
    Bulkeley v. Smith and another.
    That the plaintiff in an action for a tort, when the jury have improperly severed the damages, may enter his judgment, against all the defendants for the largest damages found against any one of them, is an inequitable doctrine which the Court," unless constrained by the authorities, would refuse to follow.
    Whether the authorities in support of the doctrine are conclusive the Court declined to consider, being satisfied upon other grounds that the judgment appealed from was erroneous.
    To maintain an action for a malicious prosecution, the plaintiff is bound to prove the entire want of a prohable cause for the accusation, and the actual malice of the defendant in preferring it—that is, malice in fact as distinguished from malice in law.
    Malice, therefore, in all eases, when the cause turns upon its proof, is a question of fact to be decided by the jury.
    But probable cause is, in all cases, a question of law, in relation to which the judge who tries the cause, is bound to express a positive opinion.
    It is no more a mixed question of law and fact than every other question of law, which a judge in the course of a trial is required to determine.
    If the judge who tries the cause is of opinion that the facts admitted or clearly established, are not sufficient to prove a want of probable cause, he must either nonsuit the plaintiff, or direct the jury to find a verdict for the defendant.
    (Before Duer, Paine, and Emmet, J.J.)
    May 10, 11, 12;
    July 2, 1853.
    But if the facts, upon which in his judgment the question depends, upon the evidence are doubtful, he must instruct the jury, that if they shall be found by them in a certain manner, they do or do not amount to a want of probable cause.
    If, instead of such a direction, he leaves it to the jury to determine, not. only whether the facts alleged by the plaintiff are true, but whether, if true, they prove a want of probable cause, he commits a fatal error.
    The judge, in the case under hearing, instructed the jury to consider and determine whether the facts and circumstances known to the defendants were reasonable grounds for their believing that the charge which they had made against the plaintiff was true.
    
      Seld, that this instruction was erroneous, as necessarily involving a submission to the jury of the question of probable cause, the existence of reasonable grounds for believing the charge preferred to be true and of a probable cause for making it, being only different forms of expressing the same truth.
    When the existence of facts constituting a probable cause is admitted or established, the presumption of law is that the defendant entertained and acted upon the belief which the facts thus known to him justified him in holding.
    
      Sence, unless this presumption is repelled by proof on the part of the plaintiff, the question of the actual belief of the defendant ought not to be submitted to the jury.
    The charge against the plaintiff was that upon the trial of a cause in which he was examined as a witness, and was a material witness—he had sworn falsely that he. had no interest in the event of the suit. If such was his testimony, it was clearly shown that there was probable cause for believing it to be false; but the main controversy upon the trial was whether he had in fact sworn as the defendants in making the charge had alleged.
    
      Seld, that in order to justify the defendants, it was not necessary for them to prove that the plaintiff had sworn in terms that he had no interest in the event of the suit, but that their defence was established, if it appeared that he had sworn in substance, although not in words, that he had no interest that could disqualify him as a witness.
    
      Seld further, that it was proved by the plaintiff’s own witnesses that such was the substance and necessary result of his testimony.
    
      Seld, that the existence of probable cause was therefore affirmatively shown, and consequently that the plaintiff ought to have been nonsuited, or the jury have been directed to find a verdict for the defendants.
    
