Chandler v. McPherson, 11 Ala. 916

11 Ala. 916 | Ala. | 1847

COLLIER, C. J.

It is said that two things are essential to the maintenance of the action for a malicious prosecution, and must always concur, viz : malice and want of probable cause; for if there be no malice, though there be no probable cause, yet no action lies. If there was no malice and no probable cause, the defendant was merely mistaken in causing the prosecution to be instituted. [2 Dane’s Ab. 723, 724, 728, and cases there cited; 2 Saund on Plead. & Ev. 654, 659, 662.]

In Lindsey v. Larned, 17 Mass. Rep. 190, the court said, that malice is a necessary ingredient in an action of this nature. There none was imputable to the defendant — but being anxious to recover a debt, he took those measures, and those only, which under the best advice he found adapted to that purpose, without any apparent desire to vex and harrass his debtor, although the proceeding may have had that effect. [See also, 4 Mass. Rep. 433; 2 Munf. R. 23 ; 1 Hals. Rep. 166; 3 Hawk. R. 545.] So it has been held, if a man prosecute another for real guilt, no matter how malicious his motive may be, he is not liable in an action for malicious prosecution; nor is he liable if he prosecute him for apparent guilt, arising from circumstances which he honestly believes. [3 Hawk’s Rep. 66; see also, 2 Dev. & Bat R. 360; 12 Pick. R. 324; 9 East R. 361; Meigs’ R. 84.]

It is an acknowledged rule that malice may be inferred from the want of probable cause, but the want of probable cause cannot be inferred from the most express malice. [1 Wend. Rep. 140, 345; Cro. Jac. Rep. 133; 1 B. & P. Rep. 205; Dane’s Ab. 724; 2 Starkie’s Ev. 911 to 916, and citations in notes.]

In Blunt v. Little, 3 Mason’s Rep. 102, Mr. Justice Story said, “it is certainly going a great way to admit the evidence of any counsel, that he advised a suit upon deliberate examination of the facts, for the purpose of repelling the imputation of malice, and establishing probable cause. My opinion however is, that such evidence is admissible, although it is sometimes open to the objection stated in Hewlett v. Cruchley, 5 Taunt. R. 277.] But it appears to me, that a necessary qualification of the admission is, that it should appear in proof that the opinion of counsel is fairly asked, upon the real facts, and not upon statements which conceal the truth, or misrepresent the cause of action. [See also, Turner v. Walker, 3 G. & Johns. Rep. 377; Ravenga v. McIntosh, 2 B. & C. Rep. 693; Stone v. Swift, 4 Mass. Rep. 389.] In the case last cited, it appeared upon the trial, that the defendant had consulted counsel: and the court said, it appears that the defendant had acted upon advice of counsel. If he did not withhold any information from his counsel, with the intent to procure an opinion that might operate to shelter and protect him against a suit, but on the contrary, if he being doubtful of his legal rights, consulted learned counsel with a view to ascertain them, and afterwards pursued the course pointed out by his legal adviser, he is not liable to this action, notwithstanding his counsel may have mistaken the law. So it has been held, that the representations made to the defendant by third persons, as to the plaintiff’s guilt, are admissible for the defendant, as showing a probable cause, though such representations prove unfounded. [4 Verm. R. 363; see also, 2 Munf. R. 23 ; 1 Hals. R. 166; Buller's N. P. 14; Cro. Jac. R. 194; 6 Bing. R. 183.]

The case of Merriam v. Mitchell, 13 Maine R. 439, we understand, decides that the assurance of the defendant of the guilt of the’plaintiff, however strong it may have been, if founded upon his own error, or mistake in point of fact, or proceeded from his own negligence in acquiring information, cannot be regarded as probable cause to justify a prosecution against an innocent and unoffending man, who had given no color for suspicion against him. Hickman v. Griffin, 6 Miss. Rep. 37, goes quite beyond any other which our industry has enabled us to find. There the court say the real point of inquiry is, whether there was probable cause to believe the plaintiff guilty, or whether he had probable cause to institute the prosecution, not whether he believed he was guilty. See further, 1 Stew. Rep. 39; 2 Stew. & P. Rep. 151, as to the necessity of malice on the part of the defendant to entitle the plaintiff to recover.

In Seibert v. Price, 5 Serg. & W. Rep. 438, it was said, in an action for a malicious prosecution, the question of probable cause should be submitted to the jury, riot upon the fact of the guilt or innocence of the plaintiff, but upon the defendant’s belief of his guilt or innocence. [See also Swaim v. Stafford, 4 Ired. L. R. 392.]

Having stated the legal principles which are necessary to guide us to a conclusion, we will now address ourselves specially to the ruling of the circuit court as drawn in question by the bill of exceptions. We think the testimony of the legal adviser of Mrs. Formby was admissible, not for the purpose of relieving the defendants from the imputation of malice, for there is no evidence to show that they were cognizant of this advice ; but the testimony might have been considered by the jury, upon an inquiry whether Mrs. F. was influenced by the counsel of the attorney, or the prompting of the defendants. It may be that the defendants first instigated the prosecution, yet the prosecutor may have availed herself of the locus penitentiae, and would not have become an actor but for the professional advice she received. If this hypothesis be well founded, then the defendants cannot, with any propriety, be said to have caused or procured the prosecution of the plaintiff, although they may have urg- ' ed it; and no recovery could be had against them, even if the proof of malice, and want of probable cause ’ were satisfactorily established,

The only cases- that have come under our notice, which seem opposed to the charge to the jury, are those cited by the counsel for the plaintiff in error, from 13th Maine and 6th Missouri Reports. The former seems to consider that an error or mistake resulting from crassa negligentia either warrants the implication of malice, or is in law a substitute for it. However this may be, we will not stop to inquire, as there are no facts recited in the bill of exceptions to show that the same question was presented in the present case. As for the latter decision, it stands “solitary and alone,” unsupported by any citation in the opinion in which it is found, and. contradicted by many of the cases we have referred to. It may be safely affirmed as a general rule, that although the defendant in an action for malicious prosecution may not be able to show a probable cause for prosecuting the plaintiff, or the plaintiff may prove a state of facts from which the want of it is inferable, yet if the defendant acted under an honest belief that the plaintiff was guilty of the offence for which he was charged, no recovery can be had against him. This conclusion is so clearly sustained by the authorities cited, that further argument is not necessary to illustrate it. The ruling of the circuit court is in accordance with the views we have expressed, and its judgment is consequently affirmed.