#### Baldwin *vs.*Weed.

In an action for *malicious prosecution*forprocuring the indictment of the plaintiff for obtaining goods by false pretences, evidence that the plaintiff had been guilty- of conduct, which to men unskilled in the technical rules of law, would excite a well grounded suspicion that a crime had been committed, is sufficient to warrant a verdict for the defendant on the ground of the existence of *probable cause*for criminal prosecution, (a)

*129Thus, where a party who had been a member of a firm, obtaining goods from another after the dissolution of the firm and gave for the goods the accountable receipt of the firm, without making any representation whatever, the vendor parting with the goods upon hia *previous knowledge*of the existence of the firm, and not upon the assumption by the purchaser of a character which did not belong to him, it was held, that although an indictment for obtaining goods by false pretences did not lie, the conduct of the party was such as to alfovd *probable cause*for the prosecution, and entitled the defendant to a verdict in an action for malicious prosecution—and where under such circumstances a jury found for the plaintiff, the verdict was set aside and a new trial granted.

The omission of the complainant in consulting with the district attorney previous to submitting the case to the grand jury, to state the circumstances under which the vendor parted with his goods, does not destroy the defence.

In an action for *malicious prosecution,*damages for an abuse of the process of the law by cruel and oppressive conduct are not recoverable unless a count charging such abuse is inserted in the declaration; and such count, *it*seems, may be joined with a count for malicious prosecution.

This was an action for *malicious prosecution,*tried at the Saratoga circuit in May, 1835, before the Hon. Esek Cowen, then one of the circuit judges.

The plaintiff charged the defendant with having maliciously and without probable cause, procured him to be *indicted*for *obtaining goods by false pretences*from one James Sowden, on which indictment the plaintiff was tried and acquitted. It was also stated in the declaration, that the defendant had procured the plaintiff to be arrested in *Vermont,*on the requisition of the governor of this state, and to be brought here for trial. On the trial of this cause, the following facts appeared: The plaintiff, the defendant and one Wood, had been paitners.in the business of making and vending blacking, and transacted such business under the name of “ J. Wood & Co.” In the spring of 1883,' the partnership was dissolved, though it was [225] agreed between the parties that the materials on hand should be made up and vended by the plaintiff, who was also authorized to collect the debts due the firm. In September, 1833, the plaintiff called upon *James Sowden*to obtain a quantity of stocks and moccasins to s ell *on commission,*with which he was accordingly furnished, and for which he gave an accountable receipt signing thereto the partnership name of J. Wood & C., and immediately after-wards absconded. Sowden testified that at the time of obtaining the goods, the plaintiff made *no representation*whatever as to his being a member of the firm of J. Wood & Co., and that he let him have the goods on information obtained from Wood about three weeks previous to the transaction, that the plaintiff was a member of the firm; he further testified, that previous to the indictment of the plaintiff, he informed both Weed and Wood that he would not have parted with his goods but for the information so received from Wood, that the plaintiff was a member of the firm. The defendant appeared as a witness against the plaintiff before the grand jury, but previous to doing so, he had called upon the district attorney of Saratoga, and stated to him that the plaintiff had obtained the goods from Sowden by representing himself a partner of the firm of J. Wood & Co., and giving an accountable receipt in the name of the firm; but did not mention that Sowden had stated that' ho would not have parted with the goods but for the information derived from Wood. The district attorney expressed the opinion that the plaintiff would be convicted of an intent to defraud Sowden. The defendant, W ood, and one Johnson, appeared as witness before the grand jury, but Sowden was not called before them as a witness. It was proved on the trial, that Weed procured a requisition from the governor of this state for the arrest of the plaintiff in *Vermont,*that he was present at his arrest, and when he got him into this state, caused him to be fettered and manacled with irons and chains, and to be thus transported from Crown Point to Ballston. It also appeared that the sole object of the proceeding on the part of Weed, was to secure two small debts, amounting together to less than $100; that the plaintiff, to obtain his liberation from prison, executed a bond to the *130defendant for the delivery of property and payment of money to the amount of $700, and the defendant then *procured bail*for the plaintiff and promised that he would not appear as a witness against him, and would use his influence to have the prosecution dropped.