      Seld further, that had the true and only issue been whether the language of the plaintiff, when examined as a witness, was exactly such as the defendants had represented, so great was the preponderance of the testimony to establish the fact, that upon that ground alone, a new trial must have been granted.
    Judgment reversed, and new trial granted; costs to abide the event.
    Appeal by the defendants, Smith & Brush, from a judgment and order at special term, denying to them a new trial upon exceptions taken on the trial, and also upon the ground that the verdict was against evidence.
    The action is for a malicious prosecution, and in its original form was not only against the present defendants, Smith & Brush, but also against Eugene Keteltas & Wm. A. Keteltas, and was first tried before Mr. Justice Vanderpoel and a jury in December, 1849, when the jury found a verdict against Smith, Brush & E. Keteltas for $3,750, and under'the direction of the judge acquitted Wm. A. Keteltas. A motion for a new trial was then made and denied .(Bulkeley v. Keteltas, 4 Sand. S. C. R. 450). Upon an appeal, however, to the Court of Appeals, the judgment of this court was reversed, upon the distinct ground that the judge upon the trial, contrary to the request of the counsel for the defendants, had improperly submitted to the jury the question whether the plaintiff had shown a want of probable cause for the prosecution,'and with a clear intimation of opinion, that a probable cause had in fact been established. The case is now reported (2 Selden, 384).
    In consequence of this reversal, the cause was again tried before the Chief Justice and a jury in October, 1852, when by the direction of the judge the defendant, Keteltas, was acquitted.
    The following are the material facts as given in evidence upon this trial:
    Early in the month of August, 1848, the defendant, C. B. Smith, accompanied by the defendant Brush, upon a complaint in writing, applied to J. Lothrop, Esq., one of the police justices of the city, for a warrant against the plaintiff upon a charge of perjury, and exhibited in support of the charge his own and Brush’s affidavits, also the affidavits of Wm. H. Bogardus and Wm. A. Keteltas. All these affidavits concurred in stating that on a recent trial of a cause in the Common Pleas, in which one Charles Bradley was plaintiff and Eugene Keteltas was defendant, the plaintiff Bulkeley, who was the attorney for Bradley, was sworn and examined as a witness, and testified that he had informed Bradley at the commencement of the suit that he would not charge him anything for his services, and that he did not intend to charge him even for attorney’s fees; that.he was not to receive any compensation for his services, and that he had no interest in the event of the suit. The trial in the Common Pleas was on the 7th of June, 1848; the verdict was rendered on the 8th—the verdict was in favor of Bradley for $100—Smith and Brush both swore that the testimony of the plaintiff was so material that without it Bradley would not, in their opinion, have obtained a verdict. Smith also swore that Bulkeley had testified on the trial, that Bradley was then absent and had been so for several months, and that he had received no letters from him.
    To prove that the testimony so given was false, Smith placed in the hands of the magistrate the following papers, which were proved to be in the handwriting of the plaintiff.
    “ Sir—Take notice, that my costs and counsel fees in this case have not been paid me by my client, and you are required not to pay the amount of the judgment recovered by the plaintiff herein, or any part thereof, to the plaintiff, until such costs and fees are paid me; also that I am specially authorized by the plaintiff to receive the ain’t of the judgment and costs recovered by him in this suit, and that any payment of the same to, or settlement or compromise with any person but myself, in any matter relating to the suit, will be wholly void. “Yours, <&c.,
    “ L. E. Bulkeley.
    “ To Eugene Keteltas and his attorney,
    “H. Y., June 8th, 1848.”
    “Hr. Brush presented your proposal to compromise, my answer is that by sending me to-day $225 all further trouble in this matter can be saved, and satisfaction of judgment be given without expense of execution, &c.
    “ (Endorsed) < To C. B. Smith, Esq.’ ”
    “ Hr. Smith can save himself the. trouble of writing to Hr. Gumming as Hr. Bradley is not with him, and as I have an irrevocable power of attorney from Bradley to settle the suit and receive all monies that may be 'coming due from it. I give you this notice that you may fully understand that any money yon may pay on the judgment or verdict to, or any settlement you may make, in the case of Bradley v. Keteltas, with any person except me will not he considered any payment of said verdict, having had notice of my power of att’y, and I shall hold your client responsible for every dollar of said verdict not paid to me in person. _ June 9th, 1848.
    “Yours, &c., “L. E. Bulkelet.
    “ (Endorsed) To 0. B. Smith, Esq.”
    These affidavits and papers were produced, and read in evidence by the plaintiff; and the Chief Justice decided that they were evidence in favor of the defendants—the same as if the parties making the affidavits as witnesses in the cause had testified to the same facts.
    The plaintiff was brought before the magistrate upon a warrant, but, after a hearing of the parties by their counsel, and the lapse of some weeks, the complaint was finally dismissed. The defendant, Smith, then laid the same affidavits and papers before the District Attorney, who sent them to the Grand Jury as, in his opinion, establishing, pri/má, faeie, the charge of perjury. The Grand Jury found a bill against the plaintiff, charging him with perjury in having sworn falsely on the trial in the Common Pleas that he had no interest in the event of the suit. He was tried on this indictment before Mr. Recorder Scott, who, when the testimony on the part of the prosecution was closed, directed his acquittal, upon the ground that it had not been proved that he had any interest in the event of the suit, which disqualified him as a witness.
    The evidence upon the present trial as to the testimony actually given by the plaintiff on the trial in the Common Pleas, to some extent was contradictory. Three or four witnesses were examined in relation to it upon the part of the plaintiff, and ten or twelve on the part of the defendants. The substance of the testimony is stated in the opinion of the Court.
    Bradley, the plaintiff in the suit in the Common Pleas, who was examined on the part of the plaintiff, proved that he was absent when that action was tried; but that, after his return, on the 13th June, 1848, he had executed to the plaintiff an assignment of all his title and interest in the verdict and judgment; and that this was the only assignment he ever executed.
    When the testimony on the part of the defendants was closed, the counsel for the defendant moved for a dismissal of the complaint. The motion was denied, and the counsel excepted.
    The counsel for the defendants made various special requests as to the charge to be given to the jury; but these, as their nature sufficiently appears from the points argued on the appeal, are here omitted.
    The judge, in charging the jury, submitted to them on the whole evidence to find whether the defendant, Brush, was a party in instituting the prosecution against the plaintiff, instructing them that they were at liberty to find for one of the defendants and against the other, and to find separate damages against each.
    The judge further instructed the jury, that if they should find that the plaintiff, in the action in the Court of Common Pleas, swore that he had no interest in the event of that suit, or if the defendants had reasonable grounds for believing, and did believe that he so swore, then, upon the facts proved in the case, and not disputed, and which were known to the defendants, the law determines that a want of probable cause for instituting a prosecution against the plaintiff is not shown, and the defendants are entitled to the verdict.
    The judge further instructed the jury that proof of actual malice on the part of the defendants is not necessary, provided want of probable cause is established, for the jury have a right to infer malice from a want of probable cause; and, with this instruction, left the evidence in the case to the jury.
    The court declined to charge according to the requests of the parties otherwise than as above stated, and the defendants excepted to such refusal, and the court, with these instructions, left the case to the jury.
    The jury retired, and brought in a verdict for the plaintiff assessing the damages of $2,500 as against Smith, and $500 i against Brush.
    The following is the form of the judgment from which the appeal was taken.
    
