Gorton v. De Angelis , 6 Wend. 418 ( 1831 )

By the Court,

Marcv, J.

What took place in relation to the first suit commenced by De Angelis, does not afford competent evidence of a want of probable cause. The summons was in trespass on the case. As the plaintiff did not declare. we are without evidence that would authorize the inference tf]at he SOught therein to recover what he might have set off iQ the suit instituted by Gorton against him. It would, I think, be rather conjecture than a conclusion warranted by facts, for us"to say that he did not intend to appear at the return of the summons, but procured it to be issued from malice and with a view to harass Gorton. This prosecution, though' it may reflect some light on those that followed, does not shew the cause for which it was instituted, and much less does it shew that it was instituted for no probable cause.

As to the second suit, the plaintiff is met by insurmountable difficulties, in attempting to make out that it was without probable cause.' It is necessary that he should aver and prove that the prosecution, which he alleges to have been malicious, was not only terminated, but terminated in his favor. This is a general rule, to which I believe no exception can be found. The recent case decided by this court, Burt v. Place, 4 Wend. R. 591, may possibly be viewed as an exception ; but in truth it is not so. In that case, it is true the suits complained of as malicious were decided by the magistrate in favor of the plaintiff, but the defendant brought appeals, and reversed the judgments in the courts below. This court held that the appeals were a continuation of the suits, and the decisions of the common pleas, in favor of the appellant, satisfied the rule of law that the suit alleged to be malicious, must be decided against the person instituting it. The second suit complained of in this case as malicious, was decided in favor of the plaintiff therein; and that decision now remains in full force. The plaintiff brought an appeal, but afterwards discontinued, and paid the costs of the appeal. That suit cannot, therefore, be adjudged to have been without probable cause.

As to the third suit, it will hardly be pretended that the procuring of a summons to be issued, and failing to appear in court at the return of it and prosecute the suit, is sufficient evidence of a want of probable cause to sustain an action for a malicious prosecution. It should be recollected that in such action the plaintiff must shew affirmatively that there was a want of probable cause. It is not sufficient for him to shew that the defendant did not proceed in the suit which he alleges to have been malicious, and thence infer that there was no probable cause for instituting it, or thereby seek to shift the burden of proof as to the probable cause on the defendant. But it is insisted for the plaintiff that the pendency of the suit of the plaintiff against the defendant, in which the defendant had the right, and in which it was his duty to set off any claim he had against the plaintiff arising on contract, and his instituting the two previous suits against the plaintiff, before Townsend, are sufficient evidence of the want of probable cause for the last suit. .The same remarks which I made on the effect of the pendency of the plaintiff’s suit against the defendant, upon the question of probable cause in relation to the first suit, commenced by De Angelis against Gorton, apply to this suit. As the second suit by the same plaintiff cannot be alleged to be a malicious prosecution, because it terminated in his favor, it would seem to be inconsequent reasoning to regard it as any evidence that the last suit was without probable cause.

It is said that probable cause is a mixed question of fact and law, and the facts in this case should have been submitted to the jury for them to infer a want of probable cause. What is meant by the expression that probable cause is a mixed question, and when it is proper to submit it to the jury to pass on, is explained in Masten v. Deyo, 2 Wend. R. 424. If the facts, which are adduced as proof of a want of probable cause, are controverted; if conflicting testimony is to be weighed; or if the credibility of witnesses is to be passed on, the question of probable cause should go to the jury, with proper instructions as to the law; but where there is no dispute about the facts, it is the duty of the court on the trial to apply the law to them. In this case there was no contest about the facts, no conflict in the testimony, no impeachment of the witnesses. We cannot, therefore, say the judge erred in assuming to himself to pronounce upon the legal effect of the evidence, nor do we think he erred in the conclusion to which he arrived.

Motion for new trial denied.