
    SANDERS et al. v. PALMER.
    (Circuit Court of Appeals, Second Circuit.
    April 18, 1893.)
    ? ;>i AsaoraFo PuosnoirTTOx — PitouAutiU Cause — Pinvatis Peyrive.
    
    .u an action for uitok-Jouír. pj.w.eeuüon, however iixiheioi?, tuny have been ike piivaic motives of ike defendants in proaeoudug too rilsintM upon a n ¿mina? charge. ¡.My are protected in doing so if there was probable canso io Mimo him guilty.
    8, b.nru — Probable (Lire- -I”bo\tnoi5 ox Cufjei' a'.to Jttrv.
    In suck an action. T Ike fa «to are undisputed, or dearly established, it is tor the judge to deiermine whether they consfituto probable cause, and dirtier the jury uceordiugly; and when Hie toéis are disputed it Is the duty of the court to instruct ííio jury what, facts, if cat Mil; ¡hod, will eon: ¿Iluto a probable cause for the prosecution, and to submit to them only the quosdon as to tho enlsioiiee of Pies;! facto.
    it S\k"b — Probable Cause-- J.arííhhi- Baxskb op Pbopkeax.
    PlainiM rented of tlefiaidaiits a farm, for a term of years. Before tho term expired, defendants eormnoncod proceedings to dispossess him. rending rhese proceeding.5!, «Iriiiiül rented a neigliboiaus ilirui, and caused •ir-'.'rartt Ions ami posts io be removed thereto from defendants’ íarni. On the complaint ot defendants, plaintiff was arrested for larceny of the logs smd pores, and sun indictment was found against him, but on trial he was í.reíiilítetJ. He then «omjueueed un action for malicious prosecution, lío guvo evidence tending ¿o Ghovs tliat he cut ike poofs on an adjoining fem, beltmgíag lo defendante, and carried them to the limn he occupied, under ,,n -rrc.iiig-eniwii with, deiendsnin by -which Jio was to use them to repair the /racers. There was also evidence that iba logs wore out by him on tho leased farm to clear up one of the lots, upon the understanding that lie was to have them for Jus trouble. Kvi deuce war. given for defendants} tending to show that the posts and the logs were not cut by plaintiff, but were on the farm when he went into occupation of it; having been cut by a former tenant, and piled in various places for defendants’ use. Helé, that the judge properly refused, to direct a verdict for defendants, as the plaintiff was a bailee of the property, if the testimony given for him was true, and as the truth or falsity of the plaintiff’s contention was necessarily within the actual knowledge of defendants.
    4 Same — Probable Cause — Instructions.
    Under the circumstances, defendants were entitled to an unqualified instruction that if, as the testimony for them tended to show, the jury believed that plaintiff was not a bailee of the property at the time he carried it away, and appropriated it to his own use, plaintiff had not established want of probable canse, and it was error to leave the jury to decide whether the facts proved constituted probable cause.
    Shipman, J„ dissenting.
    In Error to the Circuit Court of the. United States for the Southern District of Mew York.
    At Law. Action by John E. Palmer against Charles W. Sanders and others for malicious prosecution. "Verdict and judgment for plaintiff. Defendants allege error.
    Keversed.
    Kobt. D. Benedict, for plaintiffs in error.
    John W. Boothby, for defendant in error.
    Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
   WALLACE, Circuit Judge.

