
    SEARS vs. HATHAWAY.
    
      Fourth District Court for San francisco Co.,
    
      October, 1857.
    Malicious Arrest—-Probable Cause.
    Where a person institutes criminal proceedings, in order to compel the performance of a collateral thing, as to force the party, against whoam íhoy ero fcrougfet, to pay a 5ebi, in v.a actfoa by &e latter íbs- maliciosa mmecation, it is aot nociccai’y to show either vmmt of probable canoe, or ¡malice, on the part of the ps'ooecntos’. lia an action of tola matero the fifaiharg® by the committing magistrate Id prk.ia£e?/aii ovifienca of; /ant of probable ■Banna, sail throws apon the Sefenttot 6hs onvs ©f proving that be itaa probnWo canse.
    This rfon m brought io recover damages for an alleged malicious prosecution and Ms® Imprisonment, for which, is claimed theyem ©f 020,000. The ©orapfemt contains two ©cuntí, charging two dig tine! nets ©f teeypaay tor which ten thowrnd dd/Aro h claimed to such cases. The action springs from the Mecy of Gw-wsl! & 'Do. Upon to¡8 4Ai of April, 18h‘fr Ürowel and pMafrA v©-- errosfecl upon afSAv/if «A defendant, Hathaway, charging both, as copartners, with the offense of "cheating,” by obtaining goods, Wares, and merchandise, knowingly and willfully, by false pretenses and on the 7th of April, after an examination of Crowell before the police judge, the parties were discharged. On the next day, the 8th, the defendant, Hathaway, caused plaintiff and. Crowell to be again arrested, and charged “ that on the 4th day of April the erimé of concealing property, to detraud and delay creditors, was committed by J. M. Crowell and C. A. Sears,” and an extended examination was had before the police judge, into their affairs, who, after deliberating on the testimony in the case for two days, did, on the fifteenth day of April, hold Crowell to answer before the court of' sessions, for the offense charged, and a second time ordered, that Sears be dismissed.
    B is alleged that defendant, Hathaway, in causing both the above arrests, did the same maliciously, and without any reasonable or probable cause, and with the intent to injure plaintiff in his good name, fame, and credit. It is alleged that the other defendants herein joined with Hathaway, in willfully and maliciously prosecuting the aforesaid action, and confirmed all that the said Hathaway had done in the premises, against plaintiff, by agreeing to defray their, and each off their proportion of any and all expenses incurred thereby. And it is further alleged that by reason of said arrest and imprisonment, plaintiff suffered greatly in body and mind, aod was obliged to lay out large sums for counsel fees, and has suffered great loss and hindrance in his business, to the amount of $10,000.
    J. M. Crowell had been doing business as a Hour and grain dealer, on Clay street, under the firm name of J. M. Crowell & Co., and afterwards removed to Front street. About Dec. 13th last, plaintiff came to the store of Crowell & Co;, and talked of going in as a partner. An inventory of'stock was taken, and business talked about. A few days after this, plaintiff and Crowell both informed the bookkeeper that Sears would not become a partner. There was some evidence, however, that Sears subsequently represented himself as being engaged in business with Crowell. The firm name was never changed* the books were kept unchanged. Sears did the buying and selling, drew checks in the name of Crowell & Co., signed “ J. M. Crowell & Co., by C. A. Sears,” and all bills, receipts, and purchases in the same manner. On April 3d, 1857, J. M. Crowell & Co. were attached and failed.
    It also appears that considerable flour and grain had been purchased by Sears, for J. M. Crowell & Co., from these defendants, on the 1st, 2d, and 3d of April, immediately preceding their failure, and sold by them (some on the same day of the purchase) at prices much below their value. On the 3d, in the afternoon, Crowell bought and paid cash for a homestead, $4,000. There was some evidence adduced to Show that the other defendants in this action agreed and united with Hathaway, to pay their proportion of the expense of counsel fees, and other disbursements, in the several criminal prosecutions against Crow-ell and Sears.
    The following instructions were given- at the request of the plaintiff.
    1st. A discharge of Sears by the examining magistrate is in itself presumptive evidence of want of probable cause for the prosecution,
    2d. If there was a want of probable cause the law infers malice.
    The following were asked and given for the defendants.
    1st. Unless the jury find there was such an agreement between Hathaway and the other defendants to this action, as amounted to a conspiracy, for the malicious criminal prosecution of the plaintiff, they must find for such defendants.
    2d. Unless the jury is satisfied that the affidavits for the arrest of plaintiff, by Hathaway, were malicious, and made without probable cause, they must find for the defendants.
    3d. If the jury find that the arrest of Sears, by Hathaway, was without probable cause, but not instituted maliciously; or if instituted maliciously, yet with probable cause, they must find for defendants.
    4th. That the discharge, by a committing magistrate, is not conclusive evidence of either malice or want of probable cause.
    Plaintiff’s counsel entered a discontinuance as to defendants Conree and Berry.
    After plaintiff rested, defendant, Hathaway, moved the court for a nonsuit, on the ground that plaintiff had not shown either malice or want of probable cause, in the arrest of plaintiff, and the after proceedings taken thereon.
    Motion denied by the court, on the ground that a discharge by the committing magistrate is prima facie evidence of both, and throws the 
      @¡m® upo® defendants, of showing want of ami®® and probable ©auss. Defendants, little, Moorehouge, Hraií, HírsshñeM, and ©oidoai, moved fte eowt for a nonsuit, om the gromnd fist the plaintiff’’® evi.©loase was msumejems m sssraan me aMemmeM ox ms eomníamr, as v®
    Motion Seraed by the eowt, on the ground that the sufficiency of ©vMemce is always a question for the jury to determine.
    In the coras® of defense defendants offered <v. B. Tingley, Dsq., an cábmey and ©oimsellor, of this State, to prove that defendant, Hathaway, acting in good faith, made a full, fair, and impartial statement of ft® facts constituting Ms charge against plaintiff, in the polis© sotó, ft said attorney, and was by him advised to adopt the course pursued fterain j whereupon plaintiff" objected, on the ground that advice of ©orates! may only b® offered in ©videne© when specially pleaded m defatidant’o answer. Objection sustained by ft© coart.
    JL Ooofe sad Jf.-D. Sawyer, for plaintiff.
    
