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These principles, as there explained, are as follows: "The essential ground of this action is, that a legal prosecution was carried on without a probable cause. We say this is emphatically the essential ground; because every other allegation may be implied from this; but this must be substantively and expressly proved, and cannot be implied.

"From the want of probable cause, malice may be, and most commonly is, implied. [This inference, however, may always be rebutted by evidence showing that the prosecution acted in good faith and without malice, though not with what the law would term probable cause. Baron v. Mason, 31 Vermont, 190.] The knowledge of the defendant is also implied.

*From the most express malice, the want of probable cause cannot be implied.

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"A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action.

"After a verdict the presumption is, that such parts of the declaration, without proof of which the plaintiff ought not to have had a verdict, were proved to the satisfaction of the jury. In this case, to support the verdict, there was nothing necessary to be proved, but that there was no probable cause, from whence the jury might imply malice, and might imply that the defendant knew there was no probable cause. "The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to show it probable, are true and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law."

The principle, that malice alone, even the most express, if there were either real or probable ground of proceeding, will not be sufficient to sustain the action, but that both malice and want of probable cause must be established, has been constantly affirmed in the latter cases.(1)

(1) Per Buller, J., in Morgan v. Hughes, 2 Term, 225, 231; Willans v. Taylor, 6 Bingham, 183, 186; per Holroyd, J., in Nicholson v. Coghill, 4 Barnewall & Cresswell, 21, 23; Musgrove v. Newell, 1 Meeson & Welsby, 582, 587; Munns v. Dupont et al.; Wilmarth v. Mountford et al., 4 Washington, 80, 82; Murray v. Long, 1 Wendell, 140; Foshay. Ferguson, 2 Denio, 617; Wills v. Noyes, 12 Pickering, 324, 326; Wilder v. Holden, 24 Id. 8, 11; Stone v. Crocker, Id. 81, 83; Ulmer v. Leland, 1 Greenleaf, 135, 137; Plummer v. Noble, 6 Id. 285, 288; Barron v. Mason, 30 Vermont, 199; Lyon v. Fox, 2 Browne, 67, 69; Winebiddle v. Porterfield, 9 Barr, 137; Kirkpatrick v. Kirkpatrick, 39 Penna. 288; Turner v. Walker, 3 Gill & Johnson, 378; Adams v. Lisher, 3 Blackford, 241, 244; Scott v. Mortsinger, 2 Id. 454, 455; Wade v. Walden, 23 Ill. 426; Israel v. Brook, Id. 576; Yocum v. Polly, 1 B. Monroe, 358; Wood v. Wier & Sayre, 5 Id. 544; Maddox v. McGinnis, 7 Id. 372 ; Chelf v. Penn, 2 Metcalfe (Kentucky), 405; Chandler v. McPherson et al., 11 Alabama, 916, 919; Williams v. Vanmeter, 8 Missouri, 339, 342; Leidig v. Rawson, 1 Scammon, 273; Johnston v. Martin, 3 Murphy, 248; Johnson v. Chambers, 10 Ire

The doctrine, which is founded on public policy proceeds upon this fact, to wit: "that those who feel some malignity or spleen against the accused are often the only persons who will commence any prosecution.” However, though want of probable cause is necessary to support the action, yet those very words need not be alleged in the declaration, the words, falsely and maliciously, necessarily including a conscious want of probable cause.(1) Some American cases, however, conflict with those authorities. In Gibson v. Waterhouse, 4 Greenleaf, 226, the omission of an allegation of want of probable cause was decided to be bad after verdict; but here the word "maliciously" also was omitted. In Ellis v. Thilman, 3 Call, 3, "without any just cause," was decided to be insufficient on error, though "of his mere malice," was alleged; and in Young v. Gregorie, Id. 446, "without any legal or justifiable cause," was adjudged insufficient; and in both of these cases it was said that "want of probable cause," being the gist of the action, must be alleged in the declaration. In Davis v. Clough, 8 New Hampshire, 17, the omission to state that there was no probable cause beyond a certain amount, where there had been an arrest for more, was held bad on special demurrer. It is said also to have been decided in Maddox v. McGinnis, 7 *Monroe, 371, that it is not enough to say in the *213] declaration "falsely and maliciously," without some of the words indicating want of probable cause.

The definition of Probable Cause, in a case of criminal prosecution, given by Judge Washington in the principal case, viz.—“ a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged;" is one of the best ever given, and has been frequently applied.(2) "There must be a reasonable cause," said Tindal, C. J.,(3) "such as would operate on the mind of a discreet man; there must also be a probable cause-such as would operate on the mind of a reasonable man; at all events, such as would operate on the mind of the party making the charge: otherwise there is no probable cause for him." In another quarter, it is said that "anything which will create in the mind of a reasonable man the belief that a felony existed, and that the party charged was in any way con

dell, 287, 292; Murray v. McLane, 5 Hall's Law J. 514. It is necessary that malice should be expressly alleged in the declaration : Saxon v. Castle, 6 Adolphus & Ellis, 652; see, also, Page v. Wiple, 3 East, 314, and Vanduzor v. Linderman, 10 Johnson, 106.

