull  n p but the absence of probable cause shall be take as strong evidence of  malice Reynolds v Kennedy I will Johnston v Sutton term Rep and what shall be  deem probable cause be matter of fact for the opinion of the jury bull n p but  although express malice be prove yet unless there also appear want of probable  cause the defendant can be convict bull n and therefore it be a good defence  to show fair and reasonable ground for suspect the gild of the plaintiff  knight v Germain cro Elizabeth pain v Rochester cro Elizabeth although in  point of fact no felony be actual commit Samuel v pain dougl Ledwick v  catchpole call case d and here because nobody be by at the time of the suppose  felony commit but the defendant wife who can not in this case be a witness to  prove the felony commit holt chief justice allow her oath which she make at  the trial of the indictment to be give in evidence to prove a felony commit  for otherwise one that shall modern be rob c will be under a intolerable  mischief for if he prosecute for such robbery c and the party shall at any  rate be acquit the prosecutor will be liable to a action for a malicious  prosecution without a possibility of make a good defence though the cause of  prosecution be ever so pregnant darnel for the plaintiff say that if oath have  be make fresh after the fact commit that oath may be admit as evidence of it  otherwise not but that here it appear a warrant be take out immediate but  nothing do thereupon until the defendant bad a subsequent fall out with the  plaintiff holt chief justice say that the fact of Pigot case cro car a be this  a soninlaw indict his stepmother for poison her husband his father that she be  acquit bring a action for malicious prosecution against he and recover damage  against modern er p he that he to requite her kindness bring a appeal of  murder and that she be thereupon try and convict at the king bench bar and  carry down and burn in Berkshire where the fact be commit and he remember  another very late where a fellow bring a action for say of he he be a  highwayman and it appear upon evidence that he be so he be take in court  commit to Newgate convict at the next session and hang so that people ought to  advice well before they bring such action and darnel remember the like fate  which befall a client of his