The judge charged the jury that there was no legal foundation for the indictment' as it charged the fraud to have been committed on Sowden, who had not been defrauded, as all the partners of the firm were liable to him; that he, however, thought the defendant ought not to be held responsible for not understanding the nice distinctions in the law relative to the dissolutions of partnerships and the differences between moral and legal guilt in the obtaining of goods by false pretences; that if the jury believed that the defendant had honestly stated to the district attorney all the facts of the case, as far as he believed them to be material, they ought to find a verdict in his favor; that it would be for them to enquire whether in his statement of the case to the district attorney, he had not willfully suppressed the fact of the information which Sowden received from Wood, that the plaintiff was a partner, and the influence which it necessarilj'’ must have had upon the mind of Sowden, for the consequence of such suppression might have been the advice *of the*district attorney that an indictment would lie, which he would not have given had all the facts been stated to him. They would, however, * perceive that to hold the defendant responsible in this view of the question, they must, consider him possessing a capacity to draw legal distinctions which rarely fall to the lot of common men, and were not without its difficulty with the legal profession. It was not enough that the defendant had *mistaken*the law; if he had acted honestly, he was not accountable; but if in his communication to the district attorney, he had wilfully *misstated*or *suppressed*material facts, knowing them to be material, he ought to be held responsible, and such damages should be awarded as they should think right in a case where there was manifestly evidence of malice; but he [227] cautioned them to lay out of view the proof of unreasonable severity which had been exercised in the arrest and detention of the plaintiff, for which there could be no recovery under the declaration in the cause. The jury found a verdict for the plaintiff for $500, which the defendant moved to set aside.

*J. Ellsworth*and *S. Stevens,*for the defendant.

*C. Loveridge*and *R. Bates,*for the plaintiff.

(a)

**The question of probable cause does not turn upon the actual guilt ór innocence or the accused, but upon the belief of the prosecutor, concerning such guilt or innocence. Hall *v.*Suydam, 6 Barb. 83. Whether the circumstances alleged to show probable cause or the c'mtrary are true and existed, is a matter of fact; but whether, supposing them true,, they amount to probable cause, is a question of law. *Id.*See 14 Wend. li)2 and note. Bcfikley *v.*Keteltas, 2 Seld. 384.

*By the Court,*

Nelson, C. J.

The material question here is, whether want of probable cause in the criminal proceedings against the plaintiff was sufficiently established on the trial of this cause. The leading principles involved in actions for malicious arrest and prosecutions, have been so often and so ably discussed both in England and this *country,*that they are extremely well settled. When there is no dispute as to the facts relied on, the question of want of probable cause is for the determination of the court; when they are controverted, or the preponderance of the testimony doubtful, it belongs to the jury, under proper advice as to the law (1 T. R. 545; 2 *Wendell,*424, and cases there cited). The want of probable cause is the essential ground of the action, and must be substantially and satisfactorily proved, and can not be implied (1 *T. R.*545; 1 *Wendell,*140).

