
    FREEBORN G. WELLS vs. WILLIAM B. PARSONS.
    In an action for a malicious prosecution, the plaintiff is bound to prove that It was at the instigation of the defendant; that it terminated in his favor; and was without probable cause, and malicious.
    It is for the court to decide what amounts to probable cause.
    This was an action on the case for a malicious prosecution in causing the plaintiff to be indicted for a felony. Pleas, not guilty and the act of limitation.
    The plaintiff was indicted in the Court of General Sessions, together with one Isaac W. Truitt, for the robbery of defendant’s house, and was acquitted of the charge. ' The defendant was a witness before the grand jury on the finding the bill of indictment, and also before the traverse jury; made the complaint to the committing magistrate, and furnished names of witnesses to the Attorney-general.
    The proof connected the plaintiff with Truitt during the night of the robbery, and presented circumstances of strong suspicion against Truitt; amongst others, of the result of a search of his person when ie was arrested. This was offered in evidence, and admitted by the 30urt; as tending to show probable cause for the accusation.
    
      Mr. Houston, for the defendant,
    moved a nonsuit on the facts.
    
      Houston. — The existence of probable or reasonable ground for the jrosecution is a matter for the consideration and decision of the :ourt; though the facts which constitute this reasonable cause, if con-roverted by contradictory evidence, must be found by a jury. But vhere a fact which shows probable cause is proved by an unim->eached and uncontradicted witness, the court will not leave it to he jury, but will consider the fact proved and nonsuit the plaintiff. i2 Leigh’s JV. P. 1292-3; 6 Barn & Cress. 225; 13 Eng. C. L. Rep. 52, Davis vs. Hardy.) In this case it is proved that a large sum of noney was found on Truitt, some of which was identified by Par-ons as the money of which he was robbed. The witness who proves |his is unimpeached and uncontradicted. It is also proved without ontroversy, that Wells was with Truitt on the road all the night of e robbery; near the scene of the robbery; on horseback; and that o horses were tied in the swamp near where the chest from which e money was taken, was found. This is abundant evidence not nly of probable cause but of violent suspicion, that Wells was concerned with Truitt in the robbery. The proof is enough to convict Truitt; and it is not disputed that Truitt and Wells were together all that night.
    
      Ridgely and M‘Fee opposed the motion. — The court ought to sub mit the weight of evidence to the jury, unless the facts are agreed on. ( 2 Stark. Ev. 912.) There is testimony showing that Wells was not within two miles of Parsons’ house that night. This produces a conflict of testimony which the jury ought to decide upon. (1 T. Rep. 529, Johnson vs. Sutton.)
    
    
      Houston. — So far as the evidence is conflicting, I do not call on the court to decide any thing. There are certain facts credible in themselves, plainly proved by an unimpeached witness; and which in themselves amount to probable cause of indictment. I call on the court to do what is clearly its province, to decide on the proof of probable cause by evidence uncontradicted, without turning aside to the jury. The question of probable cause I admit is a mixed question of law and fact; if the facts are controverted they are to be found by a jury, and the coui’t applies the law to them; but if the facts are uncontroverted by evidence, the court will take them as proved and nonsuit the plaintiff at once.
   By the Court.

Booth, Chief Justice:

The court are divided in opinion. A majority of us are for refusing the nonsuit, considering the evidence as in some respect conflicting and proper to be submitted to the consideration'of the jury. The matter of probable cause for the prosecution is a mixed question of law and fact; the facts to be found by the jury, and the court to decide whether they amount to probable cause. The case cited from 13 Com. Law Rep. seems to have involved bu a single fact which was uncontroverted, but the evidence in this casi has taken a wider range, and involves many facts. We think it bet' ter to let the case take the usual course before the jury, whom w shall instruct as to the existence of probable cause for the proseen tion.

The case went to the jury, and chief justice Booth charged as fob lows:—

Booth, Chief Justice. — The plaintiff is bound to prove — 1st. Tba there was a prosecution. 2d. That it terminated in favor of tb plaintiff. 3d. That the defendant was the prosecutor. 4th. That hi was actuated by malice. 5th. That there was a want of probabb cause. 6th. The damages that plaintiff has sustained.

1st and 2d. It is admitted that a prosecution by indictment was instituted; and that it terminated in the acquittal of the defendant. It remains then to inquire whether the defendant was the prosecutor.

2d. The indorsement of the defendant’s name on the bill of indictment, as a witness, is no evidence that he was the prosecutor. If the defendant employed an attorney or counsel to conduct the prosecution, or was active in forwarding or carrying on the prosecution; such as giving instructions concerning it, paying expenses, or procuring the attendance of witnesses, it is sufficient proof of the defendant’s being the prosecutor.

4tb. There are two descriptions of malice. Malice in fact; or in other words, express malice; and malice implied by law. Express malice means ill will against a person, and is indicated by the disposition or temper of mind with which the party did a particular act; as where he did it with the view to injure a particular individual ¡generally, or in some specific manner, or that he acted from personal [animosity, or an old grudge. It may be established by a fair inference from the facts and circumstances proved in the particular case,

j 5th. But however malicious may have been the motives of the defendant towards the plaintiff, he is protected by the law in having [prosecuted the plaintiff, if he had probable cause for so doing. This Irule of law which protects a party for instituting or conducting a «criminal charge, where there is probable cause for it, proceeds upon principles of policy, convenience and justice. And hence it is, that In an action for a malicious prosecution, the plaintiff is bound to give Evidence of a negative; that is, he must give some evidence showing gr want of probable cause. If it be shown that there was a want of liny probable cause, the law implies malice from that circumstance.

| The whole case rests then, upon the single question, whether the llefendant had probable cause for the prosecution against the plain-liff? Whether from all the circumstances of the case, the present llefendant had a reasonable ground of suspicion against the plaintiff? Proof of express malice is not sufficient evidence of want of proba-lle cause; nor is the acquittal of the defendant upon the trial of the Indictment.

I Had the defendant a reasonable ground to suspect the plaintiff? ¡The jury are to ascertain and decide the facts in this'case. It is for She court to decide whether those facts amount to probable cause; whether they afford a reasonable ground of suspicion. Testimony las been offered to prove that William B. Parsons, on Saturday evening, March 13, 1841, was at Laurel, attending a quarterly meeting. That Wells and Truitt were also at Laurel, the afternoon or evening of that day. That on such occasions of religious worship, Parsons always remained during the whole night away from his own house. During the whole of that night Wells and Truitt were together; they were traced from Laurel to Creighton Wingate’s house. They left Wingate’s, each on horseback, at half past two o’clock, A. M., and arrived at Well’s house about day break on Sunday morning. Some time on Saturday night, the house of Parsons was broken open, and a robbery committed. The tracks of two horses were found near the house; tracks of a man’s footsteps, said by some witnesses to resemble Truitt’s, were found leading from the house, and a chest at some distance from the house was found broken open, aad the contents taken out. This chest contained money belonging to Parsons, among which was a peculiar piece of coin not common in our currency, which was found in Truitt’s possession, and identified by Parsons as his money, and which he described, according to Kinney’s testimony, before he saw it. Truitt offered to tell J. F. Kinney the officer who arrested him, to use Kinney’s language, “all about it;’ and Kinney advised him not to tell. If these facts were proved tc the satisfaction of the jury, the court were of opinion that thej amounted to probable cause for the prosecution.

M‘Fee and Ridgely, for plaintiff.

Houston, for defendant.

Verdict for defendant.  