      “ This cause being at issue, and having been, by order of "the Court of Appeals, sent down for a new trial, costs to abide the event, and a trial had, upon which the court directed the acquittal of Eugene Eeteltas, one of the defendants, and thereupon a verdict was found for the plaintiff for the sum. of twenty-five hundred dollars damages against the defendant, C. B. Smith, and for five hundred dollars damages against the defendant, James H. Brush.
    
      “ And whereas the said plaintiff elects to recover the said sum of $2,500 damages so found by the jury against both defendants, and doth hereby consent that a remittitur as to the $500 damages assessed by the jury against the defendant, James H. Brush, be entered in this action.”
    “ ífow, on a motion of Lucius E. Bulkeley, plaintiff in person, it is hereby ordered and adjudged that a remittitur be entered as to the said $500 damages, assessed against the defendant, James H. Brush, and that the plaintiff, Lucius E. Bulkeley, recover of the defendants, C. Bainbridge Smith and James H. Brush, the said sum of twenty-five hundred dollars damages by the jury aforesaid, assessed, with interest on said verdict from the time the said verdict was rendered, being fourteen 58-100 dollars, together with an allowance of one hundred dollars as by order of the court, pursuant to the statute, besides the sum of five hundred and thirty-nine dollars and ninety-seven cents costs; in all, the sum of three thousand one hundred and fifty-four dollars and fifty-five cents, and that plaintiff have executions against the said defendants therefor.
    “B. Gr. Campbell, Clerk.”
    
