Boyd v. Cross

Alvey, J., delivered the opinion of the Court. This was an action instituted by the appellant against the appellee and the Commercial and Farmers’ National Bank, for malicious prosecution and false imprisonment; the case being tried as for malicious prosecution alone. All the prayers on the part of the defendants, except the 7th and 8th, were conceded by the plaintiff. He also conceded that the evidence offered by him failed to make any case against the bank; and the Court, by granting the 8th prayer of the defendants, instructed the jury that there was no evidence of malice or want of probable cause as against either of the defendants, for the alleged malicious prosecution, and that, therefore, the plaintiff was not entitled to recover; and as this Court fully concurs in the correctness of that instruction, it becomes unnecessary to examine the questions raised by other prayers, whether offered by plaintiff or defendants.

To have entitled the plaintiff to recover for malicious prosecution, it was incumbent upon him to prove affirmatively, that he had been prosecuted, or that a prosecution had been instigated, by the defendants, or one of them; that such prosecution had terminated in his discharge or exoneration from the. accusation against him; and that such prosecution was both malicious and without probable cause on the part of the defendants. All of these propositions must concur, and be established by the plaintiff, to entitle him to maintain his action. If the evidence adduced be legally insufficient to be submitted to the jury to prove each and all of these elements of the plaintiff’s case, his action could well be pronounced groundless, and the defendant not be called on for his defence. ¹⁹⁷ Turner vs. Walker, 3 G. & J., 377; Cecil vs. Clarke, 17 Md., 508 ; Williams vs. Taylor, 6 Bing., 183; Wheeler vs. Nesbitt, 24 How., 544 . Malice is a question of fact for the jury, and its existence may be and most generally is inferred from the want of probable cause for the prosecution; but it does not necessarily follow that because there is an absence of probable cause, the defendant must have been actuated by malice.

The presumption of malice, resulting from the want of probable cause, is only prima facie, and may be rebutted by the circumstances under which the defendant acted. But from the most express malice, the want of probable cause cannot be implied. The want of probable cause is a mixed question of law and fact. As to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but what will amount to the want of probable cause in any case, is a question of law for the Court.

The jury, in our practice, are always instructed hypothetically as to what constitutes probable cause, or the want of it, leaving to them to find the facts embraced in the hypothesis. What will amount to such combination of malice and want of probable cause, as will entitle a party to maintain an action, says Chief Justice Tindai.l, (Williams vs. Taylor, 6 Bing., 183,) is so much a matter of fact in each individual case, as to render it impossible to lay down any general rule on the subject; but there ought to be enough to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Perhaps the most accurate definition of probable cause is that given by Judge Washington, in Munns vs. Dupont, 3 Wash. C. C. Rep., 31 , as being such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing the party accused to be guilty.

In this case, however innocent the plaintiff may have been of any intention to defraud either the bank or the parties ¹⁹⁸ whose names were forged, the presentation of the check, under all the circumstances, was well calculated to excite suspicion. The plaintiff was a stranger at the bank; and the bank was not the proper place to obtain information in regard to the genuineness of the check, or, if genuine, the circumstances under which it was drawn. The house of the firm whose name was forged, was but a short distance off, and was well known to the plaintiff; and it very naturally struck the bank officers as strange that the plaintiff did not apply there for information instead of presenting the check at the bank. The officers might well suspect that it was an experiment upon the bank; and the production of the letter, in which the check had been enclosed to the plaintiff, was most likely regarded by the officers simply as a cunning device to meet the contingency of detection of the forgery, inasmuch as it was not first placed in the hands of the teller to whom the check was handed.

The defendant, Cross, as the cashier of the bank, was certainly justified in sending the plaintiff, in the custody of the police officer, to the house of the firm by whom the check purported to be drawn, that he might be confronted by those parties, and that their statement could be heard in