Cecil v. Clarke , 1861 Md. LEXIS 60 ( 1861 )

Le Grand, C. J.,

delivered the opinion of this court.

This is an action for malicious prosecution, instituted by the appellant against the appellees. The narr. alleges that the defendants, on the 7th day of August 1857, falsely, maliciously, and without probable cause, caused a warrant against the plaintiff and others to be issued by Samuel Nichols, a justice of the peace in Howard county, under and by virtue of which warrant the plaintiff was arrested and imprisoned in the jail of Howard county, until he was released and discharged by a justice of the peace, and that the said complaint and prosecution are wholly ended and determined before the commencement of this action.

The defendants pleaded severally, and each traversing the averments of the narr.

Among the undisputed facts of the case are the following: On the 6(h of August 1857, in open day, the plaintiff, accompanied by others, went to the house of Caleb Stabler, in Montgomery county, and arrested five negroes; a negro woman named Rose, and her four children, claiming them as the slaves of Mercy Owens, on whose estate he had, a short time previously, obtained letters of administration; that after having obtained possession of the negroes, he and his friends drove to the house of John R. Moore, one of the defendants, in Howard county, where it was said there lived two other children of Rose, Adriel and Mary, whom he also claimed and designed to seize. On his arrival there, plaintiff was told by Moore that these two negroes, having learned that the plaintiff was in search of them, had gone over to Upton Dorsey’s, his friends in the meantime driving to Clarksville, with the negroes taken in Montgomery county. Their arrival and presence in Clarksville created considerable excitement there. On the plaintiff’s arrival at Clarksville, after an unsuccessful search for Adriel and Mary, at Upton Dorsey’s, the defendant, Thaddeus Clarke, demanded to see his authority, which was exhibited in the shape of the letters of administration on Mercy Owens’ estate. William Welling and others said they were no authority to plaintiff to seize negroes, and Welling further remarked, that plaintiff could not be arrested without, some one making an oath. John R. Moore replied, that he would make the oath. The plaintiff was then permitted to depart. The next day Moore went before justice Nichols and made an oath, and a warrant was issued. On the 11th of August 1857, the plaintiff was arrested and committed to jail, where he remained until the 13th of .the month, when he was released on bail by justice Allen. The records of Howard county show no recognizance in plaintiff’s case, and no entry of any presentment or indictment against him. It was shown, during the progress of the case, that three of the defendants went before the grand jury of Howard county, and there testified against the plaintiff. The judgment below was in favor of all the defendants but Moore, against whom there was a judgment, from which he appealed.

The plaintiff, to sustain the issue on his part, gave in evidence letters of administration granted to him by the orphans court of Prince George’s county, on the estate of Mercy Owens, dated the 13tb of July 1857, and, in addition to the facts already stated, others, which will be noticed hereafter.

The point decided by the circuit court, and embraced in the plaintiff’s first exception, has been abandoned in this court.

The defendants, to support the issue on their part, proved by a witness that he lives in Prince George’s county; that lie knew Mercy Owens, Jr., and that she died in 1809; that he knew the negro woman Rose, who was, at the time of the trial, about 48 years old; that her two children, Adriel and Mary, belonged to J. Owens, and came into his possession in 1831, and remained with him until they went free, in 1852 or 1853; that Mercy Owens, Jr., never owned any slaves except two men; that Rose left the neighborhood of witness before she went free; she went to James Clark’s in 1833, and was his slave for not less than five years. Samuel Owens, Jr., brought her into the neighborhood of witness in 1817; he acquired her through his wife; she was sold in 1818, to his father, Samuel Owens, Sr., who had possession of Rose as his slave until his death, and after his death, his widow, Mrs. Mercy Owens, until her death, in 1831, held Rose as her slave, and after the death of Mrs. Owens, she went into the possession of Tabitha Macbee, as her slave, and so remained for about 18 months, when she went into the possession of James Clarke. That while Rose was in the possession of Mrs. Mercy Owens, she had two children, Adriel and Mary, and immediately after the death of Mrs. Mercy Owens, they went into possession of Samuel Owens, Jr., and never went at large until 1852 or 1853. After this testimony, the defendants offered in evidence the will of Samuel Owens, dated June 20th, 1820, and proved October 3rd, 1821, “to (he admissibility of which evidence the plaintiff’s counsel objected, unless an administration on said estate was shown, but the court overruled the objection, and permitted said will to be read to the jury, to which ruling the plaintiff excepted.” This constitutes the second exception. The fourth exception presents the same question as the second. The testimony excepted to in the fourth exception was (he will of Mrs. Mercy Owens, widow of Samuel Owens, Sr., and executrix under his will. By the will of Samuel Owens, Sr., the negro woman Rose was bequeathed to his wife, Mercy, and by the will of the latter, she bequeathed to her daughter, Mrs. Macbee, the woman for seven years, after which she was to-go free, and declared that her children, born during such servitude, should be set free when they reached twenty-one years of age.

