Weaver v. Townsend, 14 Wend. 192

Weaver v. Townsend

14 Wend. 192 | N.Y. Sup. Ct. | 1835

By the Court,

Nelson, J.

The only question in this case Is, whether in judgment of law there was sufficient evidence of the want of probable cause, which constitutes an indispensable ingredient to the maintenance of this action. Where there is no dispute as to the facts, the question of probable cause or not is one of law; when the facts are controvert* ed, they should be submitted to the jury, with proper instructions as to the law.

We are to assume all the facts bearing upon this point to be true, for it must have been upon that supposition only that *194the court below made their decision. They had no right to the evidence, and reject or retain parts of it at discretion. 2 Wendell, 442. 6 id. 418. 7 Cowen, 715. The exceptions is somewhat obscurely made up; but as it appears before us, there cannot be a reasonable doubt upon the point. The defendant could not have been ignorant of the exact situation of the property, and the claims of the plaintiff to it, if he possessed common understanding at the time he made the complaint before the magistrate, charging a felonious taking of it. This was in March, 1833, and must have been before the 25th, as the declaration in this cause is captioned of that date.

A member of the grand jury of the county of Yates, in a session in September, 1832, proved that a complaint was preferred by the defendant against the plaintiff for feloniously taking a pair of horses which had belonged to Green and Finley. The defendant was sworn on that occasion. Another witness was also sworn, who testified before that body that the horses had been turned out to the plaintiff by Green and Finley previous to the transfer to the defendant. Now, as early at least as September, 1832, the defendant must have been in possession of the facts in regard to the plaintiff’s title to these horses, because it is but reasonable to infer that he interested himself enough in the complaint thus preferred to ascertained the result of it, and the facts upon which it was arrived at. There are no objections to the grand jury or any member of it disclosing thus much of what transpired before them. The charge subsequently preferred before the magistrate in March, and upon which the warrant issued, and which is the malicious prosecution complained of, was, as I understand it, for one of these same horses. Again: it appears from the magistrate’s testimony, that one reason why he discharged the plaintiff when brought before him was, because the defendant, on the examination, testified that a dispute existed between him and the plaintiff as to the property in the horse; and, I infer from the language, that it appeared from the defendant’s own testimony on that occasion, that the dispute existed before the complaint was made. Another witness proves a dispute between these parties as to the *195horses, though there is some obscurity as to the time. It was soon after the witness heard of the failure of Green and Finley; but when that took place, does not appear.

Upon the whole, I cannot entertain a doubt that the court below erred in ruling there was no evidence of want of probable cause, and in nonsuiting the plaintiff. The judgment must therefore be reversed.

Judgment reversed.