M’Cormick against Sisson.
ALBANY,
Oct. 1827.
where the t war-' rant against theft) who^as ^^ustice ebut discharged betSs^had PX lhat suchanaequit^rr^t tion for a macution. Pr°SB
t¡o^u a”f" probable cause fen-edVrom '"a settlement and. consequent dismissal of j?® PthoiH¡ accompanied with evidence of malic 1; but want of probable cause must be shown by the plaintiff. It is the gist of the acton.
Whether there be probable cause is a mixed question of law and fact.
Case, for a malicious prosecution ; tried at the Yeates circuit, March, 1824, before Throop, 0. Judge.
At the trial, it appeared that the defendant obtained a warrant from a justice, against the plaintiff, on a charge of theft, and when he was brought before the justice, he (the justice) examined some witnesses; but before he had finished the examination, the parties declared they had settled all matters of difficulty between them ; and. on that account, he proceeded no further. The defendant moved for a non-suit, on the ground that the plaintiff had not shown that he was acquitted and discharged by the justice, but the motion was overruled. Evidence was given by the plaintiff, tending to show that Sisson prosecuted before the justice with the view to coerce a settlement, and surrender of the property alleged to be stolen; and the judge decided that from the settlement, together with other evidence . , , . . given on the part of the plaintiff to show malice m the defendant, both want of probable cause and malice might be implied. He submitted to the jury, upon the evidence, *715-1whether there was probable canse. Verdict for the plaintiff, with 75 dollars damages.
W. M. Oliver,
moved for a new trial. He said, to support the action, the defendant must be fully acquitted and discharged by the judgment of the justice. (Selw. N. P. 1064; 1 Salk. 20; 2 id. 456; 6 Mod. 2.61; Esp. N. P. 285; 2 Chit. Pl. 251, precedents and notes; 1 Doug. 215; 2 T. R. 231.) In Secor v. Babcock, (2 John. 203,) the plaintiff was discharged by the justice for want of probable 'x"cause. It was on this ground that the action was maintained.
It does not lie with the defendant to show probable cause, be the proof of malice what it may.' Want of probable cause cannot be inferred from malice, or from the settlement. It lies with the plaintiff to show it affirmatively, substantially and expressly. It is the essential ground of the action. (1 T. R. 544; 2 Phil. Ev. 112; 2 T. R. 231; Selw. N. P. 1063; 10 John. 106; 1 Campb. Rep. 199, 202, 203, and the notes.) The last book reviews the doctrine, and settles this point in favor of the defendant. Indeed all the cases are that way.
The judge should not have submitted the question of probable cause to the jury. It was a mixed question of law and fact. (1 T. R. 545; Bul. N. P. 14; Esp. N. P. 277; 2 Browne’s Penn. Rep. app. 42, 67, 64.)
J. Maynard, contra,
insisted that the abandonment of the prosecution before the justice should be taken as, at least, prima facie evidence of want of probable cause. (Martin v. Lincoln, Bul. N. P. 13.)
It is not necessary that the plaintiff should have been acquitted. It was enough that the prosecution was determined, or had ceased in any other way, when this action was commenced.
It is certainly competent to infer a want of probable cause from the conduct and language of the prosecutor. Beside, it is contrary to a well settled rule of evidence to require proof from the plaintiff that there was no probable cause. It is demanding evidence of. a negative, which it is always difficult to obtain, and, in most cases, impossible.
*716The counsel cit .d Cro. Jac. 490; 1 Salk. 14; 1 Str. 1691; 2 John. Rep. 203; 4 T. R. 248; and he denied that the case of Smith v. M'Donald, (3 Esp. Rep. 7,) is law.
Curia, per Woodworth, J.
I think the objection taken, that there was no acquittal, is fatal. The justice did not decide, whether there were grounds for the complaint *or not. It is essential that the plaintiff prove he has been acquitted. The discharge must be in consequence of the acquittal. The action cannot be sustained unless the proceedings are at an end by reason of an acquittal. In this case the proceedings ended in consequence of a settlement. The justice heard a part of the testimony only, and formed no opinion on the subject. (2 T. R. 231; Doug. 215; 2 John. 203.)
The judge also decided that the defendant must show probable cause. I apprehend the law is otherwise. The want of probable cause is the gist of the action; and if so, the plaintiff must show it, to maintain his action. (2 T. R. 231; 10 John. 106; 1 Campb. 199.)
*717The judge also erred in submitting to the jury the question whether there was probable cause. Whether the circumstances alleged are true, is a matter of fact; if true, whether they amount to probable cause is a question of law. (1 T. R. 545 ; Bull. N. P. 14.)
The verdict must he set aside, and a new trial granted, with costs to abide the event.
Mew trial granted.