33 A. 525 | R.I. | 1896
In our former rescript we held that the declaration set forth no cause of action because, though it alleges that the defendant maliciously prosecuted the plaintiff and without probable cause, it went on to state that the defendant caused the plaintiff to be arrested and brought before the District Court of the Tenth Judicial District and to be bound over by that court to await *339
the action of the grand jury, and to be indicted, c. We were of the opinion that, though the declaration averred that the prosecution was without probable cause, that allegation was overborne by the averment that the plaintiff was bound over by the District Court to await the action of the grand jury and was indicted by the grand jury, there being no allegation that the binding over and indictment were procured by undue means. We stated that the fact that the plaintiff was bound over, and afortiori, indicted, was conclusive evidence of probable cause, referring in support of the statement to Welch v. Boston Providence Railroad Corp.,
Counsel for the plaintiff has reargued the question. He criticizes our use of the word "conclusive," contending that the binding over and indictment are not conclusive but only primafacie evidence of probable cause; that the only conclusive evidence of probable cause is the judgment of a court having power to convict, which judgment is conclusive of the question, even though subsequently set aside on appeal. He further contends that, as the binding over and indictment are only prima facie evidence of probable cause, it is not necessary to do more in the declaration than to allege that the prosecution was malicious and without probable cause.
We think we shall be obliged to concede that the word "conclusive" was not well chosen; for since the decision inBurt v. Place, 4 Wend. 591, even a judgment has not been regarded as absolutely conclusive, since the presumption which would otherwise arise from it may be overcome by averment and proof that it was obtained by undue means. Marcy, J., in this case states "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 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 judgment relied on by the defendant, though *340 by a court having jurisdiction to convict, was held not conclusive because, as the opinion goes on to state, "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 of 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." And see Spring v. Besore, 12 B. Mon. 551; Crescent City LiveStock Co. v. Butchers' Union Slaughter-House Co., supra.
Doubtless we should have used the term "prima facie" in describing the effect to be given to the action of the court in binding over and of the grand jury in indicting the plaintiff, since, strictly speaking, there is no conclusive effect to be given to a judgment, even, which is evidence of a higher nature than a binding over and indictment, but such judgment is only conclusive or, as Judge Marcy terms it, satisfactory evidence when not rebutted by averment and proof that it was unfairly obtained. But we do not see that our decision itself was on that account erroneous. The question is one of pleading, and the allegation of facts which are prima facie evidence of probable cause necessarily stands as conclusive until something further is alleged to rebut the presumption arising from that allegation. An allegation that the plaintiff was bound over by a court having jurisdiction for that purpose, and that the plaintiff was indicted by the grand jury, is an allegation of facts which are a sufficient or satisfactory evidence of probable cause, unless some further facts are averred which countervail the effect to be given them, as the judgment of a court from which the appeal would lie. To rebut the presumption of probable cause in either case, as it seems to us, requires the averment of some additional fact or facts showing fraud, perjury or other undue means. *341
As to the contention of the plaintiff's counsel that theprima facie effect of the binding over and indictment is taken away by the averment that the prosecution was without probable cause, it seems only necessary to say that the averment of a want of probable cause by itself is not a statement of fact but only of a conclusion of law: that this conclusion is not only unsupported by an allegations of fact in the declaration, but in the absence of allegations of fact supporting it, is negatived by the allegation of the facts of the binding over and indictment.
The only case cited by plaintiff's counsel in support of his contention, in which the question as to whether it is necessary for the plaintiff to allege undue means in procuring the binding over, in order to rebut the presumption of probable cause arising from it, is considered, is Ross v. Hixon,
Plaintiff's counsel also refers to 2 Chit. Pl. (7th Eng. ed., corrected and enlarged by Henry Greening; 16th Am. ed., with notes and references to Eng. and Am. decisions by J.C. Perkins), 555; Oliv. Prec. (5th ed. revised and enlarged by Boardman Hall), 523; and to the declaration in Bacon v. Towne, 4 Cush. 217. In the precedents given in Chitty and Oliver, the cases from which they were drawn are not given. In a note in Chitty, reference is made to Dubois v. Keats, 11 Ad. El. 329. But it does not appear in that case, nor in Bacon v. Towne, 4 Cush. 217, that the question we have considered was suggested, and therefore we do not think that these authorities, however worthy of respect, are controlling.