| Mass. | Jun 18, 1874
In this, as in most cases of the kind, the real controversy was upon the question of probable cause. The want of probable cause is a vital and indispensable element in the plaintiff’s case, as to which the burden of proof rests upon him. Whether there was a want of such cause is a question of law upon the facts proved. Kidder v. Parkhurst, 3 Allen, 393. It is to be judged of, not upon the actual state of the case, but upon the honest and reasonable belief of the party that instituted the prosecution complained of. Bacon v. Towne, 4 Cush. 217. The case reported in this bill of exceptions shows that the plaintiff represented himself, in making the purchase, as the agent of Cutler, which was not true ; that he made this false representation for the sake of concealing the fact that he was the real purchaser ; that he did not intend to have the flour charged to himself for fear that his credit might be called in question, and that he obtained possession of the property by means of that false representation.
By way of explanation of what at first sight and without explanation appears to be a disingenuous and suspicious proceeding, well calculated to create an honest and reasonable belief in the mind of the defendant of a fraudulent intent, the plaintiff offered evidence tending to show the existence of a practice among flour dealers to buy in the name of some person other than the real purchaser, with the purpose of concealing the name of the real purchaser, “ and to cover up any speculation in which he might be engaged.” But it does not appear to be claimed by the plaintiff that this was one of the established, notorious and accepted usages of the trade which the defendant must be assumed to have known and recognized, and we are by no means prepared to say Jiat such a usage, if proved, could have any legal validity. And, what is perhaps more material, it does not appear by the bill of exceptions that the defendant had any knowledge of the existence
The proceedings of the Municipal Court were sufficiently proved by the docket, which is the record, until the more full record is made up. Pruden v. Alden, 23 Pick. 184. Read v. Sutton, 2 Cush. 115. The other exceptions taken in the case we have not deemed it necessary to consider. The evidence relied upon by the plaintiff, whatever its effect may be to explain his conduct, and to acquit him of any fraudulent intent, has no tendency to show that the defendant was not acting under an honest and reasonable belief, and with apparent or probable cause. This defect in the plaintiff’s case is insuperable, and therefore the defendant’s
Exceptions are sustained.