      C. B. Smith
    
    made and argued the following points on his own behalf, and that of his co-defendant.
    1. The plaintiff having entered judgment against both defendants for the larger sum, when the verdict of the jury was for that amount against one, only renders the judgment erroneous, and it should be reversed on that ground. (Salmon v. Smith, 1 Saund. R. 207, n. 2; Hill v. Goodchild, 5 Burr. 2790: Mitchell v. Millbank,. 6 T. R. 199; Brown v. Allen, 4 Esp. N. C. 158; Wakely v. Hart, 6 Bin. R. 316; Bostwick v. Lewis, 1 Day R. 34; Crawford v. Morris, 5 Grat. R. 90; Cro. El. 11 Co. 6a. 7a.; Carth. 19, Bull. N. P. 15; 1 Wil. 30; Cro. Car. 192.) 1. Whatever may have been the practice in former times where the jury have severed, to enter judgment against both for the greater damages, it has never been adopted in this State. (Livingston v. Bishop, 1 J. R. 289; Bohun v. Taylor, 6 Cow. R. 313; Holly v. Mix, 3 Wend. R. 350.) 2. Before the judgment was perfected, the plaintiff might have cured the verdict, by taking judgment de melioribus da/mnis against one, and entering a nolle proseqtii as to the other. (Id.) The judgment having been entered against the defendants jointly, it is entire, and from which they appeal; if it be erroneous as to either, it must be reversed as to both. (Sheldon v. Quinlen, 5 Hill R. 441; Harman v. Brotherson, 1 Den. R. 537; Van Bokkelin v. Ingersoll, 5 Wend. R. 341; Van Schoonhoven v. Comstock, 7 Den. R. 655; Bac. Abr. Error, M. I.)
    II. There was reasonable and probable cause for the prosecution. Probable cause is defined to be a reasonable ground of suspicion, supported by circumstances, sufficient to warrant a cautious man in the belief that the person is guilty of the offence charged, and probable cause in all cases is a question of law. (Johnstone v. Sutton, 1 T. R. 545; Skinner v. Gunter, 1 Saund. R. 228; Baldwin v. Weed, 17 Wend. R. 227; Swaim v. Stafford, 4 Wash. C. C. R. 79; Davis v. Hardy, 6 B. & C. R. 225.) 1. It seems conceded, that if the plaintiff did in fact testify in the H. Y. Common Pleas suit, “he was not interested in the event thereof,” or that the defendants believed he so testified, probable cause is established. 2. There were ten witnesses beside the defendants, who testified to the plaintiff having so sworn, and the court erred in submitting the question of belief to the jury. It is not what a prosecutor believed, but whether the facts and circumstances were sufficient to afford a ground for belief, and that is for the court to determine. ' (Turner v. Ambler, 10 Q. R. 252; Beale v. Robertson, 7 Iredell R. 284; Ewing v. Sandford, 21 Ala. 163; Foshay v. Ferguson, 2 Den. R. 619.) 3. If the fact of ten witnesses testifying to the actual commission of an offence, be not enough to hold there was probable cause for making the complaint, then it follows, that it requires as much proof, if not more, to suspect an offence has been committed, as it does to convict the prisoner of the crime itself.
    III. It was incumbent upon the plaintiff to establish a want of probable cause. This must be substantially and satisfactorily proved, and cannot be implied. The grounds of the action are, on the plaintiff’s side, innocence—on the defendants’, malice ; and how can it be said that the complaint was without probable cause, or how can he establish his innocence, when he can only escape from the crime itself, by asserting his own notices to be false '? (Johnstone v. Sutton, 1T. R. 544; M'Cormick v. Sissons, 7 Cow. R. 715; Burlinghame v. Burlinghame, 8 id. 141; Murray v. Long, 1 Wend. R. 142 (per Holt, C. J. Mod. 208); Wilmarth v. Mountford, 4 Wash. C. C. R. 79; Eager v. Dyott, 5 C. & P. R. 4.)
    IY. The court erred in charging the jury upon the question of malice. The jury were instructed that proof of actual malice was not necessary, provided want of probable cause was established ; that they had the right to infer malice from the want of probable cause. 1. True, the question of malice is for the jury, but to sustain the averment, the charge must be shown to have been wilfully false. (Cohen v. Morgan, 6 D. & R. 8.) 2. But the court did not, as requested, instruct the jury what constituted malice. It is not spite or enmity. (Id. 2 Greenleaf on Ev., p. 367; 3 Stepen, 2278; Mitchell v. Jenkins, 5 Barn. & Ad. 588; Ray v. Law, 1 Pet. C. C. R. 207.) From the want of probable cause, malice may be implied (1 T. R. 545); but not necessarily so (Wiggin v. Coffin, 3 Story R. 1; Bell v. Pearoy, 5 Iredell R. 83); and in leaving to the jury that question, under the instructions of the judge, it was substantially submitting to them the question of probable cause.
    
