
    *James H. and Jacob Ash v. John Marlow.
    "“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 oifense with which he is charged,” is a good definition of the term “ probable cause.”
    ■« Probable cause ” is a mixed question of law and fact. The court must leave the facts with the jury, with instructions as to what is probable cause. 
      Proof that the examining magistrate “hound the accused over to court” is not conclusive evidence of “ prohahle cause.”
    If the defendant, in an action for malicious prosecution, would take shelter under the “ advice of counsel,” he must be prepared to show that ho communicated to such counsel all the facts bearing upon the guilt or innocence of the accused of which he had knowledge, or by reasonable diligence could have ascertained.
    A court has power to correct “ bills of exceptions ” at any time during the trial term.
    Error to the court of common pleas of Knox county.
    *In the common pleas, Marlow, plaintiff below (now defendant in error), brought an action of trespass on the case, against Jamos H. and Jacob Ash, for malicious prosecution. The declaration avers that James H. and Jacob Ash falsely and maliciously, and without any reasonable or probable cause, prosecuted the said Marlow before a justice of the peace, for having willfully and maliciously burned, or caused to be burned, four sacks of wheat, the personal goods, etc., of said James H. and Jacob Ash, and that said justice required said Marlow to enter into recognizance in. $1000 for his appearance before the court of common pleas, to answer said charge; that said James H. and Jacob Ash appeared as witnesses before the grand jury, but that no indictment was found, etc.
    The plaintiff below recovered judgment for $250, and costs..
    Motion for new trial overruled.
    Upon the trial in the court below, sundry bills of exceptions were sealed, upon which the assignment of error has been made. The errors assigned are as follows :
    1. The court erred in receiving the deposition and testimony contained in the bill of exceptions marked “A.”
    2. The court erred in receiving the testimony in bill of exceptions marked “ B.”
    3. The court erred in their charge to the jury contained in bill of exceptions “ C.”
    4. The court erred in receiving the testimony in bill of exceptions “ D.”
    5. The court erred in allowing the amendment to be made to bill of exceptions “A,” and contained in bill of exceptions “ E.”
    6. The verdict and judgment were against the law and the evidence.
    7. The judgment was given in favor of said John Marlow, whereas it should have been given in favor of J. H. Ash and Jacob Ash.
    The matters shown in the bills of exceptions, so far as material, are sufficiently stated in the opinion of the court.
    *Delano, Sapp & Smith, and Yance & Smith, for plaintiffs:
    The court erred—
    
      First. In improperly admitting evidence.
    
      Second. In their direction to the jury on the law of the case.
    Wo will first consider the ruling of the court upon the evidence:
    
      Bill of Exceptions “A.” 1. The notice was not sealed up and returned with the deposition. This the statute requires. Wright, 632, 156.
    2. The notice was improper, as it was a notice to take depositions in this and two other cases. It should have been a notice in on© case. Stat. 321, sec. 1. Exceptions to the deposition need not be filed, 'as proper notice must be proved before a deposition can be read.
    
      Bill of exceptions “ D.” This shows that Marlow was permitted to give parol evidence imjneaching the transcript of a justice, by him introduced, showing that the criminal prosecution against him was commenced August 4,1849. He proved by parol that the prosecution was not commenced until the last of October. This was erroneous. Douglass v. Wickison, 19 Conn. 489; Fry v. Hoyt, 12 Conn. 491; Steinberger, Adm’r, v. Steinberger, 19 Ohio, 106.
    
      Bill of exceptions “ E.” After the trial was through, the court made an order on the journal explaining away bill of exceptions “A.” This the court could not do. 43 Stat. 80, sec. 3.
    
