Burt v. Place
4 Wend. 591
N.Y. Sup. Ct.
1830
Check Treatment

By the Court,

Marcy, J.

In the examination of the plaintiff’s witnesses and their cross examination by the defendant, allusions had been made to, and something said about a trial and the matters involved therein which had previously taken place between these parties at a circuit court in Oneida county. When the record and postea in that suit were called for to ascertain what was the issue therein, the judge considered that so much had already been said by both parties as to that matter, that the production of them had been dispensed with, and that what was in issue might be shewn by parol. The defendant objected to this decision then, and now makes it a point on the argument. The objection, if well taken at the circuit, is now removed by the production of the papers. (3 Johns. C. 125. 2 Caines, 224. 2 Johns. R. 46.) The principal questions to be settled are, 1. Where the judgments against the plaintiff in the justice’s court conclusive evidence of probable canse ? 2. Was there a sufficient want of probable cause shewn by the plaintiff in this suit ? The facts proved by the plaintiff make out a very strong case of malicious and vexatious prosecution, and it would be a matter of regret if any inflexible rule of law stood in the way of a proper remedy for the party injured. It is a general principle, that the suit alleged to have been malicious must have been terminated in favor of the defendant therein, and this fact must appear on the face of the declaration. The suits complained of in this case as malicious, were instituted in a justice’s comí, and the plaintiff there was successful ; but the defendant *598brought appeals on them and prevailed in the common pleas. qp^g appeals were jfurther proceedings in the same suits, and the judgments ultimately rendered in favor of the defendant below in the appeal causes are determinations that satisfy the rule of law, which requires that the suits alleged to be malicious should be decided in favor of the plaintiff in the action for malicious .prosecution.

It is said, however, that the recovery by the plaintiff before the magistrate is conclusive evidence of probable cause. This position is fully warranted by the case of Whitney v. Peckham, (15 Mass. R. 243.) It is fairly to be inferred, I think from the report of that case, that it was not much considered. No arguments of counsel are given, and nothing is said by the court; all we learn is, that the nonsuit was confirmed, which was directed by the judge who tried the cause, he holding that the conviction before the magistrate, acting on a matter within his jurisdiction, was conclusive evidence of probable cause. The only case referred to in support of this decision is Reynolds v. Kennedy, (1 Wils. R. 232.) It is to be presumed that the supreme court of Massachusetts had no other views than those contained in that case, and that it was not intended by them to establish any principles different from those found therein, The case of Reynolds v. Kennedy was well considered; it was twice argued, and the opinion of the court given after mature advisement. It is to be considered as a highly" respectable authority for what it professes to establish. The entire view of the court in that case appears to me to be presented in the last sentence of the opinion delivered by Ch. J. Lee-, he says: “Upon the whole, we think the plaintiff himself has shewn by his declaration that the prosecution was not malicious, because the sub-commissioners gave judgment for the defendant, and therefore we cannot infer any malice in Mm.” It is no where said in the case, that under no circumstances could malice be inferred if any inferior tribunal had given judgment in favor of the prosecutor of a suit alleged to be malicious. Such is not the necessary inference, and Eyre, as baron of the exchequer, thinks that the expressions of Ch. J. Lee should have been a little varied, and if varied ás he thought they ought to be, *599they would in my judgment seem to repel the inference that the condemnation of the sub-commissioners was conclusive upon the question of probable cause. He was of opinion that instead of saying, as Ch. J. Lee did, that “we cannot infer malice,” it would have been more correct to say “ we will infer that there was probable cause for prosecuting the brandy to condemnation.” (1 T. R. 505, 6.)

We have an allusion to this case of Reynolds v. Kennedy in the opinion of Lord Mansfield and Lord Loughborough, in the celebrated case of Johnstone v. Sutton, which shews that they viewed it much in the same light as Baron Eyre had done. They say, that whether the circumstances alleged to shew probable cause or not are true and exist, is a matter of fact; but whether supposing them true they amount to a probable cause, is a question of law; and upon this distinction proceeded the case of Reynolds v. Kennedy. (1 T. R. 545.) Taking that case as presented by the report, and as explained by the learned judges to whom I have referred, it seems to be no more than this, that if it appears by the plaintiff’s own declaration that the prosecution which he charges to have been malicious was before a tribunal having jurisdiction, and was there decided in favor of the plaintiff in that court, nothing appearing to fix on him any unfair means in conducting the suit, the court will regard the judgment in favor of the prosecution satisfactory evidence of probable cause. The question seems to have been, what was sufficient, rather than what was conclusive evidence of probable cause.

