
    
      Berry Horn v. Daniel Boon.
    
    In an action for malicious prosecution want of probable cause cannotbe inferred as a consequence from any degree of malice that may be shown~although the legal inference, prima fade, of malice might be allowed from proof of the want of a probable cause. The action rests confessedly upon the existence of the one, and the non existence of the other, as distinct elements; the bur-then of proof, as to both, being on the plaintiff.
    The question of what is probable cause, and whether the proof of certain facts establishes the same or not, is for the Court — always so where facts are given. The facts from which the conclusion of law is to be drawn, are to be submitted to the jury whenever they are doubtful or disputed.
    
      Before Wardlaw, J. at Edgefield, Fall Term, 1848.
    Case for malicious prosecution.
    The declaration alleged that the plaintiff and his wife, being of good character, &c. the defendant, with intention to injure them, and without probable cause as to them, had maliciously prosecuted them for retailing spirituous liquors, without license, -to the damage of the plaintiff.
    The testimony adduced by the plaintiff, made this case :—
    The parties were not known to be unfriendly before 21st. Nov. 1844. On that day, as John B. Hamilton went to a sale of Bean’s estate, he and others drank whiskey on the public road, near to the plaintiff’s house, and near to a wagon, which was in the road. At the sale a quarrel between the parties arose, concerning some land, for which they both were bidders. The afternoon was cold and rainy, and on the way from the sale, where they had left the plaintiff, as Hamilton, Collins and others rode along, some one spoké of the whiskey wagon, wishing they could meet it; and then a suggestion was made that perhaps some spirits could be got at the plaintiff’s. They called, and asked if they could get any; the plaintiff’s wife said she had none for sale; they insisted, and told her that there should be no difficulty ; she need not fear — no one would interrupt her; she could not refuse, and sent out whiskey in a broad tin cup, which held near a quart, but was not a measure; they drank sitting on their horses, in the road; Collins threw one or more pieces of money into the cup — he could not recollect how much, nor whether other persons also threw in; twenty persons ox-more were present, and amongst them the deféndant was in the rear of the crowd, whilst the drinking was going on.
    On the 20th May, 1845, the defendant made an affidavit, charging the plaintiff and his wife with violating the law against retailing ; gave his bond to prosecute, and procured a warrant, under which they were bound in recognizance, on 25th September, 1845. The warrant was filed in the Clerk’s office, 29th September, 1845. No explanation 'was given of the subsequent delay. At October Term, 1846, the defendant and Collins went as witnesses, before the Grand Jury, and a true bill was found. A trial was had at March Term, 1847, resulting in a verdict of not guilty.
    Various attempts at compromise were made pending the indictment, at some of which, after some talk about land, which was in dispute between the parties, the defendant said he would law the Horns, as long as had a picayune. To Jessee Limbacker he said he would drop the indictment if the plaintiff would give up the land; and to James Dorn, he said that he had no idea he would have indicted, if he and the plaintiff had been friendly.
    The general good character of. the plaintiff and his wife was proved, and several witnesses said that they had heard no suspicions of their retailing. James Dorn had heard, perhaps after the prosecution, that some of the neighbors were suspected of getting spirits at the plaintiff’s, which he seemed afterwards to narrow to one Still going there and drinking with the plaintiff.
    Upon motion for non suit, his Honor said he thought that although the malice might be apparent, the want of probable cause was not; and granted the motion.
    The plaintiff moved the Court of Appeals to set aside the nonsuit, on the following grounds:
    1. That the want of probable cause was clearly shewn, from the facts testified to by all the witnesses, that the plaintiff nor his wife was ever suspected of retailing in any way, that they were of good character, that the plaintiff was absent at the time, and known to be absent by the defendant, that the liquor sent out into the road, to Collins and others, was not sent for sale, but on the importunity of those desiring it, after Mrs. Horn assured them that she had none for sale; and from the evidence of Collins and others, that there was no retailing, and no trading ; and from the further facts that express malice was proved by James Dorn, who testified that the defendant said that if he had not been unfriendly to plaintiff he would not have indicted him; from the facts that the warrant was taken out only one day before the expiration of six months after the alleged retailing, and the case not prosecuted by bill before the Grand Jury, from 20th May, 1845, till October, 1846. And that it was proved by Hamilton, Limbacker and others, that defendant was obviously using this prosecution to compel plaintiff to give up to defendant a tract of land in plaintiff’s possession, to which defendant had no pretence of title; and from the fact that the jury had acquitted the plaintiff and wife, on the indictment.
    2. Because the question whether there was probable cause was a question for the jury, especially as in this case the facts were contested. v
    Per Tíndal, C. J- in Delegal ”^02.’
    parís v. Wad-dell, i M’Mul. 358-
    3. Because his Honor was in error in relying on the hearsay evidence of some of the witnesses, (objected to) that they had heard that a wagon with liquor had been, on the morning of the alleged retailing, in the public road near plaintiff’s house, without any proof that plaintiff was present, or knew that such wagon was there, as constituting probable cause— and without having even the suspicion of any one, that defendant had been informed of any such occurrence.
    4. Because the defendant, having quarrelled with the plaintiff, on the very day, was, at the time that this event (the alleged retailing) occurred, the only one present who ever alleged any violation of the law.
    5. Because there was abundant proof of the malice of defendant, and want of probable cause.
    