      James T. Brady
    
    argued the following points on the part of the plaintiff.
    I. There was not any reasonable or probable cause for the institution of any complaint against the plaintiff for perjury. If it were believed at any time, of which there is no evidence, after the complaint was dismissed by the police magistrate for want of proof, such belief must have been ended. 1. By persisting in sending to the grand jury, after the dismissal of the complaint, and prosecuting it in the sessions, the defendants made themselves responsible under any state of facts, unless they had some new evidence to support their second accusation. In this case' they had no new facts. (Farris v. Starke, 3 B. Monroe 6; Hall v. Hawkins, 5 Humpf. 359; Stone v. Stevens, 12 Conn. 231; Stone v. Crocker, 24 Pick. 87; Wells v. Noyes, 12 id. 324; Cabeness v. Martin, 3 Dev. 454.) 2. Even though it were assumed that the defendants understood tlie plaintiff to have testified that he had no interest in the cause, they bad no evidence that the statement was untrue, nor any facts upon which they could maintain it. 3. From their own papers and proofs, the only evidence they pretend to have of the plaintiff (if he had sworn that he was not interested) was not true, consisted of his unsworn declarations, and not of any facts showing such alleged falsehood. They were all lawyers, and knew that such declarations afforded no ground for a prosecution for perjury. (1 Greenl. Ev. § 258.) 4. The judge charged the jury, that even if defendants believed plaintiff swore ‘‘ that he had no interest,” they must find a verdict for them. In this, we say, the judge gave them more than the law warrants, for mere belief is not sufficient.
    II. The plaintiff had the right to remit, as to the lesser damages, and enter judgment against both defendants for the greater damages. (Johns v. Dodsworth, Cro. Car. 192; Halsey v. Woodruff, 9 Pick. R. 555; 7 Vin. Abr., p. 303.) 1, The plaintiff may, in such a case, by leave of the court, enter nol. pros, as to one defendant, and judgment for damages against the other. 2. The case in 3 Wend., 350, is one of the latter class. There it was doubtful whether the evidence against Clute, one of the defendants, was such as that he ought not to have been discharged ; and the plaintiff obtained leave of the court to enter nol. pros, as to him, and took judgment against Mix, the other defendant. 3. But neither in this case, nor in any other, is there anything incompatible with the right of the plaintiff, as laid down in Halsey v. Woodruff.
    
   By the Court. Duer, J.

Whether the judgmént, which, in this case, has been rendered against both the defendants for the heavy damages which were found by the jury only against one of them, is erroneous on its face, we shall not at this time attempt to determine. We own, that hitherto we have not been able to discern the equity or good sense of the doctrine, that the plaintiff in an action for a tort, when the jury have improperly severed the damages, may enter his judgment against all the defendants for the largest damages that are given; and, as at present advised, if the conflict of the authorities is such as to allow a liberty of choice, we should certainly refuse to follow it. (Vide 1 Duer S. C. R., pp. 643-704.) It is possible that the authorities in support of the doctrine may be as conclusive as they have been represented; but whether they are so or not we omit to inquire, since, admitting the fact, there are other grounds upon which we are satisfied that not only the judgment, hut the verdict upon which it was founded, must be set aside. In other words, that a new trial must be ordered.

