
    Vanderbilt v. Mathis.
    To maintain an action for malicious prosecution, three facts, if controverted, must be established:
    1. That such prosecution was determined in favor of the plaintiff, before the action was commenced.
    2. The want of probable cause.
    3. Malice.
    The determination, in favor of the plaintiff, of the prosecution alleged to be malicious, is not, per se, primé facie evidence of the want of probable cause.
    The proof of malice is as essential as that of the want of probable cause. But the latter may be shown, without the existence of malice being either a consequence or concomitant. Malice, in fact, must be proved, either by direct evidence, or by circumstances connected with, or growing out of, the proof of a want of probable cause, justifying th"e inference of it, as a &et thus proved.
    There is no theoretical malice, which can satisfy the rule requiring proof of malice, and which can coexist with the established fact, that the prosecution was instituted in an honest belief of the plaintiff’s guilt, and with no other motives than to bring a supposed offender to justice.
    The question of actual malice may be a turning point in an action of this nature.
    In such a case, it must be determined by the jury, as a question of fact, and such evidence of its existence must be given as will justify a jury in finding it, as a fact proved.
    (Before Oakley, Ch. J., Dder and Bosworth, 3.3.)
    
    February, 1856.
    This action came before the court, on questions of law arising at the trial, and which were there ordered to be heard in the first instance by the General Term.
    
      It was tried before Mr. Justice Slosson, and a jury, in June, 1855.
    The action was brought to recover damages, on the allegations that the defendant, on the 27th of November, 1854, before R. E. Stilwell, a commissioner of the United States for the southern district of New York, falsely, maliciously, and without any reasonable or probable cause, complained and charged that the plaintiff had theretofore committed, perjury, by falsely and corruptly swearing that he was the true and only owner of a certain steamship, called the Adelaide; that, upon such complaint and charge, the plaintiff was arrested and brought before the said commissioner, and, afterwards, upon an examination of the matter, was fully acquitted and discharged.
    The questions decided by the General Term, relate solely to exceptions taken to the charge of the Judge, and to his refusal to charge as requested.
    Hence, as the charge is of considerable length, only those portions of it are stated which show the matters excepted to. The Judge, among other things, charged as follows:—
    “ That, in order to enable Vanderbilt to maintain his action, he must prove;
    “1. The prosecution by the defendant, the plaintiff’s arrest, and that the prosecution is ended, and the plaintiff discharged therefrom.
    “2. That the prosecution was undertaken by the defendant without probable cause.
    “ 3. That the defendant acted maliciously in the prosecution.”
    ********
    “ If the facts show that there was not probable cause for the defendant’s prosecution, then malice may be inferred.
    “ The evidence is, that the plaintiff was discharged before the magistrate. This shows prima facie, that there was no probable cause for the arrest, and shifts the burden of proof from the plaintiff to the defendant, who is bound to show, affirmatively, that there was probable cause. The actual state of the facts, apart from the defendant’s knowledge and belief of them, is not the test of probable cause. You must be satisfied that the defendant knew of the existence of the facts on which he relies to show probable cause.
    
      “His charge was, that the plaintiff made a false oath, in swearing that he was the owner of the vessel, and the "burden is with him to show that there was probable cause for this charge, and he can show it only by showing his knowledge of facts and circumstances, which would justify a reasonable and cautious or prudent -man in believing that the plaintiff' was not the owner.”
    “ On this question of malice in fact, you will also take into consideration the defendant’s conduct on the arrest of the plaintiff, whether or not there was unnecessary zeal and activity or eagerness on his part, all which has a bearing on the question of motive.
    “ This question of malice in fact, supposing that probable cause did not exist, is material only as affecting the question of damages; and on the question of damages, the plaintiff, if entitled to recover at all, is entitled to indemnity for the deprivation of his liberty and for the injury to his reputation, feelings and person, and also for the expenses to which he has been necessarily subjected.”
    The counsel for the defendant said he excepted to that part of the charge in which it was said, that the discharge by the commissioner was prima facie evidence of want of probable cause.
    The defendant’s counsel also asked the court to charge, “ That the discharge of Vanderbilt was not prima facie evidence of want of probable cause.” The court refused to charge, except as it had before charged, and the defendant’s counsel excepted to such refusal.
    The defendant’s counsel then asked the court to charge, “ That if the jury believe from all the evidence in this case, that the defendant acted in good faith in making the complaint, this action cannot be maintained.” The court refused to charge, except as it had before charged, and the defendant’s counsel excepted to such refusal.
    The defendant’s counsel then asked the court to charge, “ That the jury cannot find a verdict for the plaintiff unless he has proved that there was no probable cause for the complaint, and not even then, unless they believe from the evidence that in making the complaint the defendant acted from malicious motives.” The court refused to charge, except as it had before charged, and -the defendant’s counsel excepted to such refusal.
    
      And the jury afterwards returned a verdict for §1,000.
    And the court thereupon ordered, that the defendant have twenty days to make and serve a case, with leave to turn the same into a bill of exceptions or special verdict, and that the same be heard, in the first instance, at the General Term; and that, in the mean time, all proceedings on the part of the plaintiff be stayed.
    
