
    Henry Paris vs. Edmund Waddell.
    In an action on the case, where the facts as to probable cause are not disputed, a Judge may take upon himself to say what is, and what is not, probable cause. But where the facts are contested, probable cause becomes a mixed question of law and fact, to be decided by the j ury, under the instructions of the presiding Judge.
    Before Butler, J., at Greenville, Fall Term, 1840.
    This was an action on the case, for malicious prosecution. The alleged cause of action was, that defendant caused plaintiff to be apprehended for a criminal participation, with his own slaves, in stealing a hog of the defendant. The history of the case will indicate its character. Long branch runs through swamp and forest lands that are a common range for hogs. The plaintiff lives about three miles from it, and defendant one. On the 6th of March, 1839, the plaintiff, an old man about eighty-four years, old, borrowed a cart from his neighbor, Mrs. Townes, and sent two of his own negroes, Bob and his son, with it into the woods, to catch and bring home some wild hogs which he supposed he had a right to. One of Mrs. Townes’ negroes was also along. Whilst the negroes were in the swamp, a Mr. Dean was passing along, and hearing dogs, went to the place where they were barking. He found Bob there, standing by a hog that had been caught and tied, the other two negroes being at some distance off. Whilst the witness was talking to Bob, a sow with some pigs, nearly large *enough to be weaned came up following his horse’s tracks, and after smelling the horses legs, the sow went off rooting Bob remarked that the sow was unmarked, and that he should catch her. The witness told him not to do so, that she belonged to Waddell. Bob said that he had been informed that it was lawful to take up in the woods any hog that was unmarked, over six months old. Witness again told him that he had seen the sow and pigs at the defendant’s, and he was confident they belonged to him. Bob hallooed for the other negroes, and told them to go on and look for hogs; that he would be on presently. The witness went off, and in a short time heard hogs squeal and dogs bark ; went to the place and found they had caught this unmarked sow. Other hogs coming up, the dogs let her go, but by the direction of Bob, she was again caught. The witness went immediately to defendant’s and told him all he had seen. The defendant asked him to go over with him to Paris’s, saying that was not the first of his hogs that had been taken, and that he would not submit to it any longer. When Waddell and witness got to Paris’s he was feeding the sow in a pen, while his negroes were altering the other hog. Waddell recognized his sow, and said to Paris, you ought not to let your negroes go in the woods so far from home to catch hogs ; you have got one of my hogs in the pen, and it is not the first time the thing has happened, and if you don’t let my hog loose immediately, I will have you indicted. The witness said Waddell was in an ill humor, and rode off. The Monday after, (and while the sow was in the pen, for she was not turned out for a week,) the defendant went before Richard Thurston, a Justice, and detailed all the circumstances of the case ; and made the following affidavit:
    “ That he had just reason to believe that Henry Paris had in his possession a hog belonging to him, the said Waddell; that said Paris’s negroes, Bob and líense, stole said hog, and carred it to Henry Paris’s and there had it in pen, said Henry Paris knowing it.” Upon this, the Justice issued a warrant for Paris and his negroes. Paris was arrested and gave bail. The negroes were subsequently arrested ou another warrant, and tried before Justices and Freeholders for stealing the hog. The negroes were acquited.
    *Two or three members of the court were sworn, who said they did not think there was any just grounds to charge the negroes with a larceny. The justice, however, Thurston, thought the negroes ought to have been punished. The warrant against Paris was returned to the solicitor, who entered thereon a nol pros. An order discharging Paris from his recognizance was obtained, and this action commenced. The plaintiff proved an excellent character ; and that he had sent the negroes openly into the woods with the cart; that he kept the sow for some days in the pen, and had her examined by some of his neighbors, who gave it as their opinion that she was a wild hog. The plaintiff also proved, that on the trial of the negroes, defendant had said to some of the persons present, that all the fat hogs in Long branch belonged to Paris ; and had said that was not the first time that his hogs had been taken by Paris’s people. The defendant introduced evidence to show, that plaintiff’s negroes were under little or no control or discipline. A Mr. Magnis was sworn, who said that a year or two ago, he had been hired by Mrs. Townes to go into Long branch and search for hogs ; that he and Mrs. Townes negroes had caught and killed two hogs, one of which turned out to belong to a Mr. Andrew Young, who came into the woods and took it off, having told the witness and negro, that the other belonged, from the mark, to Waddell. After advising with some persons, the witness, Magnis, carried the hog to Paris, where he was living, and asked him to take half, which Paris did ; both agreeing, that if the hog should ever be claimed by any one, they would pay for it. They did not, however send word to Waddell, particularly, that they had divided the hog, which was said to be of his mark.
    The case went to the jury, and I charged them on the general principles of the law — saying, that if the facts were undisputed, it was the duty of the judge to say, whether probable cause had been shown, or the absence of it. That when the facts were contested, as they were here, in in this case, the case must go to the jury, with such remark as the judge might think proper to make. That I thought the conduct of the negroes reprehensible ; and to say the least of it, they had committed a censurable trespass ; for there was no doubt but the sow belonged to plaintiff, and that they had been ^apprised of it; that although defendant had no sufficient cause to charge felony against the negroes, there was some excuse for it; but that where the defendant had gone and charged the master with a criminal participation in the guilt of the slaves, as I thought he had done, by the terms of his affidavit, I thought he had gone too far; unless, indeed, he had good reasons to believe that Paris knew the hog to be his, the defendant’s, when the negroes carried it home. That if Paris had been informed fully, by the negroes, of all that had occurred between them and Dean, it was his duty to have sent for Waddle, or to send word to him, &c. But that if Paris believed that the negroes had brought home a wild hog, to which he had any right or claim, he was, in fact, guilty of no offence in having the hog put in his pen ; and that Waddell should have made diligent inquiry as to the facts of the case, before he took out the warrant. That the criterion in such a case, should not be, what would a kind and generous neighbor have done, (for such an one, no doubt, would have forborne any proceeding of a criminal nature,) but that the question should be, what might a reasonable man have done under the circumstances ? Was there ground for suspicion to any mind not blinded by malice or misled by prejudice ? That if there were just grounds for suspicion, at the time that Waddell made the charge, he might be excused ; but if there were no such grounds of suspicion, against Paris, to an ordinary mind, the jury should find a verdict against him. Yerdict for the defendant.
    GROUNDS OF APPEAL.
    1. That his Honor, the presiding Judge, should have decided the question of probable cause, as a question of law, and not have left it, as he did, as a mere question of fact to the jury.
    2. That at any rate, the question of probable cause, as a mixed question of law and fact, should have been decided by his Honor, in alternative views of the facts, leaving to the jury the application of the law to the facts, as they might have been found ; whereas, the question of probable cause was left to the jury, as much as the question of damages, without any instruction to the jury of the peculiarities of this question.
    3. The Judge in his charge said, that if the jury supposed *defendant regarded the conduct of the negroes, (mentioned in the evidence,) as larceny, that might constitute probable cause.
    4. There was no probable cause proved.
    5. In addition to the want of probable cause, express malice was proved against the defendant.
    6. Because the verdict for defendant, is against the law and facts of the case.
    