      Bill of exceptions “ G.” 1. The court were too stringent in their definition of probable cause. The judge says: “I therefore adopt these definitions of reasonable or probable cause as in substance identical, and as applicable to that question in this case, and instruct you that the facts and circumstances in proof, and relied on by the defendants in this case to show the existence of reasonable or probable cause for prosecuting the plaintiff, must be facts and circumstances so strong in themselves as to lead and persuade an impartial, ^ingenuous, and reasonable man of common capacity, to believe that the plaintiff was guilty of burning the stacks.” Sutton v. Johnston, 1 Durn. & East, 308, 493; Smith v. McDonald, 3 Esp. 7; Ulmer v. Leland, 1 Maine, 183; 2 Greenl. Ev. 454, 455; 11 Ad. & El. 489; 3 Bing. N. C. 950; 5 Watts & Serg. 438; 4 Iredell, 389 ; 3 Hawks, 66.
    2. The court erred in not instructing the jury that the facts proved did or did not amount to probable cause. 1 Maine, 138, 139; 27 Maine, 266. See also 24 Pick. 84, 85; 1 Durn. & East, 309; 2 Stark. Ev. 912; 1 Term, 545; 1 Wilson, 232; 2 Moore, 80; 2 Starkie, 167; 4 Taunton, 616; 2 Taylor, 123; 2 Browne, 42; 3 Wash. C. C. 31; 4 Ib. 82; 4 Munf. 59; 7 Iredell, 280.
    3. The court erred in not directing the jury that the binding over of the plaintiff below by the justice was conclusive evidence of probable pause, and a complete defense, unless the integrity of the magistrate’s proceedings were attacked. Reynolds v. Kennedy, 1 Wils. 232; Hob. 226; 6 Mod. 262; Hard. 195; Whiting 
      v. Peckham, 15 Mass. 243; Wiltram v. Gonan, 14 Maine, 362; 8 Watts, 240; 4 Munf., (Va.) 462.
    4. We claim-that the court erred in their instruction as to the advice of counsel.
    After the main charge had been given, at the request of the plaintiff’s counsel, the judge instructed the jury as follows: “If ■after the advice of counsel, and before the delivering of the warrant, any new material facts came to the knowledge of the defendants, tending to lessen the probability of the plaintiff’s guilt, and which were not communicated to the counsel for his further opinion, then the advice previously given could be no protection to the defendants for thus delivering the warrant, and further prosecuting the plaintiff.” Stone v. Swift, 4 Pick. 389.
    Henry B. Curtis & Mitchell, Miller & Dunbar, and Morgan, for defendant:
    
      *Bill of exceptions “A.” The notice produced was identified by Dunbar, a witness sworn, and that will do.
    It is objected that the deposition contained matter that was incompetent.
    A general objection to a deposition on the ground of incompetency of the testimony contained in it, when part is competent, is bad. Beebe v. Bull, 12 Wend. 504.
    
      Bill of exceptions “ B>.” The point made is this : The transcript of the justice shows the issuing of the warrant “August 4, 1849,” and its return of service, “ October 30.”
    The questions put to the witnesses (the Scotts), in Indiana, are as to the statements made by the defendants below, or one of them, while in Indiana in October, 1849, as to the commencement of the prosecution. And the answers show that at that date, according to the defendant’s statements, the prosecution was not commenced, but would be as soon as they got back to Ohio.
    It will be seen by proofs, that the warrant was not delivered to the constable for execution until October 26; at which time the defendant, who had been in Indiana, was present.
    The court, in charging the jury, held that the testimony now excepted to, was “ not sufficient to contradict ” the record of the justice. So far as counsel had claimed the evidence for this purpose, it was distinctly overruled.
    The evidence was, with special instruction, permitted to remain to the jury for other purposes claimed by the plaintiff below.
    
