Kidder v. Parkhurst
85 Mass. 393
Mass.
1862
Check Treatment
Metcalf, J.

In an action for malicious prosecution, probable cause for the prosecution is a defence. Whether there was probable cause is a question of law on the evidence. When the evidence is contradictory, the court will submit the question to the jury, under instructions adapted to the facts which they shall find to be proved. Cloon v. Gerry, 13 Gray, 201. Blachford *396v. Dod, 2 B. & Ad. 184. Hinton v. Heather, 14 M. & W. 134. In the present case, there was no contradictory evidence that required the action of a jury; but the evidence was such as, in our judgment, showed probable cause for the prosecution complained of in the first count in the plaintiff’s declaration. It was believed by several persons that the charge was true on which the plaintiff was prosecuted; and there seems to have been sufficient reason for believing that she had not testified correctly, in all particulars, at the trial of her daughter’s action against the town of Dunstable. And though, upon her own trial, the accusation of perjury was found to be groundless, yet this finding did not negative the existence of probable cause for making the accusation. That was to' be judged of, not upon the actual state of the case, but upon the honest and reasonable belief of the party prosecuting. Bacon v. Toune, 4 Cush. 238, 239. And want of probable cause cannot be inferred from the malice of the prosecutor. Parker v. Farley, 10 Cush. 281. 2 Greenl. Ev. §§ 454, 455. It has always been held that actions of this kind are not to be favored. And “ the onus probandi is upon the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendants had no ground for commencing the prosecution.” By Morton, J., in the case of Stone v. Crocker, 24 Pick. 84.

The second and third counts in the plaintiff’s declaration are for a libel on her in a complaint made by the defendants ágainst her for perjury. The bill of exceptions shows that this complaint was made to the grand jury. It therefore appears to have been made in the regular course of justice. And the decisions, ancient and modern, are uniform, that no proceeding in a regular course of justice is to be deemed an actionable libel. Cutler v. Dixon, 4 Co. 14 b. Lake v. King, 1 Saund. 131. Addison on Torts, 581, 582. Holt on Libel, 171, 172. 1 Stark. Sland. (Wendell’s ed.) 243-247. Watson v. Moore, 2 Cush 138. In Hill v. Miles, 9 N. H. 14, it was said by Parker, C. J that “ an action for a libel cannot be sustained for a proceeding before a court having jurisdiction of the subject matter, if the process was instituted under a probable belief that the matter *397alleged was true, and with the intention of pursuing it according to the course of the court, even if the matter turns out to be wholly false.”

Judgment for the defendants.