(1) Jones v. Gwynn, 10 Modern, 214; see, also, Sterling v. Adams, 3 Day, 411, 432; the omission at least is cured by verdict; Weinberger v. Shelly, 6 Watts & Sergeant, 336, 342. See, also, Griffith v. Ogle, 1 Binney, 172, 174.

(2) See Wilmarth v. Mountford et al., 4 Washington, 82; Foshay v. Ferguson, 2 Denio, 617, 619; Hall v. Suydam, 6 Barbour's S. Ct. 84, 86; Cabiness v. Martin, 3 Devereux, 454; Raulston v. Jackson, 1 Sneed, 129.

(3) Broad v. Ham, 5 Bingham's N. C. 722, 725.

cerned in it, is probable cause."(1) "Probable cause, in general," it was said, in another court, "may be 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) ["A state of facts" said Shaw, C. J., in a third court,(3) "as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person is guilty."] The question of probable cause does not turn upon the actual innocence or guilt of the accused, but upon the prosecutor's belief of it at the time, upon reasonable grounds;(4) "however innocent the plaintiff may have been, it is enough for the defendant to show that he had reasonable grounds for believing him guilty at the time the charge was made:"(5) and the question of probable cause rests only on those facts and circumstances which were known to the prosecutor at the time the prosecution was begun, and not upon any which afterwards came to his knowledge.(6) In one of the cases, justifiable probable cause is said to be "a deceptive appearance of guilt, arising from facts and circumstances misapprehended or misunderstood so far as to produce belief," and to depend not on facts, but on the belief of them.(7) It is not required, says another case, that every complainant, of his own knowledge, should swear to the truth of every fact alleged in his complaint. A complainant may, and in many cases must act upon statements made by others; and if their statements are positive and unequivocal, and they are reliable, he must be regarded as having probable cause.(8) Mere general reputation, alone, will not constitute probable cause.(9) The prosecutor must himself believe and the belief must be upon reasonable grounds. Belief occasioned by the prosecutor's own negligence or want of proper investigation or reflection, would not be a justification;(10) and, therefore, probable cause is justly defined in Travis v. Smith, 1 Barr, 234, 237, as "reasonable ground for belief." On this subject, different courts have fallen into error on the right hand and on the left. Some of them have held that probable cause *depends on the fact, whether there was or was not reasonable ground for prosecuting, and not upon the prosecutor's knowledge

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(1) Braveboy v. Cockfield, 2 McMullan, 270, 274; see, also, Sims v. McLendon, 3 Strobhart, 557, 560.

(2) Ulmer v. Leland, 1 Greenleaf, 135; Thompson v. Mussey, 3 Id. 305, 311. (3) Bacon v. Towne, 4 Cushing, 238-9.

(4) Burlingame . Burlingame, 8 Cowen, 141; Scanlan v. Cowley, 2 Hilton, 489; French v. Smith et al., 4 Vermont, 363; Jacks v. Stimpson, 13 Illinois, 701.

(5) Foshay v. Ferguson, 2 Denio, 617, 619.

(6) Swaim v. Stafford, 3 Iredell's Law, 289; S. C. 4 Id. 392.

(7) Seibert v. Price, 5 Watts & Sergeant, 438.

(8) Fitzgibbon v. Brown, 43 Maine, 174.

(9) Dictum in Barron v. Mason, 31 Vermont, 195.

(10) Merriam v. Mitchell, 13 Maine, 439.

or belief of the fact ;(1) yet it is certain, that if probable cause really existed, but the prosecutor did not believe the party was guilty, or knew that he was not guilty, there was no probable cause as to him;(2) and the true question therefore is, "Whether he had probable cause upon the existing facts known to him."(3) Others would seem to have fallen into the antagonist error of holding that it depended merely on belief, and not on the causes or ground of belief; as in Chandler v. McPherson et al., 11 Alabama, 916. [However, this case is explained and reduced. into something much nearer law in later cases in the same State, if not entirely overruled.(4) Certainly mere belief is not enough: for] this would reduce probable cause to a mere question of the fact of belief, and break up the rule that it is a question of law for the court. There is no doubt that actual belief or suspicion, and reasonable ground for it, must both enter into a justification of the defendant; the latter is that part of the question which belongs exclusively to the court, and the former is the consideration of bonâ fides in acting upon it, or of the connection between the probable cause and the party's conduct, which must be decided by the jury. The principle seems to be accurately stated in Raulston v. Jackson, 1 Sneed, 132, and also in Faris v. Starke, 3 B. Monroe, 4, 6: "The law," says the last case, "protects the prosecutor if he have reasonable or probable cause for the prosecution, that is, if he have such ground as would induce a man of ordinary prudence and discretion, to believe in the guilt, and to expect the conviction of the person suspected, and if he acts in good faith on such belief and expectation. The question is not whether the plaintiff was actually guilty, but whether the defendant had reasonable ground, from the facts known to him, and the communications made to him, to believe, and did actually believe, that the plaintiff was guilty." "Probable cause," says the court in Hall v. Hawkins, 5 Humphreys, 357, 359, "is the existence of such facts and circumstances as would excite in a reasonable mind the belief that the person charged was guilty of the crime for which he was prosecuted; that is, acting upon the facts within knowledge of the prosecutor, if a reasonable man would believe the party guilty of the crime charged, there would exist probable cause for the prosecution. It is not sufficient that the party really believed that a crime had been committed; when, in truth, the facts within his knowledge constituted no crime." "Good faith merely," said the court, in Hall v. Suydam, 6 Barbour's S. Ct. 84, 89, "is not sufficient to protect the defendant from liability. There must be a reasonable ground of suspicion, &c. Good faith merely (1) Mowry v. Miller, 3 Leigh, 561; Hickman v. Griffin, 6 Missouri, 37, 42; Adams v. Lisher, 3 Blackford, 241, 245.

