Bernar v. Dunlap , 1880 Pa. LEXIS 242 ( 1880 )

The judgment of the Supreme Court was entered,

Per Curiam.

It is well settled that to support an action for malicious prosecution both -want of probable cause for the prosecution, and malice in the prosecutor must be shown. Want of probable cause does not establish legal malice to be declared by the court; but it is evidence of malice proper to submit to the jury.

In an action against the prosecutor, if the plaintiff proves he was discharged by the examining magistrate, the burden of proof that there was probable cause, as a general rule, is cast on tho defendant. If, however, the plaintiff’s own testimony shows the existence of probable cause, it lifts that burden from the defendant. Such was the case here. The fact is unquestioned that the property of the defendant was stolen. The plaintiff proved by the magistrate, before whom the complaint was made, that the defendant was at his office with Mr. Curtis, that “ Curtis said he had seen Dunlap’s gauntlets in possession of"Mr. Bernar; my recollection is that Curtis said they were Dunlap’s gauntlets; I then recommended the complaint to be made.” It is unnecessary now to decide whether the advice of the magistrate shall have the same protective power as the advice of counsel learned in the law. The other fact proved is sufficient-protection. The express and distinct statement of Curtis, made to both prosecutor and magistrate, gave probable cause. Nothing is shown proving that the statement was not honestly made by Curtis, and in entire good faith believed by the defendant. So believing, the defendant made the complaint. This evidence was uncontrad'icted, and fully justified the learned judge in ordering a judgment of nonsuit.

Judgment affirmed.