      
      Bill of exceptions “ G.” 
       No exception, in fact, was taken to the charge of the court, until after the verdlet was rendered by the jury ; nor until after the motion for new trial had been made. And, although on its face the bill does not specifically show when the exception was taken; and, although ingeniously dated “ November term, 1850,” yet, that it was long subsequent to the rendition of the verdict, is shown by the Adates in the transcript of the journal entries,, and the filing of the several papers, viz : date of trial in transcript, December 23, 1850 ; date of filing motion for new trial, December 23, 1850 ; date of filing bill of exceptions “ G,” January 24, 1851. It is further shown to have been subsequent to the verdict and motion for new trial, by the fact that the misdirection of the judge was not assigned as one of the causes for now trial.
    “Exceptions to the charge of the court to the jury can not be taken after the verdict.” Anderson v. Hill, 12 Smede & Marshall, 679; Brutton v. Mitchell, 3 Barr, 44; Read v. McAllister, 8 Wend. 109.
    We also object to several of these specifications, upon the ground that no special request was made to the court, by the plaintiffs in error, to charge the law to be as claimed, on the particular point. It has been decided at this term, in the case of Jones v. The State of Ohio, that, to hold the failure of the court to charge upon particular points of law arising in the case a ground of error, the court should have been requested to instruct upon the point. The same doctrine is held in Law v. Merrills, 6 Wend. 268; 6 Cranch, 233; 2 Pet. 15.
    We will, however, proceed to consider the several specifications made, and see if this exception be well taken. And,
    1. As to whether the court erred in their definition of probable cause.
    
    We refer to 12 Conn. 229; Willis v. Noys, 12 Pick. 324; Munn v. Dupont, 3 Wash. C. C. 37; Wilmouth v. Monfort, 4 Wash. C. C. 82; Stowe v. Crocker, 24 Pick. 86 ; Merriam v. Mitchell, 1 Shep. 439; Harle v. Hawkins, 5 Humph. 357; Paris v. Starke, 3 B. Mon. 4; Foshay v. Ferguson, 2 Denio, 617; Rice v. Ponder, 7 Iredell, 390.
    Smith v. McDonald, 3 Espinasse, cited for plaintiffs, is cornmented on in 2 Stark. Ev. 495, note h, and is overruled in 3 Mo. 350, Greenleaf’s Overruled Cases, 337.
    2. The second objection to the charge of the court is, that “ the court erred in not instructing the jury whether the facts *relied on, to make out probable cause in law, do or do not amount to probable cause.”
    This question has been repeatedly made to the courts of England and of the United States; and it has been invariably determined that, although there are some cases in which a judge may be expected to tell the jury whether or not the defendant had probable cause, yet, when it consists partly of matter of fact, and partly of matter of law—and especially when the facts are, in whole or in part, deductions and inferences from circumstances, or are contested—the question is, properly, and we may add necessarily, loft to the jury, under tho general instruction of the court, upon the law. James v. Phelps, 11 Adol. & Ellis, 483; 39 E. Com. L. 150; McDonald v. Rooke, 2 Bing. N. C. 217; 29 Eng. C. L. 312; Taylor v. Williams, 2 B. & Adol. 845; 6 Bing. 183; Wineberger v. Shelly, 6 Watts & Serg. 336; Francis v. Smith, 1 Penn. St. 234; Nash v. Ord, 3 Brev. 94; Paris v. Waddell, 1 McMullen, 358; Pomroy v. Golly, Geo. Decis. (pt. 1) 26; Dodge v. Brittain, 1 Meigs, 84.
    3. The third exception to the charge of the court is, that the court erred in not instructing the jury, that the binding over by the magistrate was conclusive evidence of probable cause.
    The cases cited distinguish in unequivocal terms between the judgment of a court of final jurisdiction, and a binding over by an examining court.
    
    In Johnston v. Sutton, 1 Tenn. 505, 506, the ruling of the court in Reynolds v. Kennedy, is considered, and much qualified and weakened.
    Whitney v. Peckham, 15 Mass. 243, next cited by plaintiffs, was an action for malicious prosecution, in a case of assault and battery. The alleged prosecution was before a magistrate, who, under the laws of Massachusetts, had final jurisdiction to try and determine the ease. The justice found the party guilty, and assessed a fine against him; but, on appeal, *he was acquitted. It was held, that the justice “having final jurisdiction” in the ■case, and having found the plaintiff guilty, there was conclusive evidence of probable cause. 
    