The case now before us veiy different. Though the plaintiff admits in his declaration, that the suits instituted before the magistrate by the defendant were decided against him, he sufficiently countervails the effect of that admission by alleging that the defendant well knowing that he had no cause' ot action, and that the plaintiff had a full defence, prevented the plaintiff from procuring the necessary evidence to make out that defence by causing him to be detained a prisoner until the judgments were obtained; and by alleging that the imprisonment was for the very purpose of preventing a defence to the actions. We are asked by the defendant to look at the plaintiff’s declaration, and to say there was evidence of probable *600cause because it appears therein that the magistrate gave judgments in his favor, when the plaintiff at the same time that he confesses that fact, alleges it to be the result of the malicious, vexatious and oppressive acts of the defendant in designedly depriving him of the opportunity and necessary means to defeat the unfounded prosecutions. When the court look at the declaration for evidence of probable cause, they must assume that the whole of it will, or can be proved ; and thus viewing it, can we say that it is like the declaration in the case of Reynolds v. Kennedy felo de se ? Can we believe that the declaration in that case would have been considered by the court as furnishing evidence of probable cause, if it had shewn in addition to the condemnation of the brandy by the sub-commissioners that the defendant knew that the brandy was not subject to be condemned, and that the plaintiff had the means of proving that fact, but was prevented from doing so by the wrongful acts of the .defendant ? I cannot think it would have been so viewed. Taking all the allegations in the declaration in this case for true, I cannot believe we are required or warranted to infer that there was probable cause for the suits that were instituted by the defendant before the magistrate.

If we look beyond the declaration to the evidence, we see an iniquitous abuse of the process of the law to accomplish an illegal purpose. When the warrants were issued against the plaintiff he was in Onondaga county, and the defendant engaged the constable to decoy him within Oswego so that he might be arrested. He was taken a great distance from his friends before a magistrate, where by reason of being a stranger, he was unable to procure the requisite bail to entitle him to an adjournment. After the arrest, the defendant went to a person on whom he supposed the plaintiff would be likely to call for assistance, and attempted to purchase his silence, at the same time confessieg that he had got the plaintiff, and intended to train him until he gave up the verdict which had been obtained in the supreme court. After stating that he had recovered judgments, and for what cause, he observed in answer to a question, if they were not obtained for the same property that had been set off in the former *601suite, “It it is, that is my business.” It is proper to remark, that the defendant in this conversation did complain of the plaintiff’s conduct, alleging that he had recovered for the land, and at the same time wanted to keep what he had paid him for it.

Immediately after judgments were rendered against the plaintiff on the three warrants on which he was first brought before the magistrate, a fourth warrant was issued, a judgment obtained for money paid, and the plaintiff committed to jail on an execution issued thereon. This judgment was obtained on a claim for money paid which was allowed to the defendant as a set off on the trial of the cause in which the plaintiff obtained a verdict against him at Whitestown. There is no substantial allegation in the declaration which was not proved. The evidence exhibits a case of flagrant oppression. If the declaration does not shew want of probable cause, there is abundant proof of the want of it in the testimony.

The defendant offered to shew by the justice, by way of malting out probable cause, the evidence on which the judgments were rendered. This was objected to by the plaintiff, and overruled by the judge. The defendant contends that there was error in this decision. Where the prosecution alleged to have been malicious was for a crime and the defendant was a witness, he was allowed to shew what was his-testimony. (Buller’s N. P. 14. Scott v. Wilson, Cooke’s Rep. 315. Moodey v. Pender, 2 Hayw. 29.) But I apprehend no case can be found sanctioning the course proposed to be taken on the trial of this cause. If the defendant wished to shew probable cause, he should have done it otherwise than by proving by the magistrate what had been proved before him when the defendant procured the judgments against the plaintiff.

It is true that the jury gave liberal damages, but the conduct of the defendant was such as seemed to call for strong reprobation. The sacred functions of a tribunal of justice were perverted to the purposes of private oppression. He who is proved guilty of this desecration should, for example’s sake, meet with unstinted justice.

Judgment for the plaintiff.