
    Gray against Pentland.
    In Error.
    
      September.
    
    [For a former report of this case, see Vol. II. p. 23.]
    In an action for a libel on the plaintiff, contained in an affidavit made by the sent to the’Gotivetothe'6" ^0 office1’ Governor! win, the want of probable cause in the ma^beieftto the jury as malice?6 0t
    The proof of the fact, from which malice is to be inferred, lies on the plaintiff.
    ERROR to the Court of Common Pleas of Allegheny . * J COUnty*
    This was an action brought by Pentland, the plaintiff below, against Gray, for defamatory language contained in an affidavit made by Gray, and sent to the Governor of the Com-“touching the official conduct of the plaintiff, who was the prothonotary of the Court of Common Pleas of Allegheny countyand also for verbal slander in promulgating its contents,
    ^ aPPeare<^ evidence, that a rough draft of this affidavit had been drawn up by Gray, and handed by him to George Cochran, with a request that he would transcribe it, and put it into form, which he accordingly did. Gray then went be- ° J J 
      fore' W. Steele, esq. a justice of the peace, and requested Mr. Steele to swear him to the contents of the paper. Mr. Steele inquired of Gray, whether he -was acquainted with the contents of the paper, and being answered in the affirmative, he swore Gray to the truth thereof. After Gray had sworn to and subscribed the affidavit, he requested the magistrate to read it, which he did. Gray then observed, thát he considered himself aggrieved by Pentland’s official conduct, and intended to send on that affidavit to the Governor, for the purpose of having Pentland removed from office; The defendant justified on the ground, that the affidavit was made for the purpose of causing an inquiry to be instituted into the official conduct of the plaintiff, and his fitness for office.
    The Court below were requested by the defendant’s couri-. sel, to charge the jury on the following points, viz.
    
    1st. Whether if the deposition by the defendant, which has been given in evidence, was made for the purpose of being forwardéd to the Governor, and actually forwarded accordingly, with the intention of procuring an investigation of the plaintiff’s official conduct, and fitness for office, by the Governor, will not the occasion of making the said deposition, excuse the defendant in-this action for making the same, unless the plaintiff prove express malice on the part of the defendant, even although the defendant should not prove the facts therein stated, to be true ; or, is malice to be implied on the part of the defendant, unless he shews, that the facts stated are true, or that there was a probable cause at the time, to believe them to be true ? >
    2d. If it be necessary to shew, on the part of the defendant, a probable and reasonable cause to believe the facts stated in the deposition to be true, and if the defendant has proved to the jury, and the jury should believe, there was probable cause for making said deposition, will not the defendant be excused for making the same, although made with the intention of producing the removal of the plaintiff from office ?
    The Court charged the jury as follows:—.
    It is the opinion of the Court, that in order to render the defendant in this case culpable, the existence of malice, as well as falsehood, must be satisfactorily established.
    The existence of this malice may be shewn in several ways, or from a combination of various facts and circumstances.
    
      In ordinary casejs, falsehood is evidence of malice; but in a case like the present, we should think that something more ought to be required; namely, the absence of reasonable and . probable cause at the time when the charge was made. If the charges were true, or, if there were reasonable and pro* bable grounds for making them, the' defendant would be justified, although his object were the removal of the plaintiff from office. But, on the other hand, if the charges were maliciously made, and be equally destitute of truth and of reasonable and probable cause, the plaintiff will be entitled to your verdict, for such damages as you may think the defendant ought to be ainerced in, for an injury of this kind.
    Idle and vague rumours will not constitute probable cause. To constitute probable cause, there must exist such grounds for believing the facts to be true, as are calculated to impress themselves on, and find credence in, a candid mind, disposed to inquire and to act justly. This is a subject for the consideration of a jury. It is for them to determine, whether probable cause existed or not.
    In respect to the charges of verbal slander, contained in the first and second counts of the declaration, it is proper to inquire how far they have been established by the evidence.. If the defendant has wantonly and maliciously promulgated the contents of this deposition, to vilify and traduce the character of the plaintiff, he can no otherwise be justified than by proving the truth of them. In such case the falsehood alone would be evidence of malice. As to communicating the contents to Mr. Cochran, if it were with the view to have'it put into form or to have it fairly transcribed, I should not incline to consider it to be a publication. But I can see no good reasons for communicating the contents to Mr. Steele. Mr. Steele seems not to have considered it his official duty to read it; and I am of opinion, he thought correctly.' It was sufficient for him to know from the party making it, that he was acquainted with the contents. Had he, however, thought otherwise, and insisted on reading it, I should hold this to be no publication by the defendant. As a person is not punishable for perjury in making a voluntary affidavit, the propriety of taking them, by justices, has properly been questioned.
    To consider the defendant liable in. respect to the verbal communication of the words, it ought to appear that it was unnecessarily and wantonly done.
    