    In the case cited from 14 Maine, 362, the justice had final jurisdiction, and that fact was relied upon by the counsel in the case, and doubtless influenced and controlled the decision of the court.
    4. We come now to consider the fourth specification of error in the charge of the court below—that the court erred as to the advice of counsel.
    
    It is conceded, that to shield one’s self by advice of counsel, a full, clear, and distinct statement of the facts, known to the prosecutor, must be made.
    Can it then be pretended, that, after receiving this advice and taking out the warrant, and new material facts have come to his knowledge, the prosecutor will be protected against a subsequent delivery of the writ and arrest of the defendant, under the shield of advice obtained before the new matter came to his knowledge ?
    
      Bill of exceptions UE.” It is contended by counsel for plaintiffs in error, that the court had no power to correct a mistake in their record, made at the same term, if it happen to be in a bill of exceptions.
    It has been the frequent practice of the courts of this state to correct mistakes, or misstatements, in bills of exceptions. 10 Wend. 254.
    We also refer to the following authorities:
    “The inferior court, at any time during the term, may supply a defect or omission in a bill of exceptions, by statement on the record.” Givens v. Bradley, 3 Bibb, 195.
    *“ If a bill of exceptions is taken to the ruling of the judge admitting certain evidence, yet, if no evidence is given under the ruling, the bill ought to be given up.” Bunting v. Allen, 3 Harrington, 299.
    
      
       “ The question of probable cause is a mixed proposition of law and fact: whether the circumstances alleged to show it probable or not probable are true, and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law. It therefore falls within the legitimate province of the jury to investigate the truth of the facts offered in evidence, and the justice of the inferences to be drawn from such facts; whilst at the same time they receive the law from the judge that, according as they find the facts proved or not proved, and the inferences warranted or not, there was reasonable and probable ground for the prosecution or the reverse; and this rule holds, however complicated and numerous the facts may be.” Broom’s Legal Maxims, 45, citing Johnstone v. Sutton, 1 T. R. 544, 545, 547; Blanchford v. Dod, 2 B. & Ad. 179; Reynolds v. Kennedy, 1 Wils. 232; James v. Phelps, 11 A- & B. 483; Panton v. Williams, 2 Q. B. 169, 194; Peck v. Boyes, 7 Scott, N. B. 441; Michell v. Williams, 11 M. & W. 205; Bushell’s case, Vaugh. 147; and see Pangburn v. Bull, 1 Wend. 345; Masten v. Deyo, 2 Wend. 424; 7 West. Law Journal, 397.
      To sustain a suit for malicious prosecution, it must have been malicious without probable cause, and have been ended. Benjamjn v. Garee, Wright's S. C. 450 ; Anderson v. Buchanan, Wright’s S. C. 725. A defendant may show the charge true, as probable cause, even though the prosecution alleged to ba malicious was unsuccessful. Ib. 725. If a justice of the peace be sued for maliciously issuing execution, evidence must be given of his acting without authority; it will not be presumed. Perry v. Gilleland, Wright’s S. C. 38.
      Where an affidavit was made charging crime, which charge was the subject of an action for malicious prosecution, and the declaration stated the substance in general terms of the affidavit, as dated on or about 24th of May, the affidavit date, 16th May of the same year, is competent evidence. Potts v. Eider, 3 Ohio, 70. ■ Case will lie for falsely and maliciously suing out a writ of attachment against the plaintiff’s effects, to their injury, though it be admitted they were indebted to the defendant. Sperry v. Warner, 9 Ohio, 103.
      A creditor’s false affidavit that his resident debtor absconds, is not probable cause for issuing an attachment against his effects. Ib. 103.
      See Murray v. Long, 1 Wend. 140; Gorton v. De Angelis, 6 Wend. 418; Burlingame v. Burlingame, 8 Cow. 142; Murray v. Long, 1 Wend, 420; Candler v. Petit, 2 Hill, 315.
    