(2) Bell v. Pearcy, 5 Iredell's Law, 83; Delegal v. Highley, 3 Bingham's N. C. 950, 959; Haddrick v. Heslop, 12 Q. B. 267, 274.

(3) Wills v. Noyes, 12 Pickering, 324, 326.

(4) Ewing v. Sanford, 19 Alabama, 605; S. C. 21 Id. 164; Long v. Rodgers, 19 Id. 335.

may be based on mere conjecture, on unfounded suspicion-supported by no circumstances."

"The mere belief of the prosecutor," said the court in Winebiddle v. Porterfield, 9 Barr, 137 (and the same point was decided in Lawrence v. Lanning, 4 (Porter's) Indiana, 196, and in Jacks v. Stimpson, 13 Illinois, 701), "is no evidence of probable cause." "How," said the court in the first case, "are you *to test the sincerity of a pro[*215 fessed belief, or know that it is not the secret work of a heart to cover malice? There must be some circumstances which would authorize a reasonable man to entertain a belief. It need not be legal evidence that would be sufficient to convict; and hence it is not to be put to the jury as a question of guilt or innocence, but as a question whether the prosecutor had reasonable and probable cause to believe the defendant guilty. And if it can be fairly inferred from the circumstances of the case, that the prosecutor was actuated by an honest and fair intent to bring a suspected culprit to justice, on grounds sufficient to authorize the belief of a cautious man, it will remove all grounds for a just inference of malice, and thus protect the defendant; but his mere professed belief will not."

The presumption of law being, that every public prosecution is founded on probable cause, the burden of showing want of it is, in the first instance, on the plaintiff; and there must be some evidence of the absence of probable cause, before the defendant can be called on to justify his conduct; but as this is a negative, slight evidence will generally be suffi cient.(1) If a party lays all the facts of the case fairly before counsel, of competency and integrity, before beginning proceedings, and acts bona fide upon the opinion given by that counsel, however erroneous that opinion may be, he is not liable to this action; "he is not the insurer of the lawyer," but if he misrepresents the case, or if he does not act bona fide under the advice he has received, and does not himself believe that there is a cause of prosecution or action, he is not protected. The bona fides of his conduct is a question of fact for the jury.(2) A

(1) Incledon v. Berry, 1 Campbell, 202, n.; Willans v. Taylor, 6 Bingham, 183, 187; S. C. on Error, 2 Barnewall & Adolphus, 857; Cotton v. James, 1 Id. 128, 133; McCormick v. Sisson, 7 Cowen, 715; Gorton v. De Angelis, 6 Wendell, 418, 420; Stone v. Crocker, 24 Pickering, 81, 84.

(2) Snow v. Allen, 1 Starkie, 409; Ravenga v. Mackintosh, 2 Barnewall & Cresswell, 693; Hewlett v. Cruchley, 5 Taunton, 277; Hall v. Suydam, 6 Barbour's S. Ct. 84, 88; Blunt v. Little, 3 Mason, 102, 105; Wills v. Noyes, 12 Pickering, 324; Wilder v. Holden, 24 Id. 8, 11; Stone v. Swift, 4 Id. 389; Stevens v. Fassett, 27 Maine, 267, 283; Bartlet v. Brown, 6 R. I. 39; Turner v. Walker, 3 Gill & Johnson, 378; Hull v. Hawkins, 5 Humphreys, 357, 359; Sommer v. Wilt, 4 Sergeant & Rawle, 19; Hall ». Smith, 7 Phila. Legal Intelligencer, 7; Walter v. Sample, 25 Penna. State, 275; Wood v. Weir & Sayre, 5 B. Monroe, 544, 551; Ross v. Innes, 26 Illinois, 259; Chandler v. McPherson, 11 Alabama, 916, 919; Hill v. Ward, 13 Id. 311, 313; Leaird v. Davis, 17 Id. 27; Carter v. Spring, 2 lowa, 406; Griffin v. Chubb, 7 Texas, 603; qualifying or overruling Collard v. Gay, 1 Id. 494.

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