iBy the Court,
Woodworth, J.
The declaration alleges, that the first summons issued on the thirtieth day of March, and the proof is, that it was served on the fifteenth of that month; and for this variance, the defendant moved for a nonsuit, which was denied by the common pleas, and correctly. The time of service is not a material allegation. Besides, it appears that the summons in each cause was regularly served. The day of service, as stated, was impossible; it contradicted what had been before alleged, viz. that the summons issued on the thirtieth day of March; it must, therefore, be rejected, and then the declaration is left without any affirmation as to the day of service, but containing an averment that the summons was served, and that the party appeared.
From an examination of the cases, it appears that an arrest and holding to bail are not indispensably necessary, in order to maintain an action for a malicious prosecution. It has been sustained in cases where there was neither an arrest or bail; and when it is considered that malice and the want of prolS able cause are. the foundation of the action, it would seem, on principle, to reach cases where the injury would be equally *351great, although the proceeding did not require an arrest or bail. Thus, in Van Deusor v. Linderman, (10 Johns. R. 106,) the court sajr, 65 To sustain a suit for a former prosecution, it must appear to have been without cause, and malicious.” In Brown v. Chapman, (1 Black. R. 427,) it was held that an action on the case lies for suing out a malicious commission of bankruptcy. In the case of Reynolds v. Kennedy, (1 Wils. 233,) the plaintiff commenced an action for a malicious prosecution, in seizing and detaining a quantify of brandy. Under the circumstances, the action was not sustained, and principally on the ground that the prosecutor, (who had Exhibited an information against the plaintiff alleging that he intended to carry away the brandy without paying the duly,) had not been guilty of any malice. It is observed by the court in that case, the express malice and grievance must be laid in the declaration, and proved ; and it is not enough to say the defendant brought an action against the plaintiff ex malitia and sine causa, per quod he put the plaintiff to great charges. I understand from this doctrine, that something more than a general allegation that a suit was commenced maliciously, must be stated ; a particular grievance must be alleged. I incline to think the plaintiff has complied with this rule, by setting out the several suits, adjournments and proceedings, which constituted the grievance complained of, and from which resulted the damage sustained. The court further observe, that if an action upon a false surmise be brought in a proper court, an action does not lie against him that brought it, and thereby charge him with it as a fault directly, as if the the suit itself was a wrong act for executio juris non habet injuriam; but the gist of this sort of actions arises from some evil practice or malice in him who sues or prosecutes. It seems, therefore, to me, that although in the case of Reynolds and Kennedy the plaintiff failed, the principles advanced apply extensively, and are not confined to cases of an arrest or bail.
The case of Waterer v. Freeman, (Hobart, 206, 266,) recognizes the doctrine, that although an action be brought in a proper court, if the suit or proceeding be utterly without *352ground, and that known to the person himself, an action lies for the undue vexation and damage to the plaintiff. Chief Justice Hobart, in delivering the opinion of the court, went into a full exposition of the principles upon which the right.of recovery was founded ; and although the injury was against the property, the action was held to lie.
The question remaining to be considered, is, whether there was sufficient evidence of malice, and the want of probable cause. The plaintiff was bound to shew both: The rule seems to be, that from the want of probable cause, malice may be, and commonly is implied; but from the most express malice, the want of a probable cause cannot be implied, (4 Burr. 1974. D. & E. 544.) The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to shew it probable or not probable, are true and existed, is a matter of fact; but whether, supposing them true, they amounted to a probable cause, is a question of law. (1 D. & E. 545.) The court observe, that upon this distinction proceeded the case of Reynolds and Kennedy, (1 Wils. 232.)