      JF&cIey $ for defendants.
   Hager, J.

To sustain am action of ibis kM,.ít is necessary, that plomtiff should prove, 1st. That he has been prosecuted by the defenderte, and that the prosecution is at an end, 2d. That the prosecution was instituted malclomsly, and without probable cause. 3d. That the plaintiff hao »teln®d damage.

R appears by the evidence that plaintiff was twice arrested, on .& ©rimimal ehrage, upon am affidavit made by one of the defendants, taken before a magistrate, and after @n examination into the matter by him, was discharged. This is presumptive evidence of want of probable ©asses, ooSciemt ft throw upon the defendants, who were instrumental ha procromg the arrest, the mim of proving the contrary.

Probable cause for such a criminal prosecution, is such conduct on ft© part of ft© accused, as may induce the inference that the prosecution was undertaken from public motives, or such a reasonable ground. @f BBgpidom, supported by circumstances sufficient to warrant a essuti®« man in believing, that ft® party is guilty of the offense charged ogssmst him,

The question, probable cause, is composed of few -and fact. R to your province to determine whether the circumstances alleged are trae ®r not, and for the court feo determine whether or mofe they amount fe® probable cause.

The questions for the consideration of the jury will he to determine If defendants had, good reason, m cautious mem, fio believe that a partnership existed between plaintiff and Crowell. If defendants did so believe, and had sufficient reason to suppose either party guilty. It aright make ©ufe a defense. The ease turns on feh© question of partnership. On the first occasion Sears was arrested ©m am affidavit, charging Mm alone with being a cheat, The question of partnersHp, would, therefore, have mo connection with that count of feh© complaint—It waa a question of probable cause, and feh© mfeersaoma of defiéndante im procuring plaintiff’s arrest. .There are few© descriptions of male©, radie® in fact and malic® im law, The former, Im eoramiooi acceptation, meanc 111 will against a person; the latter measte a sreosagM eefe done IeMetionally. This Is a question for you to pass upon.

If the prosecution in feh© police court was undertekea for the pap-pose of compelling illegally the plaintiff to d© a collateral thing, suck as to give up Ms property, it is nofe necessary for the plaintiff, in rock a ease, to prove that the prosecution was instituted without probable cause. The criminal and civil laws sure distinct branches of jurisprudence, and a party cannot be permitted fee employ the former, which le calculated for the punishment of offenders, in order to attain the ende for wMeh the latter Is instituted. Criminal prosecutions are, or should foe, for the benefit of society at large, and any attempt fe® defieefe them from that object, either to gratify privafeo malee, or fio subserve private ends, should not be encouraged.

Damages should be awarded on the principle that plaintiff Is entitled to indemnity for the peril occasioned to Mm in. regard fi® Mo liberty, feh® injury to Ms reputation, Ms feelings, and Ms person, and for fehe expenses to which, he has necessarily been subjected; and although e@ evidence has been given of particular damages, jefe you are not therefore obliged to find nominal damages merely, bufe snsy rack® them proportionate to the injury. The jury found for plaintiff $4,000 damage.  