
    SAMUEL N. KINGSBURY and others, Plaintiffs and Respondents, v. CHRISTOPHER H. GARDEN, Defendant and Appellant.
    I. Malicious Prosecution.
    
    1. Probable cause.
    
      (a) Question of law. Upon a given state of facts, the question as to whether there was probable cause is one of law, to be decided by the court.
    1. Conflict of evidence as to the facts.
    
    Such conflict must be disposed of by the jury, and therefore the cause must go to the jury under proper instructions from the court as to their duty to find probable cause, or want of probable cause, according as they may determine the facts.
    
      (b) Probable cause, what not sufficient in itself to establish.
    
    1. Advice of counsel.
    Merely showing that counsel, after a full and fair statement to him of all the facts, advised the prosecution, without showing the further element that the party in good faith, acted on the advice, is insufficient of itself to show probable cause.
    2. Malice.
    
      (a) Question for the jury.
    1. Inference from want of probable cause.
    
    1. Cannot be inferred solely from want of probable cause.
    3. Determination of prosecution.
    
      (a) Discontinuance by consent.
    
    1. Semble. Not sufficient to support an action for malicious prosecution.
    II. Trial, conduct of.
    
    1. Submitting a case to the jury in two aspects, effect of. Where, under a complaint, a case may be submitted in several aspects, and is so submitted, a verdict for plaintiff will be set aside if there are errors against defendant in the ehcn'ge as to one of the aspects.
      
    
    
      Before Sedgwick and Van Vorst, JJ.
    
      Decided April 7, 1879.
    Appeal from a judgment and an order denying defendant’ s motion for a new trial on the judge’s minutes.
    The facts sufficiently appear in the opinion.
    