      Griffin, for the motion.
    
      Wardlaw, contra.
   Withers, J.

delivered the opinion of the Court.

If the existence of malice excluded that of probable cause, we might be inclined to differ from the circuit Judge, and set aside the nonsuit. But it is quite well settled that want of probable cause cannot be inferred as a consequence from any degree of malice that may be shewn ; although the legal inference, prima facie, of malice might be allowed, (as is said in one of our cases) from proof of the want of probable cause. Indeed the action rests confessedly upon the existence of the one, and the non-existence of the other, as distinct elements, the burthen of proof as to both being on the plaintiff in an action for malicious prosecution.

We shall not stop to insert definitions of probable cause— the books, our own included, are full enough of such matter. But assuming any form of definition adopted by reputable authority ; as, would the circumstances induce a belief of the plaintiff’s guilt on the mind of any reasonable man, or “what might a reasonable man have done under the circumstances “was there ground of suspicion to any mind not blinded by malice or misled by prejudice“was there just ground of suspicion at the timelet us endeavor to apply some test, suggested by such definitions. Suppose, then, a perfect stranger to the plaintiffs, acquainted with the laws of retailing, should have witnessed what occurred with the wife of Horn for example, an inquiry for spirits — the answer that there was none for sale, then the persuasions from the applicants, that there should be no difficulty, she need not fear, no one would interrupt her •, whereupon the liquor was sent out and money returned — what would an indifferent looker on necessarily conclude ? The refusal at first was overcome ]3y certain assurances which had no meaning in them at all, unless they were understood, on both sides, to imply a sale. That is what she, in words, declined at first, and yielded at last. Surely there was developed in such a transaction reasonable grounds of suspicion to a reasonable mind, to say the least, of the guilt of the woman, in selling less than 3 gallons of whisky.

3 B- ira

The husband, it is true, was not present; but he might have been guilty nevertheless; and a stranger, seeing what has passed on the part of the wife, observing the movements of the whiskey wagon in the morning, considering that if the wife retailed at all she probably did so ■ with the knowledge and approbation and for the benefit of the husband, and adverting to the idea that if she did so as his instrument, he and not she was the guilty person; seeing that by a sort of common consent a number of persons (some 20) failing to encounter the wagon seemed to follow confidently the lead of some one to this house as the place to obtain whiskey j such looker on would not be unreasonable in suspecting that in the particular instance the wife was but imitating the example of the husband, or consulting his pleasure. It ought also to be remarked, that including the husband in the indictment was only that which the Solicitor, if he had been consulted, might have advised, with an eye to the facility with which a wife may escape, in such cases, by the disposition of the law to impute her acts to the husband.

No doubt is entertained that the question of what is probable cause, and whether the proof of certain facts establishes the same or not, is for the Court; always so where facts are given. The facts from which the conclusion of law is to-be drawn, are to be submitted to the jury whenever they are doubtful or disputed. Lord Tenterden observed, in Blackford v. Doil, as follows : “It is difficult to lay down any general rule as to the cases where the opinion of ajury should or should not be taken. I have considered the correct rule to be this — if there be any fact in dispute between the parties, the Judge should leave that fact to them, telling them, if they should find in one way as to that fact, then in his opinion there was no probable cause, and their verdict should be for the plaintiff; if they should find in the other, then there was, and their verdict should be for the defendant.” Here, however, no dispute existed about the facts; it was the case made by the plaintiffs themselves.

While, therefore, we do not much admire the probable motives that actuated the defendant in this transaction, we must give him his strict law, and take care not to embarrass prosecutions with so much hazard as to repress them in an undue degree. A majority of the Court, at any rate, do not perceive that there was on the circuit any infringement of the plaintiff’s legal rights, and his motion is therefore dismissed.

O’Neall, J. — Evans, J. — Ward law, J. — and Frost, J. concurred.

Richardson, J. dissented.

Motion refused.  