We thinjc the authorities cited on behalf of the appellant,, are sufficient to show, that in this State at least, letters testamentary or of administration are necessary for the transmission of title to a legatee; and if the question to be determined in this case was the freedom of the negroes captured by the-plaintiff, we would have no difficulty in deciding that the-wills of Mr. and Mrs. Owens would be insufficient, of themselves, to establish it; in such a case letters would have to be shown. But the question here is, not slavery or freedom, but whether the defendants, in doing what is charged against them, acted falsely, maliciously, and vñthout probable cause ? If they did not, then they are not liable for damages. The defendants having given, without objection, evidence of the history of Rose, and of two of her children, we think the testimony excepted to in the second and fourth exceptions was properly admitted. The jury might very fairly infer that in the neighborhood of the residence of the negroes in question, it was generally believed that they had been manumitted by the wills of their former owners, and although administration on the estates of their owners was necessary, in law, to transmit title until such time as they would be entitled to their freedom, yet by no means does it follow from this that, a person acting in .good faith and interposing to prevent what he considers a great, wrong to the defenceless, will, be held, nevertheless, responsible in damages, if it should turn onl that the persons in whose behalf he interfered were slaves. The mere fact that negroes were the subject of dispute, does not alter the character of the action, or the character of the proof necessary to sustain it. Had the plaintiff been arrested for the larceny of a horse, the same principles would apply as do to this case. In such a case it might appear that his title was clear beyond all successful cavil, yet that, fact alone, in opposition to ail others which might exist., would not be sufficient to enable the plaintiff to recover. It might be shown that the defendant acted honestly and without malice, and if so, he would be entitled to the verdict. And, although the right of property is an important ingredient in all such cases, the true inquiry involved is, was the conduct of the defendant malicious, and without probable cause? In its very nature it concedes that the plaintiff had the right to take the property, but that there were circumstances connected with his doing so, and with the history of the property, which made his conduct, suspicious, and justified the inference that he was acting illegally.

The third and fifth exceptions have been abandoned.

We think the court properly allowed the declarations of Richard Owens to be given in evidence. He was one of the party who accompanied and assisted the plaintiff in the arrest of the negroes; and if he said anything whilst engaged in that business calculated to impress those who heard him with the belief that the negroes were free, certainly it constitutes a part of the evidence on which the defendants acted. It should not be forgotten that the inquiry here is not whether the negroes were slaves, or whether the plaintiff had not the right to arrest them, but whether, under the circumstances, the defendants acted without probable cause, and maliciously; entirely differerit questions. To our minds, there 'could not be stronger evidence than the declarations of one of the parties assisting in what was, at the time, believed an illegal act, whether within or without the hearing of the principal. It bears directly on the question of probable cause and want of malice. But, in point of fact, the testimony was only allowed against' himself, and as his rights were in no way involved in the case, it. had no effect whatever.