The plaintiffs in error were defendants in the court below in an action for malicious prosecution founded upon the arrest and trial of the plaintiff upon a charge of larceny. It appeared upon the trial that the plaintiff was arrested June 9, 3889, upon a warrant issued by a magistrate of Middlesex county, M. J., based upon a complaint made by the defendant Charles W. Sanders, which stated, in substance, that the plaintiff had feloniously stolen and taken away 120 red cedar posts, and 16 trunks of felled red cedar trees, the goods and chattels of Charles W. Sanders. On the next day an examination was had before the magistrate, and after a hearing he committed the plaintiff for trial, and admitted him to bail. At the September term of the Middlesex oyer and terminer an indictment was found against him by the grand jury; and on the trial of that indictment, in October, 1889, the plaintiff was acquitted. Thereafter the present action was brought. The facts shown were these: In March, 1888, the plaintiff rented of Charles W. Sanders a farm in Middlesex county, known as the “Sanders Farm,” for a term of five years, and shortly after went into occupation as a tenant. In February, 1889, proceedings were taken by Mr. Sanders to dispossess him, and pending, these proceedings he rented another farm near by, known as the “Jacques Farm.” Shortly before the making of the criminal complaint against him, he caused to he removed from the Sanders farm to the Jacques farm the posts and logs mentioned in the complaint. The defendants, who lived at a distance, were informed by anonymous letters that the plaintiff had removed these posts and logs. Thereupon they consulted Mr. Shafer, a lawyer, who had been' their professional adviser. He advised them to visit the Jacques farm, and ascertain the facts in respect to the removal of the posts and logs. They did so, accompanied by Mr. Mead, a real-estate agent. They found the posts and logs at different places on that farm, and saw that some of them had already been used for iP.aMiig fences. Plaintiff was absent, bat they ascertained from his hired man, then on Hie place, that he had brought the posts and logs there by the plaintiids di roc Ilona. They then retranca to Mr. Shafer's office, informed him what had been ascertained, and were advised by him that there was a sufficient ca.se for bits arrest of the plaiuüii for larceny. Thereupon the complaint wat made, and laid before the magistrate who issued the warrant. At the examination before Hoe ínaglilcate, after the testimony for the prosecution was closed, the plaintiff, at the suggestion of iris cob used, made a alalc-ment in exculpa (ion of the charge. Among other things, he said that he had supposed he had & claim on the posts for the labor of getting them out, and that he had removed them under the advice of Ms counsel!, lila counsel Immediately con ¡radieled Min, and stated to the magistrate that be had never given the plaintiff suck advice. After the ibrbfng of the indictment, and before the trial thereon, the plaintiff returned the posts and logs to the Sanders farm. At the presenil trial, evidence was given for file plaintiff lending io show that be cut the posts upon an adjoining farm oí: Mr. Bandera, known as the “Tappen ITann,” and. carried them to the Branden? ¡farm, under an arrangement with Banders by which he was to use them for repalrliig the fenecí?. By the terms of Ms "ease he was i.« keep the fences in repair. There was also testimony tending ro show that the logs were cut by hill! on the Bandera. hum to Mear up one of the lots, upon the understanding with Banders that he was to have them for Ms labor. Tie plaintiff admití ed the untruth of tí»? stateinentri made by Mm before the magis;» rate, Evidence was given for the dMeiidsnitr. tending to -how that lira posts and logs were not out by plaintiff, but were ¡here on the Banders farm when he vvoni ¡ni!o occupation of It, having been cut by a, former tenant, and pik'd In various places for the use o" Ms Banders. There was evidence to autiioM.Ke the jury to find iliac the criminal proceeding was begun by the defendants with the motive «if getting ¡he plainiiff out of possession of the Handera farm. On. the other hand, there was evidence to axiííiorke them to find, not only ¡hat the defendants had. reasonable and probable cause to believe that the plaintiff had bran guilty of larceny, but also to find that ílw' pIMuMff was guilty of ¡ho offense. At the close of the testimony ¡he eonri refused, as requested by the defendants, io direct the jury to sender a verdict for the defendant® upon the ground that there was not auffieient evidence of want of probable cause, or of malice. The deMudanA? excepted to i.Mo ruling. The trial judge was then requested by the defendants to Instruct the jury that ií ¡he defendants used due care, and honestly stated the facts as they understood them, and believed them to exist, to their counsel, and honestly acted under the advice of counsel, with no latent to injure the plaintiff, in violation oí the law, then the jury should find that there was no malice, and their verdict should be for the defendants. The trial judge instructed the jury substantially as thus requested. He was also requested by the defendants to instruct the jury, in substance, that if they found that the defendants, in view of the facts which had come to their knowledge at the time of making the complaint, had probable cause to believe the plaintiff guilty on grounds that would have satisfied a reasonable person, acting with reasonable care, then their verdict should be for the defendants. The court instructed the jury, with reference to this request, that they were to decide whether the defendants had reasonable grounds for starting the prosecution, and whether they started it honestly or maliciously, and that the plaintiff must malee out malice and a want of probable cause; that if the defendants, when they consulted Mr. Shafer, omitted to state material facts, or unfairly ■ stated their case to him, then want of probable cause had been shown by the plaintiff. The defendants excepted to this instruction, and also to the refusal of the judge to instruct the jury as requested upon the question of probable cause. The jury rendered a verdict for the plaintiff.