    
      
       Geauga Iron Co. v. Street, 19 Ohio, 300.
    
    
      
       On the trial of an indictment for barratry, the order of a magistrate, requiring a person complained against by the defendant to be recognized for his appéarance before a court of competent jurisdiction, is not conclusive evidence of probable cause for making the complaint. Commonwealth v. Davis, 11 Pick. 433.
    
   Spalding, J.

The several bills of exceptions will be noticed in their order.

In bill of exceptions “A,” we find that the deposition of one-Levi Marlow, introduced by the defendant' in error, was objected to because the notice was not sealed up and returned with the deposition.

The bill shows that the notice was found among a large quantity of depositions on file in the cases that said paper referred to, and the certificate of the magistrate showed the deposition to have been taken under “ the inclosed notice.”

The proper service and transmission of the notice was proved by the oath of one of the attorneys.

The objection, if available in any case, was not well taken in this instance, as the strong presumption was that the notice had been inclosed in the deposition by the justice, and had become detached by constant handling of the papers.

It is objected that the notice, when produced, was found to-cover more than one suit. It certainly gave notice to the party of an intention to take depositions in the suit then on trial, and it is difficult to see what inconvenience could arise from taking, on the same day, and at the same place, other depositions between other plaintiffs and the same defendants, if there was sufficient time to perform the whole work. If the rights of the party were-prejudiced by reason of the attempt to take too many depositions within a short space of time, the showing of that fact would have had weight with the court. In this case, the defendants paid no attention to the notice. They did not appear at all, and, of course had no reason to object that too much was sought to be done.

These formal objections, however, should have been noted upon the depositions, within the rules of court, to have *entitled them to any regard. They came too late, after the jury was impaneled.

This bill of exceptions “A” also shows that the deposition was permitted to go to the jury, although objected to by defendant’s counsel as containing incompetent evidence.

By a subsequent entry upon the journal, the court corrected an error that had intervened here, and show that the deposition was-not, in fact, read as evidenee-in-ehief, at all, and but a single paragraph as rebutting testimony.

In bill of exceptions “B,” it is said that plaintiff’s counsel, on cross-examination, put a question to the witness on the stand, upon-an assumption that had no existence in the testimony in chief. The language was this : “You have stated that John Marlow said it must have been the Scotts that had burned the wheat, and yon have also stated that it was pretty much in the mouth of everybody that it was the Scotts. I now ask you what reasons were mentioned by any of the persons alluded to, for suspecting the Scotts ? ”

It is objected that the witness had said nothing about any conversation except the one he himself had with John Marlow.

Wo have but a small portion of the testimony given to us in the ' bill of exceptions, but, upon the supposition that the counsel for plaintiffs in error is correct in his statement of what the testimony was, there could be no impropriety in allowing the question to be put. The witness was on his cross-examination, and consequently much latitude was allowed to the examiner. But aside from that, he had said that Marlow threw suspicion on the Scotts. The attorney of Marlow might, with propriety, inquire, what reasons were given at the time for such suspicions.

The charge of the court is contained in bill of exceptions “ C.” The judge gives sundry definitions of the term “probable cause,” as laid down by distinguished jurists, and then, after directing the jury to ascertain how far the facts are proved, says: Apply to them the test, the rule of law which I have laid down to you. Ask yourselves conscientiously—‘Are the *facts and circumstances that we have found, so strong in themselves as to warrant an impartial, ingenuous, and reasonable man, of common capacity, with the caution usually exercised by such a man in the defendant’s situation, but not under the influence of any improper motive, to believe the plaintiff guilty of the crime charged against him?’ If they are sufficient to warrant that belief, in such a mind, that conclusion, when deliberately arrived at by you, will terminate your labors; and you will return to this court your verdict of not guilty.