In order to maintain a suit for a malicious prosecution, the plaintiff is bound to prove the entire want of a prohable cause for the accusation, and the actual malice of the -defendant in preferring it. Malice is a question of fact, which, when the cause turns upon it, must be decided by the jury, but probable cause is in all cases a question of law, which the court alone is competent to determine, and in relation to which the judge who tries the cause is bound to express a positive opinion. It is true, it is said, by many of the text writers, that probable cause is a mixed question of law and factand, misled by this statement, it not unfrequently happens that judges content themselves with defining a probable cause,-leaving the jury to decide whether the facts of the case correspond with the definition, which is, in effect, leaving the whole matter to their determination. It is evident, however, upon reflection, that the deceptive phrase, “ a mixed question of law and fact,” is either wholly unmeaning, or is intelligible and true only in a sense which renders it just as applicable to every question of law that a judge in the progress of a trial can be required to determine. Every rule of law depends for its application upon a given state of facts, and when the facts upon which it depends are controverted and doubtful, they must of necessity be ascertained by the verdict of the jury ; but whether the facts are admitted or disputed, it is equally the duty of the judge to state explicitly to the jury the rule of law arising upon them, by which their verdict ought to be controlled—the only difference being, that, in the first case, the direction to the jury is positive, in the second, hypothetical. Thus, in an action for a malicious prosecution, if the judge is of opinion that the facts admitted or clearly established are not sufficient to prove a want of probable cause, he must either nonsuit the plaintiff, or instruct the jury to find their verdict for the defendant; but if the facts upon which, in his judgment, the question depends are rendered doubtful by the evidence, he must instruct the jury that if the facts shall be found by them in a certain manner, they do or do not amount, as the case may be, to a want of probable cause, and consequently will, or will not, entitle the plaintiff to the verdict which he seeks. If, instead of such a direction, he leaves it to the jury to determine not only whether the facts alleged by the plaintiff are true, but whether, it* true, they prove a want of probable cause, he abjures his own functions, and commits a fatal error.

We deem it unnecessary to refer to any cases in the English reports, or in our own, in support of these positions, since, could we have been justified in considering the law as previously doubtful, we are bound to regard it as now settled by the recent decisión of the court of appeals reversing the judgment of this court, and ordering a new trial, in the very case that is now before us. The ground of this reversal was, that the judge told the jury that it was their province to determine whether the facts and circumstances in evidence did or did not establish the want of probable cause, thus leaving the whole matter to their determination, instead of expressing his own opinion as to the conclusion of law to be drawn from the facts, as alleged by the plaintiff, should the jury believe them to be proved.

Round as we are by this decision, we are constrained to say that the charge of the presiding judge upon the last trial, was just as erroneous as that which led to the reversal of our former judgment, as from the terms in which it was expressed, it necessarily involved the submission to the jury of the question of probable cause, and was not limited to the facts upon which the question depended. He instructed the jury, that they were to consider and determine whether the facts and circumstances known to the defendants were reasonable grounds for their believing that the charge which they made against the plaintiff was true, and we are unable to make a distinction between the existence or non-existence of reasonable grounds of belief, and the existence or want of a probable cause. There is a difference in the form of expression, but none in the meaning, since the existence of reasonable grounds for believing a charge to be true, is, in reality, nothing more than a legal definition of a probable cause for making it. In deciding that there-were no reasonable grounds of belief, a jury, of necessity, decides that there was a want of probablti cause. The charge of the judge, therefore, amounted to no more than the definition which the law gives of probable cause, and permitted the jury, in the exercise of their own judgment, to apply the definition to the facts of the case—that is, permitted them to determine whether the facts which they might consider to be proved, did or did not amount to a want of probable cause. It was because this question upon the first trial was decided by the jury, and not by the judge, that our former judgment was reversed.

The judge, in the charge before us, also submitted to the jury, as a material question, whether the defendants themselves believed the charge against the plaintiff to be true when they preferred it; and it is not impossible, nor improbable, that it was npon the ground of the disbelief of the defendants that the jury founded their verdict. We apprehend, however, that when in an action for a malicious prosecution the existence of facts constituting a probable cause is admitted or established, the presumption of law is, that the defendant entertained and acted upon the belief which the circumstances within his knowledge justified him in holding; nor have we found a single case in which, under these circumstances, the question of the actual belief of the defendant has been submitted to the decision of the jury. We do not say that cases may not arise in which this submission of the question might be eminently proper, but we are clearly of opinion that this can only happen when the presumption of law, to which we have adverted, is .met and affirmative on the of the plaintiff. (Vide Carpenter v. Shelden, 5 Sand. 97, Nos. 5 and 6.)