      Wm. W. Goodrich, attorney, and of counsel, for appellant, among other things, urged:
    I. The action, of which malicious prosecution is alleged, must have been determined in the plaintiffs favor. The naked fact of commencing actions and failing to appear and prosecute, is not sufficient evidence of want of probable cause, to sustain the action (Gorton v. De Angeles, 6 Wend. 418; Palmer v. Avery, 41 Barb. 290; affirmed, 41 N. Y. Index, 619). Where it appeared that the prosecution complained of was dropped in consequence of a settlement between the parties, held, that no action for a malicious prosecution would lie (McCormick v. Sisson, 7 Cow. 715).
    II. The plaintiffs failed to show a want of probable cause. 1. ’ This question is a mixed question of law and fact. When the facts are ascertained, it is a question of law, and it is the duty of the court to pronounce the law arising from the facts, and not leave it to the discretion of a jury. Still, when the question of probable cause is submitted to a jury, who find for the plaintiff, and .the testimony leaves the question of probable cause doubtful, there is good ground for reversal (Roberts v. Bayles, 1 Sandf. 49, note; McCormick v. Sisson, 7 Cow. 715; Hall v. Suydam, 6 Barb. 87). The defendants’ counsel requested the court to charge, that if the jury believed that the defendants fully stated to counsel all the facts, and counsel advised the attachment, no want of probable cause was shown, unless shown by other evidence, and that the plaintiff could not recover. The court refused thus to charge, and the defendants excepted. If a party lays the facts of his case fully and fairly before counsel, and acts in good faith upon the opinion given him by such counsel (however erroneous that opinion may be), it is sufficient evidence of a probable cause, and is a good defense to an action for a malicious prosecution (Hall v. Suydam, 6 Barb. 83; Stewart v. Sonneborn, United States Supreme Court, 19 Alb. L. J. 89; Ravenga v. Mackintosh, Barn. & Cres. 691; Laird v. Taylor, 66 Barb. 139). The question of probable cause does not turn on the actual guilt or innocence of the accused, but upon the belief of the prosecutor concerning such guilt or innocence (Hall v. Suydam, ante; Fostray v. Ferguson, 2 Den. 619; 2 Phil. Evidence, 253; Miller v. Milligan, 48 Barb. 30).
    III. The proof of malice is as essential as that of the want of probable cause, and this is a question of fact for the jury. The learned judge withdrew the question of malice by charging the jury that the plaintiff had established malice. The evidence as to malice was at least contradictory, and the withdrawal of this question from the .jury was manifest error (Vanderbilt v. Mathis, ante; Laird v. Taylor, 66 Barb. 139).
    IV. An examination of the complaint will show that the plaintiffs sued, first, for damages occasioned by a malicious prosecution in procuring the issuing of a warrant of attachment upon a debt which the plaintiffs claimed was not then due, and secondly, on a claim that the defendants unlawfully took from the possession of the plaintiffs a large quantity of goods (being, in fact, the same goods which were seized by the sheriff under the warrant of attachment), and converted them to their own use. These two causes of action cannot be united in one complaint. At the close of the plaintiffs’ case, and also again at the close of the defendants’ case, defendants’ counsel moved to dismiss the complaint, on the ground that the proof showed no conversion. The action of conversion will not lie when the goods are returned to the possession of the plaintiffs ; and the proof shows that the plaintiffs filed a petition in bankruptcy on February 5, 1877 ; that they after-wards made a composition with their creditors at thirty cents on the dollar; and also that the sheriff was discharged from the custody of the property on February 27, 1877. In other words, the property had been returned to the possession of the plaintiffs. Conversion' does not lie under such circumstances, and the court should have granted the motion to dismiss the second cause of action. The importance of this refusal will be evident from the fact that, under the charge of the court, the damages arising from malicious prosecution, and the damages for injury to the goods, are inextricably confused, so that the jury rendered their verdict for a round sum covering damages partly real and partly fanciful, partly growing out of the malicious prosecution and partly out of supposed damage to the goods.
    Y. It was claimed by the respondents at the trial that the appellants had ratified the term of credit expressed in the notes, by recovering a judgment thereon, and that this was conclusive against them upon their allegation that the respondents had been guilty of fraud, in obtaining a term of credit upon the note. The answer to this is three-fold : First. The fact of a subsequent suit on the notes does not affect the question of interest at the time when the appellants commenced their action. Many things might have occurred meanwhile to render it proper to sue on the notes ; the question is, what was the intent of the appellants at that time ?—was their prosecution malicious, or simply a prosecution commenced in good faith, under advice of counsel % Second. There is no evidence before the court that any such judgment was obtained. Third. If there be any such evidence, or if it be conceded that such judgment was obtained against Daniel H. Lawrence upon such notes, that judgment is an adjudication that the capital stock subscribed by the special partners was not fully paid in, and that thereby Daniel H. Lawrence had been made liable as a general partner ; the result of which adjudication is, that the partnership was based on perjury and was fraudulently formed, and this is res adjudicaba in the present litigation. Mr. Gardner was asked the question whether he would have sold goods to the respondents, if he had known the manner in which that capital was paid into the concern, the answer to the same being excluded under the objection and exception of the respondent’s counsel.
    
