
    Besson against Southard, impleaded with Barnes.
    In an áctión.for a malicious prosecution, the plaintiff .must allege and prove malice, and a want of probable cause for the former suit.
    The .want of probable' Cause must be' shown" as an independent fact, and can- . not be inferred from any degree of malice.
    Where the facts are doubtful, or where they depend upon conflicting testimony, the question of probable cause is a mixed one, of law and fact, to be determined by the jury under the instructions of the court.
    If there-is no conflict in the evidence, and no¡ dispute about the facts, the judge will be justified in determining the legal effect of such facts, and directing a verdict accordingly.
    This was an action for a malicious prosecution. The complaint alleged: that the defendant advised, procured and caused to be issued out of the Superior Court, in and for the city and county of New-York, a capias ad respondendum, in the name of William D. -Benson against the plaintiff, Besson, in a plea of trespass on the case, for divers alleged false, deceitful and -fraudulent misrepresentations made-by Besson to Benson on the sale of a certain lease and certain goods-and chattels, and procured an order to be made, and indorsed thereon by one of the justices of that court, to . hold Besson to bail in the sum of $500, upon his arrest thereon; that- afterwards, Besson, by virtue of said capias and. order, was arrested by the sheriff of the city and county of New-York, and imprisoned in the custody of said sheriff for the. space of several hours, and until he procured satisfactory bail in said sum, and thereby was necessarily put. to the expense of $120 in procuring his discharge and in the defence of said suit. It is then averred that neither - the defendants nor Benson had any reasonable cause for believing that he had any right of action against Besson, or that he had made any false, deceitful or fraudulent misrepresentation to Benson on the sale of said lease and goods and chattels; that said action, afterwards, was voluntarily abandoned by Benson and the defendants, and judgment as in case of a nonsuit had been entered therein, and the suit thus term mated.
    The defendants severally answered the complaint. Barnes denied every material allegation in the complaint, and alleged that Southard acted in the premises as the attorney of Benson, and that he had a good cause of action against Besson, and had probable cause for commencing the. suit and procuring the order for bail. Southard answered, that he, as the attorney of Benson, and not otherwise, issued the capias and procured the order to: hold to bail, and in no other manner caused the arrest or imprisonment of Besson; that he acted upon the retainer of Benson, and at his request, and upon information which he believed to be true; that Benson had a good cause of action, as set forth in the capias, and good cause to hold Besson to bail thereon; that the facts upon which the order was obtained were detailed in an affidavit made by Benson, which was presented to the justice, and the order made thereon, and not at the instance of Southard, individually. He denied all malice and all conspiracy charged; and set up that he had reasonable and probable cause for issuing the capias and procuring the order, and that he believed that Benson had a good cause of action against Besson, and acted in good faith and without malice in the commencement of the suit and procuring the order.
    On the trial, before Mr. Justice Vanderpoel, of the superior court of New-York, it appeared in evidence substantially that the defendant Barnes, on the 1st of May, 1844, executed a lease to Besson of certain premises, being the basement of No. 410 Broadway, for the term of five years, at the yearly rent of $750, payable quarterly; that Besson also executed the lease, covenanting to pay the rent and providing for a reentry on breach of any of the covenants contained in it on his part; that Besson occupied the premises under the lease until about the 17th day of May, 1845; that the rent for the year ending on the first of May had been regularly paid, excepting for the last quarter, for which Besson had given Barnes his note, payable in "sixty days, and bearing date the first,of May, 1845. On the 17th day of May, 1845, Besson, with the consent of Barnes, sold and assigned his lease to Benson, together with several articles of personal property in and upon the demised premises, for the sum of $725, which he paid. Besson executed a bill of sale of the property to Benson, setting forth that the property was not incumbered, and that there' were no arrears of rent due upon the lease. In July, 1845, Barnes, by Southard, as his attorney, distrained on all the property of Benson on the demised premises for the quarter’s rent payable on the previous first of May. This property was sold and bi3 in by Benson, by arrangement with Barnes, for which he gave Barnes his note.
    In September, 1845, Barnes, and Southard as his attorney, commenced a suit in the name of Benson against Besson for falsely representing on the sale of the lease that the premises were free from any arrears of rent, in which suit Besson was arrested and held to bail as set forth in the complaint. Issue was joined therein, and in June, 1848, judgment as in case of a nonsuit was obtained. Preparatory to commencing the suit, with a view to procure an order to hold to bail, Benson made an affidavit showing a cause of action, as alleged, against Besson. It also appeared that there was an understanding or agreement between Barnes and Besson that his goods should be distrained and sold to satisfy the rent in arrear, and that Barnes should wait on him until Benson could collect the same from Besson by a suit against him, to be brought by Barnes in t.he name of Benson, by Southard as his attorney; and that efforts were made, after the sale on the distress warrant and before the suit was commenced, to induce Besson to pay.' the amount due to Barnes, but without success.
    