We do not think, however, that the court would have been-justified in allowing the evidence of the witness as stated in the seventh exception. But there was no exception taken to-it. The testimony shows that the witness did not, until some days after the arrest and commitment of the plaintiff, communicate to any of them what, had been said by’Owens. Now, although it is for the plaintiff to make out a want of probable cause, yet the existence of it cannot be shown by establishing a fact which is shown not to have been communicated to the defendants. 2 Greenlf. on Ev., sec. 454. We-make ihese remarks in regard to the proof, to guard against misapprehension.

We think the court properly rejected the documentary evidence contained in the 7th and 8th exceptions. That contained in the 8th, had no bearing on the case whatever, and that contained in the 7th, was of acts of the-plaintiff done after his visit to Howard county, and the issue of the warrant for his arrest, and of course could have-no bearing on what was done by others at a previous day.

The ninth and tenth exceptions of the plaintiff relate to. the ruling of the court on the prayers offered respectively by plaintiff and defendants..

Before proceeding to notice the law which we understand ©.s controlling cases of this character, we will state that we think the learned judge below was clearly-right in deciding that there was no sufficient evidence against such of the defendants as to whom he did so decide. Without recapitulating it in detail, it may be summed up thus:- — The plaintiff, accompanied by friends, arrives in a village which has been alarmed by the report of and flight of negroes to it for protection. He has in his charge and under his care certain negroes whom he has brought from an adjoining county, and is in pursuit of others well known in the village. He finds, •on his arrival, a number of persons standing around, gossiping, it being a place of great resort. His right to the negroes is denied by one of these persons, and he is asked for bis authority, which he exhibits. The testimony is, that he was permitted to depart, although he failed to convince the bystanders that he had the right to take with him the negroes. It was then said by one of the defendants, Welling, that he could not be arrested unless some one would make an oath, whereupon Moore volunteered to do so. It does not appear from any part of the evidence (hat the meeting of the defendants was by concert, or that its motive had anything whatever to do with the arrival of the plaintiff or the negroes; for aught that appears, it seems to have been purely accidental. None of these parties did any thing violent, except one, who, according to the testimony, did not know what he was doing, being under the influence of liquor. When the warrant for the arrest of the plaintiff was issued, the defendants refused to assist in its execution, and were only prevailed on to do so by being threatened by the constable with being presented to the grand jury, if they refused. Surely there is nothing in all this unusual or malicious. That such an arrival in a small village would create some agitation, was to have been expected; and we see nothing in the conduct of the defendants to whom we have alluded, which is deserving of censure. Their conduct was both natural and humane. There is no evidence that there was any conspiracy whatever among them; all that was said and done on the occasion, was clearly from the impulse of the moment, and from a commendable impulse, to see that helpless beings were not illegally and forcibly carried out of their county. They would have been less than men, had they not exhibited some emotion on the occasion. In our judgment, they did nothing but what they had a right to do — they made inquiries and expressed their opinions in regard to the rights of the negroes, and nothing more. Of course these remarks do not apply to the defendant, Moore; the judgment being against him, his case will be separately considered on his appeal.

(Decided Oct. 29th, 1861.)

In actions of this kind, it is incumbent on the plaintiff to show that the proceeding against him was instituted maliciously and without probable cause. If it were malicious, but if there was probable cause, the action cannot be maintained. Malice is for the jury; it may be inferred from the want of probable cause; but want of probable cause must be proved by the plaintiff. “Probable cause for a criminal prosecution, is understood to be such conduct on the part of the accused as may induce the court to infer that the prosecution was undertaken from public motives.” 2 Greenlf. on Ev.} sec. 454.

It is not necessary to consider the application of these principles on this appeal, because we concur with the court below, that the facts themselves were too inconclusive to justify any rational mind in finding malice on the part of the appellees, and without malice the action could not be maintained. There was nothing in the case from which it could be inferred, and it was the duty of the court to say so, which, in effect, the court did. This view of the case dispenses with all necessity of an inquiry into the ruling of the court cn the other prayers, for if there was no sufficient evidence to sustain the action, those prayers, so far as this case is concerned, were but mere abstractions.

Judgment affirmed,.