
    Masten vs. Deyo.
    
      prosectdion, the be7 instructed by the judge a.s valved in the probable °f what’ canst!" tutes a legal excuse for the defendant; and whether the facts relied on in the defence, on the supposition of their being found true by the jury, made out a probable cause.
    
    Where the circumstances retied on as evidence of probable cause are admitted by the pleadings, it belongs to the court to pronounce upon them; and where they are clearly established by uncontroverted testimony, or by the concession of the parties, and fully establish a probable cause, the court may refuse to submit the cause to the jury, and may order the plaintiff (¡o be nonsuited.
    If; however, ttie facts are controverted, if conflicting testimony is to be weighed, or the credibility of witnesses to be passed upon, the evidence must go to the jury, but still under the instruction of thejudge as to the law of the case.
    This was an action of slander and for malicious prosecutian, tried at the Orange circuit, in October, 1827, before the Hon. James Emott, one of the, circuit judges, The declaration contained eight counts in slander, and one for malicious prosecution in procuring the plaintiff to be indicted for perjury. The plea was the general issue. The sPeahinS °f the words charged was proved, and evidence in support of the count for a malicious prosecution was given. Testimony was introduced by the defendant to shew a probable cause for the prosecution complained of as malicious, which was rebutted by evidence on the part of the plaintiff. The testimony on this point was conflicting, and the credibility of witnesses came in question. The parties having rested, the counsel for the defendant insisted that the question of probable cause was a question of law for the court to decide, and asked the judge to charge the jury'that the plaintiff was not entitled to recover on his count for a malicious prosecution. The judge charged that as to the count for a malicious prosecution, he was inclined to believe there was evidence enough given of probable cause to protect the defendant, but that it was the province of the jury to decide upon it under the evidence given, and if there was not sufficient evidence, to take it into consideration in their verdict; and as to the other counts, he left it to the jury to give such damages as they thought proper under the circumstances of the case. "The jury found a general verdict for the plaintiff, with $200 damages.
    
      J. Sudani, for defendant, moved to set aside the verdict, and for a new trial.
    He cited 7 Cowen, 715 ; 8 id. 141; 1 Wendell, 140, 345.
    
      A. D. Soper, for plaintiff.
   By the court, Marcy, J.

The only question presented by this case is, whether the judge, at the trial, should not have decided that probable cause for the prosecution complained of was shewn, and not have left that question as he did for the jury to pass upon, without' other instruction from him than the remark, that he was inclined to believe there was evidence enough given of probable cause to protect the defendant. It is alleged, on the part of the defendant, that the judge erred in assigning to the jury the province of passing upon the evidence in relation to the probable cause. To sustain a count for malicious prosecution, it is not sufficient to shew that the defendant has acted maliciously in carrying on the prosecution against the plaintiff, but it must further appear that it was instituted without probable cause. Whether there was malice or not is a question conceded to the jurj > whether there was probable cause or not is said, on the part of the defendant, to be a matter exclusively for the court, and as such the judge should have disposed of it on the trial.

In the cases of Burlingame v. Burlingame, (8 Cowen, 142,) and Murray v. Long, (1 Wend. 140,) the judges at the circuits granted nonsuits because probable cause was shewn; and when these decisions came before this court, they were upheld and sanctioned; but it is not, I apprehend, to be thence inferred that the question of probable cause, in an action for a malicious prosecution, belongs exclusively to the judge at the circuit to determine. It is a common occurrence for judges at the circuit to decide, on the trial of a cause, that the plaintiff has failed to make out his cause of action, and to order a nonsuit; and this court, when the causes come here, often confirm these decisions : but it is nevertheless, beyond all dispute, the province of the jury to try issues of fact, and their rights are uninvaded and unimpaired by these decisions. If the testimony, uncontradicted and viewed in the most favored light, would not authorize a verdict for the plaintiff, a judge is not obliged to submit the cause to a jury; but he may, and it is generally conceded he should, order a nonsuit. If, in the exercise of this duty, a judge withholds from the jury a cause that should have been submitted to them, this court always interferes and orders a new trial. If the plaintiff’s testimony is not sufficient to support the issue, and the judge does not grant a nonsuit, but submits the cause to the jury, this court does not order a new trial because the judge did not nonsuit the plaintiff; but if the verdict is for him, it tiiay be set aside because it is found without or against evidence.’ This recurrence to the practice at nisi prius, in ordinary cases, will aid in correcting the misapprehensions in relation to the law as applicable to actions for malicious prosecutions. If a party prosecutes another on a criminal charge, it is a rule of law arising from considerations of convenience, justice, and even necessity, that the prosecutor shall be protected in so doing, however maliciously he may have acted, provided he had probable cause for preferring the charge. (Starkie’s Ev. pt. 4, 911, 912, and the cases there cited.) In such actions, the question of probable cause is all-important; and before the plaintiff can recover, it must appear substantively and expressly that the prosecution which he complains of as malicious was without probable cause. It is not enough for him to shew an acquittal from the prosecution, hut it must he made to appear by some positive evidence arising out of the circumstances, that the prosecution was groundless. Malice will sometimes be inferred from the want of a probable excuse for the prosecution, but this want of excuse will never be inferred from the most express malice. (1 T. R. 544. 9 East, 361, 3.) It is conceded on all hands that the question of probable cause is a mixed question of law and fact; and it would seem necessarily to result, that the jury are to say whether the circumstances relied on to shew probable cause really existed ; and the court are to decide, if they did exist, whether they constituted probable cause. A judge, therefore, who should assume the right to determine the whole question to the exclusion of the jury, would encroach upon their province.

