Heyne v. . Blair

Per Curiam. The counsel for the defendant is entirely right in his position that the onus was upon the plaintiff to prove both the want of probable cause for the prosecution instituted against him, and malice on the part of the defend *22 ant. If he failed to prove either of these facts, the action necessarily failed. (Besson v. Southard, 6 Seld., 236; Foshay v. Ferguson, 2 Denio, 617.) Proof of malice will not excuse or supply the want of proof of want of probable cause, neither can the want of probable cause be inferred from proof of malice, although malice may be inferred from the want of probable cause. (Sutton v. Johnstone, 1 T. R., 493, 544, 545; Wheeler v. Nesbitt, 24 How. [U. S.], 544.) The fact that there was evidence tending to show actual malice on. the part of the defendant did not call for the submission of that or of any question to the jury if there was a total failure to prove the want of probable cause. Notwithstanding the actual innocence of the plaintiff of the offence charged, and the fact that the prosecution may have been instituted from malicious or other unworthy motives, and that the plaintiff sustained injury in his person and reputation, he was remediless if the defendant had just reason to believe, upon facts and circumstances within his knowledge, that he had committed the crime charged upon him. Probable cause, as defined in the books, is such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice upon the facts within his knowledge, to believe that the person accused is guilty. (Bacon v. Towne, 4 Cush., 217; Carl v. Ayers, 53 N. Y., 14; McGurn v. Brackett, 33 Me., 331.) The question of probable cause, when there is no conflict in the evidence, no disputed facts, nor any doubt upon the evidence, or the inferences to be drawn from it, is one of law for the court.and not of fact for the jury. It is said in Besson v. Southard (supra), that if the facts which are adduced as proof of want of probable cause are controverted, if conflicting testimony is to be weighed, or if the credibility of witnesses is to be passed upon, the question of probable cause should go to the jury with proper instructions as to the law. In such cases it is a mixed question of law and fact. The rule laid down in Masten v. Deyo (2 Wend., 424), is expressly approved by Jewett, J., in that case. In Masten v. Deyo, Marcy, J., *23 after a review of the authorities, says: “ Where the circumstances relied on as evidence of probable cause are admitted by the pleadings, it belongs to the court to pronounce upon them; and where these circumstances are clearly established by uncontroverted testimony, or by the concession of the parties, and they fully establish a probable cause, the court may refuse to submit the cause to the jury and order the plaintiff to be nonsuited.” This rule adhered to will prevent a confounding of the duties of courts and of juries in actions of this character. The same principle was recognized in Carl v. Ayers (supra). It is pre-eminently a question for the judgment of twelve men to determine what, upon a doubtful state of facts, or upon facts from which different men would draw different conclusions — that is, upon facts capable of different inferences — would be the belief and action of men of ordinary caution and prudence. Such is the rule in all questions of the like character, and there is no reason why this class of action should form an exception to the rule. It is not the province of this court to pass upon the weight of evidence in the ease before ns, or determine whether submitted to the jury with proper instructions they should have found the want of probable cause. We think there was a fair question for the jury, and they must pass upon it uninfluenced by any intimation from us. It is enough to say that the evidence did not conclusively establish a probable cause, and the evidence tended to show the want of such cause. It should be borne in mind that no act or declaration of the plaintiff was suspicious or relied upon as giving color to the suspicion of wrong on his part. Neither was any act or declaration of others of which he had cognizance relied upon as justifying the prosecution. He was confessedly innocent not only of all wrong, but of every appearance of wrong, and in this respect the case differs from most of those found in the reports. The only circumstances relied upon were a supposed discrepancy in appearance between the indorsement, alleged to have been forged, and other signatures of the same party, and the opinion or impression of the teller of *24 the bank at which the indorser transacted business, as testified to by him, that it did not look exactly like Ackerman’s signature; that if he wrote it, he wrote it with a different pen from what he had been in the habit of writing with, and that he might have written it with a bad pen; and the statement of Ackerman, made to the same witness and communicated to the defendant, casually made and without any knowledge of the purpose of inquiry, that he had only indorsed one $300 note for the plaintiff, when, in fact, the defendant held two. such notes. Ackerman had, to the knowledge of the defendant, indorsed many notes for the plaintiff. The defendant states the declarations of the teller in respect to the signature more strongly in his favor, and so far as there was any discrepancy in the testimony, it was for the jury to determine which spoke the truth, as it was also for them to ' determine the effect which all the information and knowledge in the defendant’s possession would have had upon the mind of a man of ordinary prudence and caution, acting conscientiously, that is, the belief which the defendant might have honestly entertained from these and all the other circumstances of the ease. The evidence was not of that decisive and conclusive character that justified the court in taking the .case from the jury. The judgment must be reversed and a new trial granted.