The court below erred in submitting both the law and the fact to the jury. This was necessarily the consequence of the charge ; for the court instruct the jury, that if from the testimony they should be of opinion that the prosecutions were malicious and without probable cause, and the defendant knew the facts to be so, they ought to find damages for the plaintiff. The jury found damages for the plaintiff. Probably they had no difficulty in arriving at the conclusion that the defendant’s motives were malicious, after proof of the defendant’s declaration that he would bring the plaintiff four times to Guiiderland for the same cause, and the course he pursued to effect the object in view, but they also passed on the question of want of probable cause; and although the court ought to have instructed the jury whether, on the supposition that certain facts were established, they would show the want of probable cause, still, if on a review of the case by this court, it shall appear that, from the facts not disputed at the trial, there was evidently a want of probable cause, the verdict ought not to be set aside for the error of the court below in *353this respect, because this court are called on to pronounce on that question ; and if they see that the jury have not erred in point of law, although the charge was erroneous, no injury has been done to the defendant below, of which he has a right to complain. In making this remark, however, it must be understood, that if the evidence as to any material facts is contradictory, or leaves the question doubtful whether the fact existed or not, then the error of the court is good ground for a reversal, inasmuch as this court cannot take upon itself to draw inferences from conflicting testimony ; this is the exclusive province of the jury. On these principles, I will examine the question as to probable cause. It is conceded that the defendant boarded with the plaintiff during the sitting of the circuit court, a part of two weeks, at the price of three shillings per day. The plaintiff’s witness thinks he boarded as long as three or four days; the defendant’s witness thinks he was not there more than three days. The length of time is thus left uncertain—a defect which the court cannot supply. If the finding of this fact, agreeably to the opinion of the defendant’s witness, would make out probable cause, the defendant is entitled to have a jury pass upon it under a proper charge from the court; consequently, that fact must be put out of view, or rather we must determine whether, on the supposition that the defendant boarded three days only, there was any probable cause for calling on the plaintiff by action to refund. It seems the defendant did not pay at the time. He was afterwards written to, and when he paid the 12s., he made objections, which have already been noticed. The plaintiff in this cause gave the defendant a receipt. There is no reason to doubt that the charge of the plaintiff was made in good faith ; still, if, in fact, the defendant had boarded but three days, the plaintiff received more than was due. Had there been no diversity of testimony as to the number of days, and the plaintiff had received payment only for the ascertained time, I do not perceive how the defendant could show the least color or pretence for his action; it would, in that case, be stript of even the semblance of plausibility. But when that fact remains somewhat doubtful from the testimo. *354ny adduced, the inquiry is, whether the settlement, payment and receipt, were absolutely conclusive, so as to preclude the inquiry as to any excess of compensation received by the plaintiff. If the defendant was not concluded by the payment, provided he could shew an overcharge, then it follows that there was probable cause. If the testimony in his power to produce, rendered the fact of over-payment probable, and although a jury may have found against him, nevertheless it could not correctly be affirmed that there was the absence of probable cause. On this point the evidence is nearly in equilibrio, and perhaps a jury might be justified in finding either way. If it be admitted that the defendant boarded three days, and that had the matter been contested in a court of law, no more than 9s. could have been recovered; yet, here, the defendant, with full knowledge of the fact, elects to pay 12s., the sum demanded, and takes a receipt in full of the plaintiff’s claim: he cannot afterwards litigate the same question in an action to recover back a part. The defendant had knowledge of the facts, and is presumed to have knowledge of the law. Ignorance is not pretended. The defendant, besides, was informed no action would lie. There may have been error; but no fraud, on the part of the plaintiff, can be presumed. This doctrine is well settled in Bilbie v. Lumley, (2 East, 469.) It was held, that money paid by one with full knowledge, or the means of knowledge, of all the circumstances, cannot be recovered back again, on account of such payment having been made under an ignorance of the law. Lord Ellenborough asked the counsel whether any case could be stated to that effect, to which no answer was given. In 2 Johns. R. 165, chief justice Kent considers this case as settling the law in England, and observes that the law seems to be in conformity with the doctrine anciently taught in the Doctor and Student.
In Brown v. McKinally, (1 Esp. Rep. 279,) lord Kenyon held, that where a party sued on a claim which he knows to be unfounded, pays it voluntarily and with notice, it is’not recoverable back in assumpsit, though at the time he pays it he declares that he pays it without prejudice to his right to recover; and observed, that to allow it, would be to try every *355such question twice. It then appears that there was no probable ground on the fact or the law, but the want of it. A case so palpably unfounded, and known to be so, warrants the inference that the prosecution was intentionally vexatious. This, coupled with the avowed purpose of the defendant to call the plaintiff to Guilderland four times, a distance of fourteen miles, shews very satisfactorily that there was express malice. The judgment of the court below is affirmed.