74 Md. 136 | Md. | 1891
delivered the opinion of the Court.
This suit was brought on the 27th day of March, 1890, by the appellant against the appellee. It is an action for malicious prosecution, and the declaration charges that the defendant falsely, maliciously, and without any reasonable or probable cause, procured the plaintiff to be arrested and indicted on the charge that he had, in violation of Article 27, section ljLl, of the Code, secreted certain mortgaged chattels, with intent to defraud the mortgagee. This section of the Code makes it a misdemeanor, punishable by imprisonment in jail for not more than six months, or by a fine of not more than five hundred dollars, or both, in the discretion of the Court, for any mortgagor of personal property to secrete the same with intent to defraud the mortgagee or his assigns.
There was some argument at bar as to the construction of this section. Counsel for the appellee contended that the mere removal of mortgaged chattels from the place where they were located when the mortgage was executed, without the written assent of the mortgagee, is thereby made an offence, no matter whether the removal be from one county or city to another or not. On the other hand, counsel for the appellant insists that where the removal is'from one place to another, within the same city or county, there must be secreting in order to constitute the offence. We do not, however, find from the record that this question is so presented by any ruling of the Court below as to authorize or justify this Court in deciding it. The declaration complains that the plaintiff was wrongfully arrested on the charge of secreting the goods, and such is the charge in the warrant under which the arrest was made.
The declaration also charges that the proceedings under the arrest and indictment in the Criminal Court were terminated by the entry of a nolle prosequi by the
After the testimony was closed the Court rejected the four prayers .of the appellant, and granted the defendant’s prayer that there “is no legally sufficient evidence of a want of probable cause for the prosecution mentioned, in the declaration, and their verdict must be for the defendant. ” This, of course, ended the.case. The jury were bound by-the instruction to render, as they did, a verdict for the defendant. Was there error in this ruling ? Without doubt, the legal sufficiency of evidence to support the issue sought to be established is a question of law for the Court,'and it is equally clear that, in cases of malicious prosecution, the onus is on the plaintiff to prove and show, by facts and circumstances, the want of probable cause for the criminal prosecution of which he complains. This is an essential part of his case. Probable cause as defined in Munns vs. Dupont, 3 Wash. C. C. Rep., 31, is such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing the party accused to be guilty. This definition was- accepted by this Court in
This brings us to an examination of the facts of the case as they appear in the record, and in dealing with them we must consider them in the light in which they appeared to the defendant when he instituted the prosecution. The facts about which there is no dispute are substantially as follows: The defendant, Yernon, is a pension agent or attorney, and also engaged in the business of loaning small sums of money for poor people. The plaintiff, Hooper, is connected with, the press as a writer and reporter for the newspapers, and applied to Yernon for the loan of one hundred dollars, offering as security his household and kitchen furniture in the premises 1127 North Gilmor street where he then resided with his family. At the time of the application he told Yernon that Mr. S. G. Miller, a real estate agent and broker,, who had his office next to that of Yernon, had a mortgage on his furniture, on which there was a balance of $37.50 due, which he Avas anxious to pay, and referred him to Mr. Miller for information. Yernon agreed to see Miller, and to lend the amount at six per cent, interest, if his agent, Stanton, found the security ample. Afterwards Yernon informed Hooper he could get the loan, and on the day appointed Hooper called. and executed the mortgage. The money loaned belonged to Mrs. Gardner of York City, Pennsylvania, and the mortgage, which is dated February 28th, 1889, was given to her. It covers the furniture “noAvin premises known as 1127 North Gilmor street, Baltimore City, Mary
These are the undisputed facts in regard to the negotiation of the loan, the execution of the mortgage, and the insurance of the property.' They show that Vernon, as was his imperative duty, 'had taken every proper precaution to secure his client whose money he thus loaned to an entire stranger, not only to her, but to himself. Now, whatbccurred between this and the date of Hooper’s arrest which was effected on the 9th of August, 1889 ? On the 15th of the preceding July, Hooper had the mortgaged furniture removed from 1127 Gilmor street to a storage warehouse 221 South Eutaw street, where it was stored in the name of Mrs. L. V. Hooper, who was his wife, and subject to her order. On the same day he and his wife went to a room they had previously rented at Calvert and Pleasant streets, where they remained a week, and then removed to a boarding house on
Sometime before the arrest Yernon heard that the goods had been removed, and then at once made inquiries, and requested others to inquire where Hooper had moved to, and where the furniture was, and was informed he was then living at 214 North Liberty street, was constantly seen on the streets, and “that he intended going to Neio York. ’ ’ This information was from a source upon which a cautious man would be justified in relying. Stanton, the agent of Yernon, testifies that at Yernon’s direction, he had two interviews with Hooper, the first in the latter part of July, at 214 North Liberty street, in the morning, when witness said to him “from vfiiat we can learn you have removed from 1127 North Grilmor street,” to which Hooper replied, “it is a fact. I am located here. ” Witness then said “it is important to have the policy of insurance changed from the number in the policy to the present location of the goods; it was as mimh your benefit as ours;” to which Hooper replied “I will attend to it at once,” and witness then left; that the second interview was at the same place, in the early part of August, when witness said to him “Mr. Hooper you have not attended to .the policy after making the promise,” to which the reply was “I will attend to it.” Witness then said to him: “To save you any inconvenience, if the goods.are here, or if you will let me know where they are, we will attend to having the policy transferred;”
Having thus decided there was probable cause for the institution of the criminal prosecution mentioned in the declaration, it is hardly necessary to say we find no legally sufficient evidence of a want of such probable cause. The principal argument upon which the want of probable cause is based, is that Vernon did not hunt up Hooper, and find out from him, if he could, to what place the goods had been removed. But surely he was under no obligation, nor was it his duty, to do this. • He assumed, and had the right to assume, that Hooper was an honest debtor, and would do what an honest man would do in such circumstances. As soon as he had probable cause to believe that Hooper had secreted the goods for the purpose of defrauding the mortgagee, it would have been folly for him to have acted otherwise than he did.
We find no error in the instruction granted, and therefore affirm the judgment.
Judgment affirmed.