      L. B. Shephard, for plaintiff.
    
      J. T. Williams, for defendant.
   By the Court. Bosworth, J.

To maintain an action for malicious prosecution, three facts, if controverted, must be established :—

1. That the prosecution is at an end, and was determined in favor of the plaintiff

2. The want of probable cause.

3. Malice.

In such an action, it is necessary to give some evidence of the want of probable cause. It is insufficient to prove a mere acquittal ; that, alone, is not prima facie evidence of the want of probable cause. (Gorton v. De Angelis, 6 Wend. 418.)

It is equally essential, that the former prosecution should appear to have been maliciously instituted. Malice maybe inferred from , the want of probable cause, but such an inference is one which i a jury is not required to make, at all events, merely because they may find the absence of probable cause.

Unless the evidence, in relation to the circumstances under which the prosecution was ended, and that given to establish the want of probable cause, justify the inference of malice, other evidence, in support of it, must be given.

Evidence as to the conduct of the defendant, in the course of the transaction, his declarations on the subject, and any forwardness and activity in exposing the plaintiff by a publication, are properly admitted to prove malice. Such evidence must be given as will justify a jury in finding the existence of malice.

The rule is uniformly stated, that, to maintain an action, for a former prosecution, it must be shown to have been without probable cause, and malicious. (Vanduzer v. Linderman, 10 J. R. 110; Murray v. Long, 1 Wend. 140, 2d Stark. Ev. 494; Willans v. Taylor, 6 Bing. 173.)

The Judge, at the trial, charged, that the fact, that the plaintiff was discharged before the magistrate, showed, prima facie, that there was no probable cause for the arrest, and shifted the burden of proof from the plaintiff to the defendant, who was bound to show, affirmatively, that there was probable cause.

He was requested to charge, “that the discharge of Vanderbilt was not prima facie evidence of the want of probable cause.” This he refused to do. To this refusal to charge, and to the charge as made, the defendant excepted.

He also charged, “that, if probable cause is made out, the question of malice becomes immaterial, except as bearing on the question of damages.”

“ This question of malice, in fact, supposing that probable cause did not exist, is material only as affecting the question of damages.”

He was requested to charge, “ that the jury could not find a verdict for the plaintiff, unless he has proved that there was no probable cause for the complaint, and not even then, unless they believe, from the evidence, that, in making the complaint, the defendant acted from malicious motives.” This the Judge declined to do, and to his refusal to so charge the defendant excepted.

Although the evidence which establishes the want of probable cause maybe, and generally is, such as to justify the inference of malice, yet we understand the rule to be, that when it is a just and proper linference from all the facts and circumstances of the case, upon all /the evidence given in the cause, “that the defendant was not actuated /by any improper motives, but only from an honest desire to bring a supposed offender to justice, the action will not lie, because such ’'facts and circumstances disprove that which is of the essence of the action, viz., the malice of the defendant in pressing the charge.”

In Bulkley v. Smith, (2 Duer, 271,) the court stated the rule to be, “ that, in order to maintain a suit for a malicious prosecution, the plaintiff is bound to prove the entire want of a probable cause for the accusation, and the actual malice of the defendant in making it. Malice is a question of fact, which, when the case turns upon it, must be decided by the jury.”

Story, J., in Wiggin v. Coffin, instructed the jury that two things must concur, to entitle a plaintiff to recover in such an action: “ The first is, the want of probable cause for the prosecution; the ' second is, malice in the defendant in carrying on the prosecution. If either ground fail, there is an end of the suit.”

In Vanduzer v. Linderman, (10 J. R. 110,) the court said: “ No action lies, merely for bringing a suit against a person, without sufficient ground. To maintain a suit for a former prosecution, it must appear to have been without cause, and malicious.”

If the charge must be understood to mean, that if the want of probable cause was established, the plaintiff was entitled to recover, although the jury should believe, from the whole evidence, that, in mating the complaint, the defendant did not act from malicious motives, then we deem it to be erroneous. This construction is the only one, of which the language of the instruction appears to be susceptible; for the Judge, in charging the jury, stated that the “ question of malice in fact, supposing that probable cause did not exist, is material only as affecting the question of damages.”

Malice in fact, is that kind of malice which is to be proved.) When malice may be, and is inferred, from the want of probable) cause, it is actual malice which is thus proved. t

There is no theoretical malice which can satisfy this rule, and-which can coexist with the established fact, that the prosecution was instituted in an honest belief of the plaintiff’s guilt, and with no other motives than to bring a supposed offender to justice.

The question of malice may be a turning-point of the controversy, in an action of this nature. \

( The want of probable cause may be shown, and yet, upon the; fyhole evidence, in any given case, it may be a fair question for j ¡the determination of a jury, whether the defendant was actuated - by malice. If the whole evidence is such, that a jury cannot j properly doubt the honesty and purity of the motive which in- j duced the former prosecution, and if they fully believe that it; was instituted from good motives, and in the sincere conviction j that the plaintiff was guilty of the offence charged, and without,, malice, the defendant would be entitled to a verdict.

The charge made, and which was excepted to, must be deemed to have been made, to give the jury a rule of action, in disposing of the case upon the whole evidence. We think it was not only calculated to mislead, but was erroneous.

A new trial must be granted, with costs to abide the event.  