      Townes, for tlie motion.
    From examination of all the authorities, the two first grounds are sustainable.
    
      There was no conflict in the facts of the case, and it was the proper province of the Judge to decide the question of probable cause, either as taken in the first or second ground.
    The jury are not capable of discriminating.
    Probable cause, a question of law. Cited Taylor vs. Cooper and wife, 2 Const. Rep. 208; Lipford vs. McCollum, 1 Hill, 82; 2 Selwyn N. P. 1061; 1 Term. Rep. 505: Bull. N. P. 14; Enqlish vs. Clean, 3 Hill, 279; Douglass vs. Strong, 2 R. Dig. 116; Starkie, 112.
    
      Young, contra.
    Two things are necessary to enable the plaintiff to recover; 1st, Absence of probable cause ; 2d, Malice.
    The Judge has done all that he could, by fairly submitting the case to the jury, for their decision.
    
      Wardlaw, in reply,
    cited, in order to show that the want of probable cause should have been decided by the Judge, 22 Vol. Eng. Com. Law Rep. 56, 196.
   Curia, per

Butler, J.

From the way this case went to the jury, they had a right to say that defendant had no probable cause for his proceeding. Under the circumstances, the plaintiff could not have asked for more. He had an opportunity to obtain a verdict upon the only view of the facts which could have authorized it. For my brethren are all of opinion that from the most obvious view which could have been taken of the case, defendant had probable cause for his complaint to the justice. Had he reasonable grounds to believe that plaintiff was informed of all the circumstances under which the hog was taken ? to wit: that the negroes *had caught a hog, which they were informed belonged to the defendant; and did they carry it to plaintiff, and tell him all the circumstances ? If so, plaintiff was wrong in countenancing his negroes in a highly censurable and reprehensible proceeding. He did not, perhaps, intend to be dishonest himself, but he was sustaining his negroes in dishonesty.

In this point of view, defendant had reasonable cause for instituting some proceeding to reclaim his property, and to prevent future depredations on it. As a generous neighbor, he might have forborne; but legally, he was under no obligation to do so. It is the duty of the Judge to present the facts, in their different points of view, when they are controverted, and to say, according to one or the other view, there would or would not be probable cause. There can be no artificial rules for presenting alternatives to a jury. Where, as in this case, the facts were disputed, and were susceptible of different views, so far as the motives of the parties were concerned, the Judge could not have taken on himself to rule, positively, one way or the other. The case, under such circumstances, properly went to the jury; and the facts were so explained, as to present the alternatives for their consideration and decision.

It is only in cases where the facts are not disputed, that a Judge should take upon himself the responsibility of saying what is probable cause. It is only in such a case, that the question of probable cause is entirely one of law.

In none of the cases referred to by plaintiff’s counsel, did the Judge undertake to decide himself, what was probable cause, where the facts were at all disputed. The cases in 22 E. C. L. R. 53 and 196, presented no new question. In one, the C. J. decided that defendant had probable cause for the prosecution against the plaintiff, and nonsuited the plaintiff; but the facts in that case were not at all disputed, and the Judge was obviously right. In the other case, the facts were complicated and disputed, and all the Judges said there could be no definite and uniform rule laid down in such cases. The general rule is recognized, that where the facts are contested, probable cause is a mixed question of law and fact, to be decided by the jury, under the instructions and explanations of the presiding Judge. In these instructions, the different alternatives must be presented; that is, upon the assumption of one state of facts, or another, the Judge must say what would or *would not constitute probable cause. An attempt to subject every case to abstract and artificial rules, is vain. Each case must, and will, be modified by its own circumstances, to some extent.

See Horn vs. Boone, 3 Strob. 309; Campbell vs. O’Brien, 9 Rich. 207. An.

It is enough to say, that in the case under consideration, the plaintiff has no cause to complain of the manner in which his case was submitted to the jury. If the verdict had been against the defendant, he, perhaps, might have complained that the Judge did not interpose, to prevent a verdict being rendered against him.

The motion for a new trial is refused.

RjciiaRdson, O’JSTeall, and Evans, JJ., concurred.  