-1. The undisputed evidence shows that defendant, when he went before the magistrate to make complaint, did not charge plaintiff with larceny. He merely stated to that officer, that plaintiff had gone on his .place and taken away a lot of his fodder, without his consent, claiming that he had bought it from John Phillips, a tenant on the place, who had gone away without paying his rent, and he, defendant, wanted to get damages for it. The affidavit he made did not charge larceny, but, if anything, a trespass, — its language being, that “within twelve months before making this affidavit, in said county, N. M. Chambliss did enter his premises and carry away a lot of fodder of the value of five dbllars,” etc. It is true the justice issued a warrant of arrest of plaintiff for larceny on this complaint of defendant; but the justice testified, that he made out the warrant after defendant left. There is no evidence that defendant ever saw the warrant, or that he ever made an' affidavit for the issuance of a warrant for larceny. The magistrate as appears, committed a mistake and transcended his authority in issuing such a warrant on the information given him and the affidavit made by defendant-. There can, therefore, be no recovery against defendant on account of such a mistake made by the magistrate in issuing a warrant against plaintiff for larceny. This disposes of counts one and two of the complaint. — Hahn v. Schmidt, 64 Cal. 284; Newman v. Davis, 58 Iowa, 447; Lark v. Baude, 4 Mo. App. 186; Frankfurter v. Bryan, 12 Ill. App. 549.
*892. There can be no recovery on the remaining fourth count charging slander. There is no proof to sustain the allegation that defendant made such a charge, except that while being examined as a. witness on the trial before the magistrate, he may have used some such expression as that plaintiff stole his fodder. The witness, Ward, testified that defendant testified before the magistrate that plaintiff had.gone on his premises and stole his fodder in the following manner, — that plainliff claimed to have bought the fodder from witness’ tenant, who left his place without paying his rent, and that the fodder belonged to witness, and after plaintiff had taken away a part of the fodder, he was warned by witness not to take away any more, but, nevertheless, plaintiff went on witness’ place and took the balance of his fodder without his consent. The plaintiff was examined and testified that defendant when examined before the magistrate, testified that he, plaintiff, had gone on his, defendant’s premises, and taken a lot of his fodder without his consent, and there were a lot of people present at the time. He did not testify that defendant had testified that plaintiff had stolen the property. Such testimony is privileged, and will not support an action of slander. In his work on Slandér and Libel, p. 339, § 223, Mr. Townshend very correctly, as we conceive, lays down the doctrine to be, that “The due administration of justice requires that a witness should speak, according to his belief, the truth, the whole truth and nothing else but the truth, without regard to the consequences; and he should be encouraged to do this by the consciousness that, except for any wilfully false statement, Avhich is perjury, no matter that his testimony may in fact be untrue, or that loss to another ensues by reason of his testimony, no action of slander can be maintained against .him. It is not simply a matter between individuals, it concerns the administration of justice. The witness speaks in the hearing and under the control of the court, is compelled to speak, with no right to decide what is material or vliat is immaterial; and he should not be subject to the possibility of an action for his words. This is the view in the courts of England and some of the States, and in *90our opinion is the correct view.” To the same effect is O'dgers on Libel and Slander, * p. 191; Newell on Def., Slander and Libel, p. 449, § 43. See also 13 Am. & Eng. Ency. Law, 408 (Witnesses), where the decisions of many of the States are collated.
This count contained no averment that the charge against plaintiff, attributed to defendant, was wilfully false, — nothing upon which perjury could be predicated.
There was no error in the general charge given for defendant.
Affirmed.