1 Wend. 140 | N.Y. Sup. Ct. | 1828
By the Court,
This is an action for a malicious prosecution. The plaintiff was nonsuited at the trial, which nonsuit he now moves to set aside. The essential ground of this action is, that a legal prosecution has been carried on without a probable cause. The evidence in the case failed to establish that fact. The defendants took an active agency in procuring the complaint to be made, and the plaintiff to be arrested ; but if they believed the story of Miranda Johnson, they did in this no more than their duty. Miranda Johnson repeated the same story to Judge Chandler, upon the strength of which he issued a warrant for the arrest of the plaintiff. Her story was told to several persons, who seem to have believed it. Her parents appear to have believed it; and although she was infirm in mind and body, and subject to fits, it does not appear that her declarations were considered unworthy of credit or belief. A jury certainly would not be justified, on the evidence in this case, in saying that there was no probable cause for the proceedings against the plaintiff, although they might believe that the defendants were actuated by improper and malicious motives. But malice alone will not sustain the action. It requires malice and the want of probable cause. From the want of probable cause malice may be implied ; but the want of probable cause cannot be implied from the most express malice. It
