6 R.I. 37 | R.I. | 1859
The action for malicious prosecution supposes not only the plaintiff's innocence of the charge upon which he has been prosecuted, but want of probable cause of his guilt. The grounds of it are, "on the plaintiff's side, innocence, and on the defendant's, malice;" per Parker, C.J., Jones v. Gwynn, 10 Mod. 217; and if there be real guilt, or apparent guilt believed *39 by the prosecutor to be real, the most express malice in prosecuting will not support the action. Johnstone v. Sutton, (in Error,) 1 T.R. 544.
In the case before us, it seems, that the defendant procured the arrest of the plaintiff, upon the charge, that he feloniously stole, took, and carried away cultivated fruit, to wit, ripened cherries, the property of, and growing upon, the lands of the defendant; which, inasmuch as theft cannot be committed of such a subject, is not a defective charge of theft, but a harsh mode of charging our statute offence of taking growing fruit without license of the owner. If the defendant had spoken such words of the plaintiff, proof of them would not have supported an action by the latter for a slanderous accusation of theft, but would be deemed to amount to a charge of trespass only; and, whether written or spoken, the legal construction of them must be the same.
Had this substantial charge been false, as well as malicious, it would, on account of the vexation and expense caused by it, have supported an action for malicious prosecution. We are satisfied, however, from the proof, that the plaintiff did, on more than one occasion, pick cherries from the trees of the defendant, as he passed under them along the street, without his leave. The complaint, therefore, though containing words of harsh surplusage, was substantially true, and, upon this ground, the defendant is entitled to judgment.
But if this were otherwise, there is another ground, upon which, as it seems to us, the defence to this action is full. We are satisfied from the proof, that the defendant fully and fairly submitted his cause of complaint against the plaintiff to a counsellor of this court, residing in Woonsocket, for his professional advice and aid; that under his direction the complaint was made; and that, the complaint being filled in with his own hand, its objectionable form was caused by his misrecollection of the statute concerning the taking of growing fruit, or, at any rate, without fault or neglect on the part of the defendant. There is no evidence which leads us to suspect, that the defendant, a laboring man, doubted, or had cause to doubt, the soundness of the legal advice given to him, or suspected even *40 when he signed and swore to the complaint prepared for him by a professional man, that there was a misnomer of the offence therein charged. To the defendant, then, it was a case of apparent guilt of theft, believed by him to be real; and this, according to the resolution of the judges, reported to the House of Lords by Lords Mansfield and Loughborough in the case ofJohnstone v. Sutton, before cited, will not support an action for malicious prosecution, even though the most express malice be proved in the prosecutor. In other words, though there be malice, there is probable cause; and the former must concur with the want of the latter, to the maintenance of the action.
Although there has been some question how far the advice of counsel can shield a defendant in an action of this sort, yet the weight of authority, and, as it seems to us, the more reasonable opinion is, that if the defendant is not in fault, but has been wrongly advised as to his rights, upon a state of facts fully and fairly presented by him to a professional man whose candor and skill he had no reason to doubt, the advice will be a sufficient protection for him. Hewlett v. Cruchley, 5 Taunt. 277; Snow
v. Allen, 1 Starkie, 409; Ravenga v. Mackintosh, 2 B. C. 693; Blunt v. Little, 3 Mason, R. 102; Stone v. Swift, 4 Pick. 393; Tompson v. Mussey, 3 Greenl. 310; Stevens v.Fassett, 27 Maine, (14 Shepl.) 266; Hall v. Suydam, 6 Barb. Sup. Ct. R. 83; Walter v. Sample, 25 Penn. State R. (1 Casey) 275; Kendrick v. Cypert, 10 Humph. 291; Chandler v.Mc Pherson,
For these reasons, our judgment must be for the defendant.