In the present case, if the defendants did not believe the charge which they made against the plaintiff, they were guilty, in the affidavits upon which the charge was founded, of wilful and deliberate perjury; and, looking at all the evidence in the case, it seems to us it would be monstrous to say that the jury could be justified in drawing such a conclusion, and if not warranted to draw the conclusion, the question involving it ought not to have been submitted to their determination.

Eight or ten of the witnesses examined on the trial swore substantially to the same facts as the defendants.

They were, all of them, disinterested and unimpeached, and it has not been pretended that they did not sincerely believe that the facts to which they swore had actually occurred. They may, all of them, have been mistaken ; but it appears to us, that a jury could no more be justified in imputing to the defendant the guilt of intentional falsehood, than to the witnesses by whom they "were sustained. If, therefore, the verdict of the jury, as was asserted upon the argument, proceeded upon this supposition, their verdict, even could we admit that the question was properly submitted to them, we are bound to say, is unsustained by the evidence; and upon that ground alone, were there no other, ought to be set aside.

The observations that have now been made are sufficient to justify us in granting a new trial, but they do not cover all the questions that have been raised, and which, in order that this protracted litigation may be closed, it seems necessary to determine. We have, therefore, felt it° our duty to examine, with care, all the evidence that was given upon the trial, and we now state, as the result of the examination, our full conviction, not only that the plaintiff failed to prove, as he was bound to prove, the want of a probable cause; but that, confining ourselves to undisputed facts, the existence of a probable cause was affirmatively shown. He might, therefore, have been rightfully nonsuited, or the jury have been positively instructed to find a verdict in favor of the defendants.

The charge against the plaintiff was, that when examined as a witness in the suit in the common pleas, he had falsely sworn that he had no interest in the event of the suit; and the material inquiry is, whether the defendants were justified in believing that such was the testimony that he actually gave; that if he gave this testimony, his subsequent acts and declarations justified them in believing it to be false, was in effect decided by the chief justice upon the trial; and, judging from the opinion of Mr. Justice Gridley, with which we have been furnished, was plainly meant to be decided by the court of appeals.

Mow the truth of the proposition seems to us too manifest to require an argúment, that in order to justify the defendants it was not necessary for them to prove that the plaintiff had sworn, in terms, that he had no interest in 'the event of the suit in which he was examined, or that the question whether he was so interested or not, was directly put to him. If he was cross-examined for the purpose of showing that he had an interest beyond that which belonged to him as the attorney of the plaintiff, and which rendered him incompetent as a witness; and if, when thus examined, he swore to facts that, if true, conclusively proved that he had no interest that could affect his testimony, the existence of a probable cause for the charge subsequently made against him was, in our judgment, conclusively established. It was conclusively established, if he swore in substance, although not in words, that he had no interest that could disqualify him as a witness.

Mow, when we read, with any attention, the testimony of his own witnesses, who were present at his examination in the common pleas, it is evident that the object of his cross-examination, and the purport of the testimony which he then gave, were exactly such as have been stated. By the confession of those witnesses, he did swear in substance, although not in words, that he had no interest in the event of the suit. Those witnesses, Messrs. Sandford, McClelland, and Russell, it is true, unite in saying that the plaintiff was not asked at all whether he was interested in the event of the suit, and consequently could not have replied as the defendants had sworn, that he had no such interest; but they also unite in saying that he was asked whether there was any agreement between him and his client, and that in his reply he positively denied that any such agreement existed. We think it cannot be doubted that the object of this question was to ascertain whether he had any interest beyond that which belonged to him as the attorney (and which the court had already decided was not sufficient to disqualify him), that by proving his incompetency, would compel the court to reject his testimony, since such an interest, if it existed, could only be founded on or derived from a positive agreement between him and the plaintiff in the suit; and it is undeniable that the plaintiff affirmed, by a necessary implication, that he had no interest in the event of the suit, by denying the existence of any agreement from which the interest could have been derived.