      The jury found a verdict for the plaintiff.
    * Foster, for the plaintiff in error,
    insisted, that the’ erred in stating, that want of probable cause was evidence of malice. Here the words were excused by the occasion, unless there was positive evidence of express malice. It is not the duty of the defendant to prove the existence of probable cause, but of the plaintiff to prove its absence. 1 Binn. 186. 3 Johns. 329. 1 Sound. 131. 2 Esp. N. P. 509,
    
      Wilkins and Baldwin, contra, were stopped by the Court.
   The opinion of the Court, (Tilghman C. J. being sick, and absent,) was delivered by

Gibson J.

It is undoubted, that the occasion of the affidavit, which constituted .one ground of the action, so far excused the úse of the defamatory words, that malice would not be implied from the use of those words alone; and hence it was necessary, that actual malice should be proved. The question is, will any thing short of direct and positive proof . of express malice be sufficient ? As to that, I cannot doubt. In an action for a malicious prosecution, which is in many respects analogous to the present, and in which malice and the want of probable cause must both concur, the. latter may be left to the jury as evidence of the formér. Then, why not . here, where it does not of itself constitute a distinct-and substantive ground of the action, but can have weight only as evidence of actual malice ? For I take it, that though probable cause should even have existed, the plaintiff might, nevertheless, have maintained the suit, if he could have proved that the defendant was not deceived as to the true state of the case, but acted throughout against his better judgment, and from motives of wilful malice. Where the charge is proved to be false, the defendant can justify himself only by shewing, that he actéd altogether from mistake, and with the most perfect good faith. It is carrying the protection of persons in the situation of the defendant.bejlow, far enough, to say they shall not be answerable for the consequences of mistake, if they have dealt honestly; and that the use of .words of accusation, from which alone the law would otherwise infer malice, shall, on the ground of public policy, not be considered as importing it. Here, want of probable cause was not, as the counsel alleges, put to the jury as a circumstance from which the law would at all events imply malice; but as one from which its existence might, or might not, be inferred by the jury. If, then, absence of probable cause be evidence of actual malice, though not a circumstance' from which the law will infer it, it is difficult to discover an error in this part of the charge, But .it is said, that although express malice. may be established by presumptive proof, yet that the defendant, raised a question, whether he was bound to shew the existence of probable cause, or whether the plaintiff was' bound in the first instance to shew its absence, as an original part of his' case. That was a question of easy solution. If, from the. plaintiff’s own shewing, it appear the words were used in a communication to the executive, (and in every case like the present, it must necessarily so appear,) he will fail, unless he superadd proof pf express malice,, whether it be want of probable cause, or any other circumstance ; for the implication of malice that would otherwise result from the use of words actionable 'in themselves, will be rebutted by the peculiar nature of the occasion. In this respect, such a case is ■ analogous to that of a master, who, having heed applied to for the character pf a servant, is not bound in an action of slander, to prove the truth of the cha-, racter given; but it lies on the -servant to prove its falsehood, and also express malice. This question, as to the onus pr.obandi, can be material,, only where the state of the fact, as to express malice, is doubtful: in which case the verdict ought perhaps to be against the party whose business it is to make it out to the satisfaction of the jury. -But here, it seems pretty clear, the Court instructed the jury, that the proof lay on the plaintiff. The direction was,.that the defendant would not be culpable^ unless the existence of malice, together wish the .falsehood of the charge, were satisfactorily established. That could be done only by proof of the fact, and therefore, every idea of its negatively arising from the absence of proof to the contrary, was necessarily excluded from the mind of the jury; for all facts necessary to render the defendant liable, were to be established by some one, •and certainly not by the defendant himself. The plaintiff relied on the absence of probable cause,' to prove malice; and the jury must therefore have understood the Courts, that the proof of the fact from which the malice wás to be derived, if at all, necessarily lay on the plaintiff. The judgment must be affirmed;

Judgment affirmed.  