Wilmarth v. Mountford

WASHINGTON, Circuit Justice (charging jury). This is an action for a malicious prosecution, and it is incumbent on the plaintiff to prove, not only that the prosecution was malicious, but that it was instituted without probable' cause. Whether there was in this case probable cause or not, is a question for the court to decide; dependent, nevertheless, upon the opinion of the jury, whether the facts stated by the court as constituting probable cause have been proved or not. If there was probable cause for the prosecution, then the jury may presume malice, though no express evidence of it be given. In the case of Munns v. Dupont [Case No. 9,926], in this court, it was stated to the jury, that by probable cause is meant a reasonable ground of suspicion, founded on circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty of the imputed crime. To the definition given in this case, the court, adheres. The prosecution on account of which this action is brought was larceny, which is the wrongful taking and carrying away of the goods of another, with a felonious intent to appropriate them to the use of the taker, without the owner’s consent. It will be proper in the first place to inquire, how far this definition is applicable to Scholfield? He commenced his operations with falsehood and artifice, with a view, as his subsequent conduct proves, to obtain the wrongful possession of the goods for his own use, or for the use of some other person, without accounting to the owner for the agreed value of them. It is not true, as was argued by the plaintiff’s counsel, that the property in these goods was at any time changed, which by the contract was only to take place on the payment of the money. It was, by the express terms of it, a cash sale. The cash was not paid or tendered; and, consequently, the right of property was never divested out of the assignees. Neither was there a change of possession, with the assent, or by the act of the assignees, or of Wentz their agent. When at the request of Scholfield he laid down the goods, with the expectation, well warranted by Scholfield’s actions, of receiving the money for them, they remained, constructively, in his possession; and to every legal intent they were as much in his possession as if he had placed them in his pocket. If a person go into a shop to buy a particular article, which is handed to him by the shopkeeper to examine, and he makes off with it, the delivery of the article would not constitute a change of property or possession; and the carrying away of the goods would, in such a case, be evidence of a felonious intent, formed at the time, or before, to convert the goods to the use of the taker, and would amount to larceny. It is true, that in this case, the possession of the goods was lost by Wentz; but it was taken, not transferred by him, which constitutes one of the ingredients in larceny. In short, here was a wrongful taking and carrying away of the goods of another, with a felonious or fraudulent intent to convert them to the use of the taker, or of some other person, against the consent of the owner; and if, upon the trial of Schol-field, the opinion of the jury, as to the intent, should be as I have stated it, it would not have been an easy matter to extricate him from the charge of larceny. How then stood the case as to the plaintiff? He and Schol-field boarded at the samé house. That they were acquainted, and had, previous to the pretended purchase for White, made some arrangement which they were subsequently to carry into effect, is obvious, not only from the circumstance of Scholfield’s referring Wentz to the gentleman in the next room, as the person who would settle with him, but from the acknowledgement of the plaintiff himself to the alderman, that the scheme was resorted to for the purpose of getting payment of the debt due to him by Bead. The plaintiff did not offer to pay for the goods; because the offer of a note of an insolvent debtor was no compliance with the contract made' by Scholfield; and besides, it was refused. It was contended for the plaintiff, that the transaction resolves itself into a claim of property; a creditor obtaining possession of the goods of his debtor, to compel the payment of a just debt. This argument is not supported by the facts of the case. Before this transaction took place, the goods in question had been assigned by the plaintiff’s debtor to Mountford and Crowley, for the benefit of his creditors. The contract was made with the assignees. The bill which was presented to the plaintiff so stated it, and Wentz informed the plaintiff that the goods did not belong to Bead, who had failed, but to his assignees. Suppose then that a creditor might legally seize his debtor’s property, or get possession of it by artifice, and so pay himself, which cannot be admitted; still the argument would lose, all its weight in this case, inasmuch as the property in these goods was completely changed, and that fact known to the plaintiff. Again, it is insisted that the assignment was void by the act of assembly of this state, on account of its not having been recorded within thirty days. To this argument there is this conclusive answer given by the defendant’s counsel. The assignment was valid at the time when this transaction took place, the thirty days not having run out; and on the 21st of June, 1819, the assignees were the owners of the goods, and might have sold and transferred a legal right to them, which the subsequent failure to record the deed could not set aside. Besides, the possession had passed from Bead to the assignees, and was vested in them at the time when this transaction took place. If then the evidence is sufficient to connect the plaintiff with Schol-field, in the original concoction of a scheme founded in deceit, and contrived for the purpose of feloniously or fraudulently obtaining the possession of the goods of the assignees, [73] and appropriating them to his own use, without paying the sum at which they were agreed to be sold; it would be difficult to distinguish the plaintiff’s case from that of ScholfielcTs. But it is not necessary that the crime of larceny should be fixed upon the plaintiff. If, by his folly or his fraud, he exposed himself to a well grounded suspicion that he was guilty of that offence; the prosecution had, at least, probable cause for its basis, and this is sufficient to defeat the present action. Verdict for defendant.