      B. T. Ludington, attorney, and Geo. W. Lord, of counsel, for respondent, urged:
    I. The cause of action for trespass in seizing the plaintiff’s goods, and the conversion thereof by the defendants, was fully sustained by the law and the evidence, (a) A party who seizes property under an attachment which is subsequently set aside and vacated by an order of the court, is a trespasser ab initio. This was decided by the general term of this court, and that decision was affirmed by the court of appeals (Wehle v. Butler, 12 Abb. Pr. N. S. 139; S. C., 61 N. Y. 245). The evidence upon the trial showed that one object of the defendants in procuring the attachment was to obtain documentary evidence upon which Mr. Lawrence, the special partner, could be made liable' as a general partner of Kingsbury, Abbott & Hulett. This fact alone would have justified the jury in rendering a verdict of $5,000, however slight the actual damage.
    II. The cause of action for an abuse of process of law was also fully sustained, (a) It is well settled, that a party who procures an attachment by concealing facts, which, if disclosed to the court, would have prevented his obtaining the attachment, is guilty of .an abuse of the process of the law (Moulton v. Beecher, 1 Abb. New Cas. 193; Cooper v. Lewis, 2 Phil. 178; Reported in Daily Law Peg., July 6, 1878). (&) If the defendants had disclosed to the court, in their affidavit on which the attachment was obtained, that the goods in question had been purchased on a credit of six months, and that the notes given in payment therefor had never been returned to the purchasers, it is clear that the attachments would never have been granted, because there was no debt then due. (c) The retention of the notes, and the subsequent recovery of judgments thereon, was a clear ratification of the sale on six months’ credit, and the procurement of an attachment before the term of credit had expired, without any allegation in the complaint or affidavit on which the attachment was obtained, of fraudulent representations or concealment, was a clear and manifest abuse of the process of the law. Especially so, when it was shown that the attachments were obtained partly to give the defendants an unjust preference over other creditors, and partly for the purpose of procuring evidence by which to charge Mr. Lawrence as a general partner, in an action which the defendants intended to bring against him upon the notes which had been given in payment of the goods, {d) The rule of damages in an action for an abuse of the process of the law, is the same as an action for a malicious trespass.
    TTT. The fact, that other attachments subsequently came into the hands of the sheriff, is no defense to this action. The defendants were the “ causa causaus ” of all the injuries which followed (Tiffany v. Lord, 65 N. Y. 310).
    IV. The fact, that other attachments subsequently came into the hands of the sheriff, did not even go in mitigation of the damages (Same Case), (a) The attachments in favor of the creditors whose debts were due, did not come into the hands of the sheriff until several hours after the illegal attachments had been served. It was the seizure under the first illegal attachments of the defendants which ruined the credit of the plaintiffs, and which brought down upon them the other creditors. (5) Besides, Gardner, one of the defendants, with full knowledge that plaintiff had made arrangements to procure additional capital, advised the other creditors to sue. He took their claims and placed them in the hands of the attorney of Gardner & Co., who had never acted as attorney for any of the creditors before, except Gardner & Co. So Gardner & Co. were virtually the actors and wrongdoers in all the proceedings. A party cannot cover up his wrongful act by procuring other creditors to act, after he has set the injury afoot by an illegal use of the process of the court (Cases before cited), (c) Besides, it was a matter of no consequence what was the amount of actual damage sustained by the levy of the defendants’ attachment, so long as the jury were authorized to find that the acts of the defendants were malicious.
    Y. In view of the foregoing points, it is hardly worth while to examine the evidence, to see whether it supported the.cause of action for a malicious prosecution, technically so-called, (a) If the cause of action for trespass and conversion, or for abuse of the process of the law was made out, then a new trial should be refused, whether the cause of action for a technical “malicious prosecution” was established or not. (&) But the evidence did sustain the latter cause of action. The attachment suits were ended, and the attachment was set aside before this action was commenced (Moulton v. Beecher, before cited).
    VI. The question of “probable cause” was one of law for the court, there being no ■ dispute about the facts. And the counsel for the defendants, in his motion to dismiss the complaint, rested his motion upon the ground that the question of probable cause was one of law, as to what must be shown to establish cause (Sheriff v. Loucks, 58 Barb. 426; 56 N. Y. 451).
    VII. The defendants, having retained the notes given in payment of the goods, had no probable cause for getting an attachment for a debt not then due, by the concealment of that material fact (Hammond v. Pennock, 61 N. Y. 145; Kennedy v. Thorp, 51 Id. 174).
    VIII. There being no dispute about the fact that the defendants had retained' the notes, and had also recovered judgment upon them, it followed, as a necessary consequence, that they had ratified, as a matter of law, the.contract of sale. Hence, all the evidence offered by the defendants on the trial, to show that the plaintiffs were insolvent at the time of the purchase of the goods, was properly excluded by the court. Knowledge of insolvency and concealment is not a fraud in law (Chaffer v. Fost, 2 Lans. 87; Nichols v. Pinmer, 18 N. Y. 295; 20 Id. 293). The fact that judgments had been recovered by the defendants on the identical note, was assumed throughout the trial.
    
      
      
         This should probably be taken with the following qualification: viz.: provided the conceded or undisputed or indisputable facts bearing on the case in the aspect as to which the errors were not committed, do not necessarily, as matter of law, call in that aspect for the verdict that was rendered.
    
   By the Court.—Van Vorst, J.

The learned judge before whom the action was tried, in the opening portion of his charge to the jury, stated that the action for malicious prosecution could not be maintained, unless there was some proof of malice. He afterwards stated that “ questions of malice and probable cause are questions of law for the decision of the court, and are not questions of fact for the jury, unless there is some conflict of evidence. .

