Frost v. Holland , 1883 Me. LEXIS 96 ( 1883 )

Symonds, J.

This is an action upon the case brought to recover damages for an alleged malicious prosecution of the plaintiff by the defendant, before a commissioner of the circuit court of the United States, upon the charge of passing a counterfeit trade dollar. The first exception is to the admission of a certified copy of' the original record, " unsupported by the testimony of the commissioner.” This copy, including the criminal complaint against the plaintiff, the warrant, return of arrest, recognizance, proceedings, and his final discharge for want of probable cause to believe him guilty, is certified under the band and seal of the commissioner as a true copy of the original record. This official certificate of the commissioner that in point of fact such a record exists is without contradiction in the case, and the same fact is assumed in the manner in which the exception itself is stated. The exception is to the admission of the copy without the oath of the commissioner; the claim being that the original record proved by his oath was required and the copy was not admissible.

In Sawyer v. Garcelon, 63 Maine, 25, it is said, "in most, if not all, of the courts in this country, copies of the record properly authenticated are received as sufficient in all cases; a practice said to be established either by immemorial usage or early statutes to that effect.”

"The rule may be considered as settled, that every document of a public nature, which there would be an inconvenience in removing, and which the party has a right to inspect, may be proved by a duty authenticated copy.” 1 Greenl. Ev. § 484.

Substantially the same rule is stated in Whart. Ev. § 108, and reference is made to " the growing tendency, even at common law, to permit the records to be represented by exemplifications, or by other authenticated copies.”

In reference to the judgments of inferior courts, it is said in 1 Greenl. Ev. § 513, that " where the course is to record them, which will be presumed until the contrary is shown, the record, or a copy property authenticated, is the only competent evidence.” State v. Bartlett, 47 Maine, 402, gives the same rule.

The method of procedure by commissioners of the circuit court in arresting, imprisoning and bailing offenders against the laws of the United States, is required to be in conformity with "the usual mode of process against offenders” in the state where they are found. U. S. Rev. Stat. § 1014. In this state, committing-magistrates are required to keep a record of their proceedings. R. S., c. 83 § 24; c. 133 § § 13, 17; Thayer v. Commonwealth, 12 Met. 9. We think it was the public duty of the commissioner to keep a record of such proceedings as issuing warrants upon criminal complaints, imprisoning persons arrested or admitting them to bail, or discharging them upon hearing. The seal of office of such a commissioner is recognized by the statute. IT. S. Rev. Stat. § 1778. "In proving a record by a copy under seal, the courts recognize, without proof, the seal of state, and the seals of the superior courts of justice, and of all courts established by public statutes ; and by parity of reason it would seem that no extraneous proof ought to be required of the seal of any department of state, or public office established by law, and required or known to have a seal.” 1 Greenl. Ev. § 503 ; Whart. Ev. § § 319, 321, 695.

The papers which were received in evidence, ceitified by the commissioner with his official seal and signature as true copies of the original record, in a proceeding within his jurisdiction, were propei’ly authenticated, and admissible without oath.

In an action for malicious prosecution, the want of probable cause will not be inferred from the mere failure of the prosecution, nor from a mere acquittal upon trial, but the weight of authority seems to be in accordance with the ruling, that proof that the plaintiff was discharged by the examining magistrate, for want of probable cause to believe him guilty, makes a prima facie case for the plaintiff in this respect, so that the defendant is called upon to offer proof to the contrary. 2 Greenl. Ev. §. 455 ; 1 Am. Lead. Cases, 268 ; Cooley on Torts, 184.

The motion for a new trial on the ground that the verdict is manifestly against the evidence, or so excessive as to indicate an improper motive or misapprehension on the part of the jury cannot prevail. The plaintiff was prosecuted for a serious offence, for which heavy penalties are provided, when in fact no crime had been committed. The jury were not in fault in finding that the damages, necessarily resulting from this public accusation, were more than nominal or trifling, and it was for them to decide whether, under the rules of law relating to this class of actions-, the evidence afforded the defendant any legal excuse for prosecuting the plaintiff for uttering a counterfeit coin, when the fact was that the coin was genuine.

Motion and exceptions overruled.

Appleton, C. J., Barrows, Danforth, Virgin and Peters, JJ., concurred.