Lawyer v. Loomis ( 1874 )

Mullin, P. J.

If the defendant had done nothing toward procuring the arrest of the plaintiff, after the delivery of the warrants to the constable, on the 9th of September, it would have been the duty of the judge at the circuit to have nonsuited the plaintiff, as there was sufficient evidence of probable cause to justify him in instituting the prosecution for the larceny of the buggy. He did not stop at that stage of the proceeding, but more than a month afterward and after he had learned not only that the plaintiff did not take the buggy but another person did take it, and after he had got it back into his possession he insisted upon the arrest of the plaintiff, and it was made accordingly.

The evidence of the conversation between defendant and the justice and constable, at the time the order to arrest was given, was objected to as incompetent, because it was after the warrant was issued and delivered to the constable to be served. If an action for malicious prosecution lay for procuring a warrant for the arrest of a person without service of it, the objection would be available, but \ until the arrest of the party the proceeding is not begun, and the ¡ requirement that the prosecution must be terminated by the discharge of the party proceeded against before an action for malicious prosecution can be commenced, proves quite conclusively that merely suing out the warrant, without service, is not enough to subject the prosecutor to liability.

On the 12th of October there was a total want of probable cause for the arrest, and the learned judge was right in receiving the evidence. He did not receive it, however, as bearing on the question of probable cause, but upon the question of malice, and consequently upon the question of damages. This error, if it was one, did not prejudice the defendant, but was calculated to injure the plaintiff. The learned judge was right in refusing to nonsuit the plaintiff because he had failed to prove a want of probable cause. ,

The defendant was the principal if not the only witness who testified to the matters relied on to establish probable cause, and as evidence was given tending to show him unworthy of credit, it was for the jury to say whether any statement made by him on that subject was to be believed. If none was believed, the defense in that respect wholly failed. It was the duty, therefore, of the court to submit the whole case to the jury.

Whether there was malice was a question for the jury. And if I am right in supposing that the acts and declarations of the defendant on the 12th October were properly received in evidence, malice was established, and if there was no probable cause, malice is infer-able from the want of it.

The defendant’s counsel proposed to ask the defendant whether in procuring the warrant he acted without malice. The question was objected to by plaintiff’s counsel, and rejected, and defendant’s counsel excepted. It was for the jury to say whether the defendant acted maliciously, and to allow the question would be substituting the witness in place of the jury to determine one of the most important questions in the cause. When the intent with which an act is done forms an essential element of it, the actor may, as a general rule, be asked whether he did the act with such intent. Doing an act maliciously is equivalent to doing it with a malicious intent. If this is a case in which the defendant was entitled to deny the intent, the evidence offered should have been received.

Proof of malice, however intense it may be, will not dispense with proof of the absence of probable cause. But malice may be inferred from the absence of probable cause. When, therefore, the jury find the absence of probable cause, malice or a malicious intent is established ; proof of want of malice is, therefore, immaterial in a case where want of probable cause is found. There cannot be a total absence of malice in a case in which want of probable cause is established. It is not necessary to consider whether the evidence of the absence of malice would be admissible when the plaintiff gave evidence tending to prove express malice. Malice can only be rebutted by facts which show, or tend to show, probable cause.

In Fiedler v. Darrien, 50 N. Y. 437, the. defendant resisted a recovery in ejectment, on the ground that the deed under which plaintiff claimed was a mortgage, and that it was void for usury On the trial the plaintiff’s counsel offered to ask the plaintiff whether he intended to take usury. I infer from the case that the evidence was excluded on the trial, and the court of appeals held that it was excluded properly. Taking more than seven per cent constituted usury, and the law inferred the intent from the terms of the contract, and an intent not to violate the statute could not be otherwise proved. I cannot discover any distinction in principle between that case and this. Malice is inferred from want of probable cause, the want of probable cause must be established by the facts surrounding the transaction. A case of want of probable cause, without malice, would befelo de se. The thing is impossible.

The judgment must be affirmed.

Judgment affirmed.