Nor is this all: that such was understood at the time to be the object of the question, and such the effect of the reply, is distinctly stated by the witness, Eussell, who says that the question was asked, to find out whether the verdict was to go to the plaintiff’ or the lawyer,” and that he understood from the reply that it was to go to the plaintiff, Bradley,, alone. The witness, therefore, understood the plaintiff as swearing that he would have no interest in the verdict he was endeavoring to obtain; and this, under the circumstances, was precisely equivalent to saying that he had then no interest in the event of the suit.

Let us now suppose that the defendants, in the affidavits which they laid before the police magistrate, had stated the testimony of the plaintiff exactly as it has been stated by the witnesses we have named, and, in order to prove the testimony to be false, had then produced the letter which he addressed to the defendant, Smith, on the day immediately following the verdict, and in which, by force of a power of attorney from his client—a document which, if it existed at all, must have been in his possession when he gave his testimony—he claimed an exclusive title to demand payment of the judgment, and in truth, by stating the power to be irrevocable, claimed to be its exclusive owner, could it then have entered into the mind of any one to imagine that the present action could be maintained? Is it not plain that the plaintiff, under these circumstances, so far from having a right to say that there was-no probable cause for the charge of perjury, could only have escaped from the imputation, by showing that the testimony which he gave was true, and the assertions in his letter wholly false. That the defendants believed these assertions in preference to his testimony, certainly afforded to him no just cause of complaint, since the letter was evidently written with the intent that the defendants, Smith and Keteltas, should believe its contents to be true, and in the expectation that this belief would influence their conduct. And we assent entirely to the position of Mr. Justice Washington, that when it appears, in an action for a malicious prosecution, that the plaintiff, by his own folly or fraud, exposed himself to a well grounded suspicion of guilt, this alone is sufficient evidence of probable cause. (Wilmarth v. Mountford, 4 Wash. C. C. R., p. 82.)

The ease, as it now stands, in our judgment, rests substantially upon the same grounds, and is governed exactly by the same considerations, as if the affidavits of the defendants had been made in the form that has been stated; for the supposition that the defendants could only meet the allegation of a want of probable cause, by showing that the plaintiff, when examined in the Common Pleas, had sworn in express words, that he had no interest in the event of the suit, we cannot at all hesitate to reject. We have already said that the existence of a probable cause was established, by showing that the intent and the result of his testimony was to convince the court and jury that he had no interest in the event of the suit that could lead to the rejection of his evidence; and this, we have seen, his own witnesses have proved.

Finally, had the true and sole issue been, whether the testimony of the plaintiff was given in the very words that are found in the affidavits of the defendants, we should still have felt it our duty to set aside the verdict that was rendered.

There is a great preponderance of unimpeached and unsuspected testimony, that the language of the plaintiff was exactly such as the defendants represented, and such are the doubts necessarily arising upon the whole evidence, that even had the question been such, as we have supposed, the presiding judge, in our opinion, would have been fully justified in telling the jury that the plaintiff had failed to establish, by the necessary proof, the want of a probable cause, and that .the defendants were consequently entitled to the verdict. Since the great leading case of Johnstone v. Sutton (Term. R. 544), the law is settled, that the essential ground, in the language of Lord Mansfield, of the action for a malicious prosecution, is the want of probable cause, and that, in all cases, this must be substantially and expressly proved. It follows that when the evidence is doubtful, it is in favor of the defendant that the doubt must be determined.

It is not to be understood that in granting a new trial, we mean to express any approbation of the conduct of the defendants, and more especially of the defendant, Smith. The jury may well have thought that in persisting, as he did, in the prosecution of the plaintiff, he was actuated not at all by a sense of public duty, but solely by motives of private revenge. Had the sole question been, whether the imputation of express malice was justified by the evidence, we could not have disturbed the verdict that was given. It is true, that from, the entire want of probable cause, malice may be inferred, but the converse of the proposition is by no means true, that where express malice is proved, the want of probable cause may be implied. Still less is it true, that damages' may be given to punish the malice, even when the existence of probable cause is fully established. It is into this' error, however, that the jury appears to have fallen.

Verdict set aside, and a new trial ordered, with costs to abide the event.  