We have not deemed it necessary to consider any of the numerous exceptions taken upon the trial, as to which error has been assigned, except those to the refusal of the trial judge to direct a verdict for the defendants, and to his instructions upon the question of probable cause, and his refusal to instruct upon that question as requested by the defendants.

However malicious may have been the private motives of the defendants in prosecuting the plaintiff upon the criminal charge, they were protected in doing so, provided there was probable cause to believe him guilty of the offense. Mitchell v. Wall, 111 Mass. 492; Munns v. Dupont, 3 Wash. C. C. 37; Foshay v. Ferguson, 2 Denio, 617. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. Upon the trial- of an action for malicious prosecution, where the facts are in doubt, or depend upon conflicting testimony, the question of probable cause is a mixed one, of law and fact, to be determined by the jury under the instructions of the court. But if the facts are undisputed, or clearly established, it is for the judge to determine their legal effect, and direct the jury accordingly. In other words, whether the circumstances alleged to show probable cause, or the contrary, are true, and existed, is a matter of fact; hut whether, supposing them to be true, they amount to a probable cause, is a question of law. When the facts bearing upon that question are disputed, it is the duty of the court to instruct the jury what facts, if established, will constitute a probable cause for the prosecution, and to submit to them only the question as to the existence of those facts. Bulkeley v. Keteltas, 6 N. Y. 384; Besson v. Southard, 10 N. Y. 236; Stewart v. Sonneborn, 98 U. S. 187.

It was not disputed that, pending the proceedings to remove the plaintiff from the Sanders farm, he caused the posts and logs meníioned in the criminal complaint to be taken from that farm to the Jacques farm, which he had recently hired. It was not disputed that all of this property had been previously the property of Charles W. Banders. It was not disputed that the plaintiff had never asserted any title or claim of right to the posts to Mr. Sanders, or any person representing Mm, nor any lien or claim thereon for Ms labor in. respect to it. It was not disputed that he caused the property to be removed without asking permission, and without the’1 knowledge of Mr. Banders, or any person representing him It was not disputed that be had appropriated the property to Ms own use. It was clearly established upon the trial that he had appropriated part of it permanently, by using the posts for building fencer', upon the Jacques farm. It was not disputed that he had bo title'to the posts, or claim of right to them. He knew, as appears by his own testimony, that he had no right to use them ex- • cepf. for the purpose of repairing the fences on the Sanders farm. It was undisputed that all these facts were known to the defendants when they applied for the warrant. But the fact was in dispute whether the logs and posts were upon the Banders farm before the plaintiff became a tenant, and whether all of them were not cut by him — the posts, pursuant to the arrangement that they were to be used by him in repairing fences; and the logs, pursuant to the agreement by which they were to be Ms for the labor. If the logs and posts were cut by him, and had always been in Ms possession, under such an arrangement as he testified to, there was net probable cause for his prosecution; and upon such facts he could hot technically be guilty of larceny, however dishonest or fraudulent Ms conduct may have been in appropriating the property to Ms own nee. According to this theory, he was a bailee, and at common law Ms acts would be but a breach of trust. Whether lie could have been pursued for embezzlement under any of the statutes of Hew Jersey is a doubtful question, (1 Rev. Laws, § 44, par. 162,) and need not be considered. The fact whether the plaintiff had ever been in possession of the property as bailee was one within the personal knowledge of the defendants. One of them knew whether it was true, or not, that there had been such an agreement as was testified to by the plaintiff in regard to cutting the posts and logs; and, upon the theory that they were acting in concert, the knowledge of one of the defendants was imputable to the other. If they had been strangers to the agreement the question might have arisen whether there was any reasonable cause to believe that, the plaintiff was a. bailee; but, as it was, they were chargeable with knowledge of the fact, and, because of its existence, that he was not amenable to the charge of larceny. Because the vital fact, without which there was no larceny, and no probable cause to believe the plaintiff guilty of that offense, was in doubt, and presented a fair question for the jury, the trial judge correctly refused to take that question from them. There was consequently no error in Ms refusal to direct a verdict for the defendants!.

