Sears v. Hathaway , 1 Cal. Dist. Ct. 305 ( 1857 )

Hager, J.

To sustain am action of ibis kM,.ít is necessary, that plomtiff should prove, 1st. That he has been prosecuted by the defenderte, and that the prosecution is at an end, 2d. That the prosecution was instituted malclomsly, and without probable cause. 3d. That the plaintiff hao »teln®d damage.

R appears by the evidence that plaintiff was twice arrested, on .& ©rimimal ehrage, upon am affidavit made by one of the defendants, taken before a magistrate, and after @n examination into the matter by him, was discharged. This is presumptive evidence of want of probable ©asses, ooSciemt ft throw upon the defendants, who were instrumental ha procromg the arrest, the mim of proving the contrary.

Probable cause for such a criminal prosecution, is such conduct on ft© part of ft© accused, as may induce the inference that the prosecution was undertaken from public motives, or such a reasonable ground. @f BBgpidom, supported by circumstances sufficient to warrant a essuti®« man in believing, that ft® party is guilty of the offense charged ogssmst him,

The question, probable cause, is composed of few -and fact. R to your province to determine whether the circumstances alleged are trae ®r not, and for the court feo determine whether or mofe they amount fe® probable cause.

The questions for the consideration of the jury will he to determine If defendants had, good reason, m cautious mem, fio believe that a partnership existed between plaintiff and Crowell. If defendants did so believe, and had sufficient reason to suppose either party guilty. It aright make ©ufe a defense. The ease turns on feh© question of partnership. On the first occasion Sears was arrested ©m am affidavit, charging Mm alone with being a cheat, The question of partnersHp, would, therefore, have mo connection with that count of feh© complaint—It waa a question of probable cause, and feh© mfeersaoma of defiéndante im procuring plaintiff’s arrest. .There are few© descriptions of male©, radie® in fact and malic® im law, The former, Im eoramiooi acceptation, meanc 111 will against a person; the latter measte a sreosagM eefe done IeMetionally. This Is a question for you to pass upon.

If the prosecution in feh© police court was undertekea for the pap-pose of compelling illegally the plaintiff to d© a collateral thing, suck as to give up Ms property, it is nofe necessary for the plaintiff, in rock a ease, to prove that the prosecution was instituted without probable cause. The criminal and civil laws sure distinct branches of jurisprudence, and a party cannot be permitted fee employ the former, which le calculated for the punishment of offenders, in order to attain the ende for wMeh the latter Is instituted. Criminal prosecutions are, or should foe, for the benefit of society at large, and any attempt fe® defieefe them from that object, either to gratify privafeo malee, or fio subserve private ends, should not be encouraged.

Damages should be awarded on the principle that plaintiff Is entitled to indemnity for the peril occasioned to Mm in. regard fi® Mo liberty, feh® injury to Ms reputation, Ms feelings, and Ms person, and for fehe expenses to which, he has necessarily been subjected; and although e@ evidence has been given of particular damages, jefe you are not therefore obliged to find nominal damages merely, bufe snsy rack® them proportionate to the injury. The jury found for plaintiff $4,000 damage.