The defendants’ counsel, among other requests, submitted to the court, asked the judge to charge “that if the jury believe that -the defendants fully stated to counsel all the facts, and counsel advised the attachment, there is no want of probable cause shown, unless it is shown by other evidence, and the plaintiffs cannot recover.” The court declined so to charge.

The defendants’ counsel also asked the court to decide “whether there was or was not, probable cause.” To which the court replied: • “I have decided that you had no probable cause.”

The counsel also asked the court to charge “that the plaintiffs have not shown malice on the part of the defendants.” The judge in answer said : “ I have disposed of that by saying that they have shown malice.” To each of these rulings the counsel for the defendant excepted, as he did to the portion of the charge in which it was stated “that malice is a question of law for the court.”

In an action for malicious prosecution, it is incum - bent on the plaintiff to prove that the prosecution, of which complaint is made, was instituted without probable cause, and maliciously (Fagnan v. Knox, 66 N. Y. 525). The question of probable cause .is composed of both law and fact. ‘ ‘ It being the province of the jury to determine whether the circumstances alleged are true or not, and of the court to determine whether they amount to probable cause” (Besson v. Southard, 10 N. Y. 239). And if there be a conflict in the evidence as to the facts which are claimed to constitute probable cause, the question should be passed upon by the jury, under instructions from the judge. If there is no dispute about the facts, it is the duty of the court to decide the question of probable cause (Masten v. Deyo, 2 Wend. 424).

I do not think that there was any substantial conflict in the evidence, with respect to whether the defendants had probable cause for their proceedings by action and attachment. And it was therefore .the duty of the judge to determine, as matter of law, whether such facts and circumstances constituted probable cause. Wo substantial error is discovered in the rulings and decisions of the judge upon that subject.

The request of the learned counsel for the defendant, 11 that if the jury believe that the defendants fully stated to counsel all the facts, and counsel advised the attachment, then there is no want of probable cause, unless,” &c., &c., to be effective, did not go far enough. For although a party lays the facts of his case fully and fairly before counsel, and acts upon the opinion given, that of itself is not proof of probable cause. It must also appear that he acted in good faith upon the opinion given. And the question of good faith is for the jury, and not for the court (Hall v. Suydam, 6 Barb. 83, 88). It is only when he acts in good faith, that the opinion of the counsel will shield him. And that must be affirmatively shown by the party, in the event that the advice proves erroneous.

The learned judge, however, fell into an error with respect to the subject of malice. In order to a recovery in actions of this nature, the plaintiff must establish that the prosecution complained of was conceived and conducted in malice. Malice must be combined with want of probable cause (Goodman v. Stroheim, 36 Super. Ct. [J. & S.] 216. “ The question of malice in this action is for the jury” (Besson v. Southard, supra; Vanderbilt v. Mathis, 5 Duer, 304). For, although there was no justifying probable cause, yet, upon the whole evidence, it is for the jury to determine whether the defendant was moved by malice.

The judge was in error, therefore, when he stated that malice was a question of law for the decision of the court, and when, in regard to the defendants’ request on that subject, he stated to the jury “ that he had disposed of that by saying that they have shown malice.”

Even though the jury may have considered the subject of malice and determined it, yet the rulings of the learned judge must, of necessity, have prejudiced the plaintiff’s case.

The plaintiff’s counsel, however, urges that one of his causes of action was for trespass, and wrongful conversion of the plaintiff’s property, to which the strict rules in relation to actions for malicious prosecution do not apply. But the action was tried as one for malicious prosecution. The defendants’ counsel sought, at the commencement of the trial, to compel an election by the plaintiff’s counsel between his causes of action for conversion and malicious prosecution. The application was denied, and the dase went to the jury under both aspects.

Other grounds of exception were urged by the defendants’ counsel on the argument of the appeal, but it is not necessary to formally consider or pass upon them, in view of the errors to which allusion is above made. The objection, however, that it does not appear that the prosecution complained of had been determined in the plaintiff’s favor, appears to be serious.

It would seem, that the action was discontinued, as the order recites, by “ consent.” It is doubtful whether such a termination, if that is all there is of it, is sufficient to justify an action for malicious prosecution. But we will not, as it is not necessary, pass absolutely upon that question.

Judgment and order reserved, and new trial granted, with costs to the appellants to abide the event.

Sedgwick, J., concurred.  