If, as the testimony on the part of the defendants tended to show, the plaintiff was noc a bailee of the property at the time he carried it away, and appropriated it to Ms own use, the defendants, in our judgment, were entitled to the unqualified instruction to the jury that the plaintiff had not established want of probable cause. No element in the facts, that one being found to exist, was wanting to induce a reasonable man to believe that the plaintiff had larcenously taken the property of Mr. Sanders. The circumstance that the property was not taken clandestinely was not controlling. He bad taken and appropriated it to his own use without color of right, and without permission. The felonious quality of the act was incapable of direct proof, but the patent facts authorized the inference that the plaintiff had taken the property with intent to defraud Mr. Sanders. Instead of sucb instruction to the jury, the trial judge first left it to them to find whether the plaintiff- had established want of probable cause, thus leaving them to decide whether the facts proved constituted probable cause. This was error. Bulkeley v. Smith, 2 Duer, 261. And this error was supplemented by another, in the instruction that the plaintiff had shown want of probable cause if the jury found that the defendants had not fairly stated the case to their counsel. It was not at all controlling upon the question of probable cause whether the defendants had or had not acted on the advice of counsel, or procured that advice in good faith or unfairly. If they proceeded in good faith upon the advice of counsel, given upon a full representation of the facts, the defendants had an independent defense to the suit. But, whether they did or not, they were entitled to a verdict, if the evidence did not satisfy the jury that the plaintiff was not guilty, and was not apparently guilty when prosecuted, of the offense with which he was charged. In its hearings upon this defense, what was stated or omitted to Toe stated by the defendants to their counsel was only important as it tended to prove or disprove the real facts, and suggest malice. By the instructions given and withheld the defendants were practically deprived of the benefit of the defense of probable cause. The exceptions sufficiently reach the errors in the instructions, and the errors should lead to a reversal of the judgment. The judgment is reversed, and the action remitted for a new trial to the court below.

SHIPMAN, Circuit Judge,

(dissenting.) I dissent from the result to which the court came in this case, but not from tbe correctness of the abstract rules of law which are stated in its opinion. I dissent because my examination of the record leads me to the conclusion that those rules have no adequate relation to the questions upon which the case was tried in the circuit court, and upon which it turned. The defendants put the strength of their defense upon the alleged fact that in ignorance of law, and seeking information as to the proper course to pursue, they fairly presented the facts to a competent lawyer, and acted upon his suggestion and advice. The defendant Charles W. Sanders testified that before he saw the lawyer he had no knowledge or information as to whether the facts constituted a ground for a criminal complaint; that he made no suggestion, in any form or shape, that criminal proceedings should be taken; that the suggestion came from the lawyer, solely. In reply to the question whether lie believed, on the day when the lawyer was consulted, that the posts had been taken with felonious "'.feel, he said:

•■Lev!, by advice of counsel. Question. You believed so because your counsel advised ? A. That is it exactly. Q. Did you ¡between the day you made the complaint that Mr. Palmer had stolen those posts feloniously? A. No, I did not believe anything about it until I saw my counsel.”

The defendants thus substantially placed their case, as to the probable cause which they had for ins li biting the criminal complaint, upon their can lion and care in obtaining legal advice, and submitting to counsel the question of their further action. The charge was full, in accordance with the repeated requests of their counsel in this regard. It is to be read in the light of the issue which was actually before the jury, and it is apparent that the judge charged the jury upon the points actually, and, not theoretically, in issue. Whether there were reasonable grounds of suspicion, which should warrant belief in the plaintiff’s guilt, arising from the facts which had come to the defendant’s knowledge, apart, from the kuowledge and advice which they received from the lawyer, was a question which was not actually in the case. The first error which the «curt finds was committed was not, apparently, excepted to. The necoad, for the reasons already stated, did not exist.  