      Upon this evidence the court directed a verdict for the defendant Southard, from the judgment entered upon which the plaintiff appealed. -
    
      L. R. Marsh, for the appellant, insisted:
    First. That probable cause was a question for the jury; citing 7 Cow., 715; 1 Wend., 345; 2 id., 424; 14 id., 193; 2 Greenl. Ev., § 454; Second. That the want of probable cause was sufficiently made out by the"voluntary abandonment of the suit complained of (Burhans v. Sanford, 19 Wend., 417; Nicholson v. Coghill, 6 Dowl. & Ry., 12;. S. C., 4 Barn. & Cress., 21); and that it was almost made out by the judgment of nonsuit which was obtained. (Roberts v. Bayles, 1 Sandf. S. C. R., 47; 19 Wend., 418; Webb v. Hill, 3 Carr. & Payne, 485; S. C., 1 Mood. & Malk., 253; Sinclair v. Eldred, 4 Taunt., 7; Purcell v. Macnamara, 9 East, 361.)
    
      H. P. Hastings for the respondent.
   Jewett, J.,

delivered the opinion of the court.

To maintain this action it was incumbent on the plaintiff to prove that he had been sued by the defendant, as alleged, maliciously and without probable cause; for if there was probable cause for such suit, although it was maliciously commenced, the action could not be sustained. Want of probable cause and malice must concur. The question of malice in this action is for the jury. The want of probable cause is independent of malicious motive, and cannot be inferred, as a necessary consequence, from any degree of malice which may be shown.

In the case of a private suit, probable cause may consist pi such facts and circumstances as lead to the inference ■that the party was actuated by an honest and reasonable ^conviction of the justice of the suit. This question is composed of law and fact; it being the province of the jury to detenmne-whether.the circumstances alleged are true or.not, and of the court to determine whether they amount to probable cause. When the matter of fact and matter of law, of which the probable cause consists, are so intimately blended together. as not tobe easily susceptible of separate decision, the judge is warranted in leaving th.e question to the jury; instructing them in the principles and rules of law by Which they are to be governed in finding a verdict, and those instructions the jury are bound to follow. Whether the circumstances alleged to show probable cause, or the contrary, are true and existed, is a matter of fact; but whether, supposing them true, they amount to probable cause, is a question of law.

What is meant by the expression, that probable cause is a mixed question of law and fact, and when it is proper to submit it to the jury to pass upon, is correctly explained in Masten v. Deyo (2 Wend., 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 upon, the question of probable cause should go to the jury, with proper instructions as to the law. But where there is no dispute about facts, it is the duty of the court, on the trial, to apply the law to them.

In this case there was no dispute about the material facts, no conflict in the evidence, no impeachment of witnesses. The judge was right, therefore, in assuming to himself to pronounce upon the legal effect of the evidence, and I think the conclusion to which he came was in accordance with the evidence. It clearly appeared that there was probable cause for bringing the suit by Benson against the plaintiff. (Hall v. Suydam, 6 Barb., 83.)

The judgment should be affirmed.

Judgment affirmed.  