It is contended by the defendant in this case, and the general proposition is laid down in several elementary treatises, and in some reports, as a well established rule of law, that the judge, and not the jury, is to determine whether the defendant had probable cause. (Bull. N. P. 14. Starkie’s Ev. pt. 4, 912.) It being, as all admit, a mixed question of law and fact, this general denial of the right of the jury to participate in its decision would establish an exception to that great and salutary principle which lies at the foundation of the right of trial by jury; ad qucestiones facti non respondent judices; ad qucestiones legis non respondent juratores.

In this light the court of appeals in Virginiavie wed the decision in the case of Crabtree v. Horton, (4 Munf. 59,) in which the court below, acting upon the rule urged upon us by the defendant in this case, had assumed to itself the entire disposition of the question as to probable cause. The president of the court, in giving his opinion in that case, says, the court below invaded the province of the jury in relation to the weight of testimony and the credibility of witnesses, in having decided that probable cause was proved to exist at the time the appellee commenced the suit in the declaration mentioned, without having the facts on which such question depended agreed by the pleadings, or submitted to the court by'the parties or the jury. This opinion was in effect reiterated in the case of Maddox v. Jackson, (4 Munf. 462.) The court of Tennessee divided on the question whether probable cause was to be passed on by the jury or decided by the court. (Kelton v. Bevins, Cooke’s Rep. 90.) Several recent decisions in the English courts shew that the law is not there understood as contended for by the defendant. In Brooks v. Warwick, (2 Starkie’s R. Am. ed. 342,) Lord Ellenborough left it to the jury to determine whether, under all the circumstances, there was probable ground for making the charge. A similar course was taken in the case of Isaacs v. Brand and others, (2 Stark. Rep. 167.)

From a consideration of the authorities on this subject, they seem to me to establish a rule which in no respect tends to confound the acknowledged functions of judges and jurors. Where the circumstances relied on as evidence of probable cause are admitted by the pleadings, it belongs to the court to pronounce upon them; and where these circumstances are clearly established by uncontroverted testimony, or by the concession of the parties, and they fully establish a probable cause, the court may refuse to submit the cause'to the jury, and order the plaintiff to be nonsuited; but this, I conceive, is done upon the same principle that a judge at nisi prius decides, in ordinary cases, that the plaintiff has not shewn enough to carry his cause to the jury, and not that it is a question not falling within the province of the jury. But nonsuits should only be granted in cases where there is nothing for the jury to pass upon, where there is no evidence of a want of probable cause, or where probable cause is so clearly established that if the cases had been submitted to the jury, and they had found verdicts for the plaintiffs, this court would, on application for that purpose, set them aside as verdicts found without or against evidence.

If, however, the facts are controverted, if in any wise the weight of conflicting testimony is to be ascertained, or the credibility of witnesses estimated, the evidence must go to the jury.

I believe the views here taken do not conflict with those decisions of this court which are cited as conclusive authorities for the defendant. In the case of McCormick v. Sison, (7 Cowen, 715,) the judge at the circuit submitted to the jury upon the evidence whether there was probable cause ; and when the case came here, this court said he erred in that particular. The case of Pangburn v. Ball, (1 Wendell, 345,) came up from the common pleas of Albany county. The court below charged the jury that if, from the testimony before them, they should be of opinion that the prosecutions before the justice were malicious and without probable cause, and that the defendant knew the facts to be so before and at the time of such prosecutions, they ought'to find damages for the plaintiff, otherwise they should find the defendant not guilty. Woodworth, J., speaking in reference to this charge, says, “ The court erred in submitting both the law and the fad to the jury.” If these decisions have been supposed to support the rule of law in a general application to actions for a malicious prosecution, that the court, without the jury, must decide upon questions of probable cause, I apprehend they have been misunderstood. They do not disapprove of submitting such questions to the jury, but they condemn the manner in which they were submitted. They by no means imply that the court ought to assume the province of the jury and pass upon the facts, in case facts are in dispute; but they disapprove of the surrender by the court of its own function—'the exercise of the right to pronounce the law to the jury. For this error (the omission by the court to instruct the jury on the law) the defendant has a right to ask a new trial. The case of Ulmer v. Leland, (1 Greenleaf’s Rep. 135,) was very similar to the present; and the exposition of the law on this subject by the court appears to me to be very correct, and directly applicable to the question before us. The cause was tried before Ch. J. Parker, before the separation of Maine from Massachusetts, and his decision was reviewed by the superior court of the former state. The chief justice left it to the jury to decide, as a matter of evidence, whether probable cause was fully made out or not. In relation to this point, the court say, that the defendant having insisted that the jury ought to be instructed as a matter of law that probable cause was fully made out, it was the duty of the judge to have stated his opinion distinctly to the jury, whether probable cause was or was not established if the evidence introduced by the defendant proved to their satisfaction the truth of the facts upon which he relied. As it did not appear that the judge gave any instructions to the jury upon the question of law involved in that case, the court for that reason granted a new trial.

The defendant in this case took a position somewhat similar, though he probably asked of the judge at the trial more than was proper for him to grant; but I think the judge erred in not giving the defendant the benefit of his exposition to the jury, of the law relative to what constituted probable cause in an action for a malicious prosecution. He should not have taken the cause from the jury, if there was the least doubt as to the existence of the circumstances alleged as the probable ground of the criminal proceedings against the plaintiff; but he ought to have instructed them as to the law involved in the question, and as to what constituted a legal excuse for the defendant, and also whether the facts relied on in the defence, on the supposition that they should be found true by them,made out a probable cause. It was the defendant’s right to have the jury instructed in their duty by the opinion of the court upon the question of law. This was not done ; on the contrary, it would seem that both the law and the fact were left, without any instruction from the judge, at the entire disposition of the jury.

New trial granted.  