“ If your conclusion on the facts relied on to show the existence of reasonable or probable cause, shall be adverse to the defendants, your deliberations will proceed.”

We have examined this whole charge with some care, and really can see no just cause for complaint by either party.

The judge has been somewhat diffuse in giving his views on “probable cause,” but they do not substantially differ from the sensible and concise definition laid down by the court in Munn v. Dupont, 3 Wash. C. C. 37. “What, thon, is the meaning of tho term ‘probable cause?’ We answer, 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.”

We are content to adopt this last, as the definition of what in tho law constitutes “ probable cause.” There is no force in the objection that the judge did not instruct the jury that the facts relied on by defendants below, did, or did not amount to probable «ausc. “Probable cause ” is a mixed question of law and fact; and if the facts are contested, the court must leave them to the jury with instructions as to what is “probable cause.” It is insisted, in the third p[ace, that the judge committed an error in refusing to instruct the jury, that the “ binding ,over ” by the magistrate was conclusive evidence of probable cause. It is sufficient to say, that it is the opinion of this court that the judge went far enough when he said to the jury, that after an exhibition of the affidavit, warrant, and ^transcript of the justice’s docket, showing that the accused was bound over to court, it was incumbent on the plaintiff below to show affirmatively that there was no reasonable or probable cause for the prosecution. The notion could not be countenanced for a moment, that a “ binding over to court” by an examining officer merely, should be taken as conclusive evidence of probable cause. It was claimed in behalf of defendants below, that they acted under the advice of counsel in prosecuting the plaintiff. It appeared that the warrant was taken out on August 4, 1849, but the arrest was not made under it until the 30th day of the following October. The judge instructed the jury that “ if, after the advice of counsel, and before tho delivery of the warrant, new and material facts came to the knowledge of the defendants, tending to lesson the probability of the plaintiff’s guilt, and which were not communicated to the counsel for his further opinion, then the advice previously given could be no protection to the defendants for thus delivering the warrant and further prosecuting the plaintiff.”

This is the fourth specification of error in the charge of the court, and we are clearly of opinion that the instruction was right. If, under the advice of counsel, a person swears out a warrant against his neighbor, and, before he causes the arrest, shall ascertain his innocence of tho charge, it will be difficult to see by what system of ethics he can be justified in'depriving that neighbor of his liberty, even though he was protected by professional advice,, in taking out the warrant.

In bill of exceptions “D,” it is said that John Marlow gave in evidence a transcript of a justice of the peace, showing that the criminal prosecution against him was commenced on August 4, A. d. 1849; that he then gave parol evidence tending to show that Jacob Ash had made declarations in Indiana, in the month .of October, setting forth that he had not then commenced his prosecution against Marlow, but should do so on his return to Ohio. This, it is claimed, is impeaching a record by parol evidence.

The objection is really too trifling to merit serious refutation, *but it is very much in character with the rest of the case, as presented by plaintiffs in error. It became important to show that between the issuing of the warrant in August, and the arrest of the accused persons in October, the defendants below had become possessed of information that should have exonerated the plaintiff below from the charge preferred against him. The transcript of the justice was not impeached. The parol testimony was entirely consistent with the facts set forth in that documents It only served to show that Jacob Ash treated the prosecution as commenced at the time of the arrest, and not at the date of the warrant.

In bill of exceptions “E,” complaint is made that the court caused an entry to be made on the record, doing away with the-force of bill of exceptions “A.”

This matter has been already noticed. The court retains full control over every part of its record until the close of the trial term, and may, on any day and at any moment, cause corrections to be made, to comport with truth and justice, as well in bills of exceptions as in their own journal, which is signed every morning by the president judge. We are satisfied that the trial below, although excessively tedious, was nevertheless fair in every particular, and that the rulings of the court were consonant to law.

The judgment will be affirmed, with costs.  