It appears to me, the main question we have supposed involved in this case, turned altogether upon another which does not seem to have received the consideration that it deserved in the charge of the learned judge, namely, whether there had been a termination of the partnership concern between the plaintiff and the firm of J. Wood & Co. before’ he gave the accountable receipt to Sowden. If there had been, the act of the plaintiff was not only without authority in respect to the other members of the firm, but may have been a forgery on the part of the plaintiff. If there had not been a *131termination, then there was no pretext whatever for the charge of a criminal offence. After the dissolution of a firm, one of the partners has no more right to use the partnership name for his own purposes, than ii the firm never had existed. This is an obvious proposition. The authority he possessed to use it, grew out of the partnership contract; within the scope of it, one of the members of the firm could bind the whole. On the dissolution of the contract, the authority of course ceasedi It is true until due notice of the termination of this joint interest and authority, third persons who have innocently trusted the firm, honestly supposing it still continued, and having no good reason for believing the contrary, are not to suffer; and in such a case, where the security of the firm is given by one even after dissolution, as between the two innocent parties, the copartner, and the person confiding in the security, the former is most at fault; he should have seen to it, that the proper notice had been given to the public or individuals) and for this neglect the firm is still responsible. The authority of the copartners shall not be repudiated, because it would result in the perpetration of a fraud upon third persons. But this rule has nothing to do with the situation of the parties in respect to each other. It affords no authority or even pretext of authority, for the conduct of the one who thus pledges the security of the firm after dissolution. As to him, there is no firm, and no authority; there is not, as to third persons privy to it, much less can there be as to the members themselves.

Now, from the foregoing view, the question arises out of the statute against obtaining goods under false pretences, which was much discussed upon the argument, and by the learned judge in his charge; and the particular circumstance, namely, whether the defendant willfully withheld from the district attorney the fact that Sowden had previously made known to him that lie did not trust the goods to the plaintiff upon the representation made by him that he was a member of the firm, but upon previous information derived from Wood, and upon which particular circumstance the judge put the case mainly to the jury, if important at all, was certainly not controlling. Because, the facts disclosed to the district attorney, whether those [229] supposed to be suppressed existed or not, fairly presented a well grounded suspicion of the perpetration of a crime by the plaintiff, if a dissolution had in fact taken place. The circumstance that tlie law officer advised an indictment for a particular offence, and the grand jury found accordingly where the suppressed facts became material, and induced an acquittal, should not operate to the prejudice of the prosecutor. The advice could be of no importance, if the facts in truth afforded a reasonable ground of suspicion of a crime; the defendant might rely upon them for his justification; he had a right, and as a good citizen was bound in duty to go before the grand jury and disclose the facts upon his own responsibility; and if an acquittal followed for a defect in the indictment, or a misconception of the nature of the offence, a different one being charged from what the testimony warranted, it afforded no test of the innocence of the prisoner, or want of probable cause for the complaint. He may still be guilty of the crime imputed to him.

Forgery is “ the fraudulent making or alteration of a writing to the prej udice of another man’s right;” or, in other words, “ a false making, a making, *malo animo,*of a written instrument for the purpose of fraud and deceit” (2 *Russell,*292; 4 *Black. Comm.*247; 2 *East,*852; 2 *Leach, C. L.*785). Now, there can be no doubt if the plaintiff, never having been a member of the firm of J. Wood & Co., had signed the partnership name to the accountable receipt, the act would have been a forgery; the fraudulent intent would have been implied unless rebutted. In this case, the defence to an indictment for forgery must have been placed upon the authority to use the name of the firm (this is frequently resorted to in cases of forgery); the plaintiff, in the *132first instance, might have made out the defence hy proving the previous existence of a partnership; but .this would not be conclusive. The fact of partnership at the time might be disputed, and contradicted; and if the jury should have been satisfied that it had been dissolved by voluntary consent, he must have been in great peril of conviction. There would have [230] been an end of the authority; he would then stand on the footing of one who never had belonged to the firm.

As to the offence of obtaining goods by false pretences: By the 2 Revised Statutes, 677, § 53, every person who, with *intent to cheat or defraud another,*shall designedly by color of any false token.in writing, or by any other false pretence, &c., obtained from any person any money, personal property, or valuable thing, upon conviction, &c. The old statute was as follows: “ Every person who shall knowingly and designedly, by false pretence, obtain from *any other person*any money, goods, &c., “ with intent to cheat or defraud any person,” &c. The 30 Geo. 2, ch. 24, and also the 7 Geo. 4, eh. 64, provide that all persons knowingly, &e. who by false pretences should obtain from any person goods, &c., “ with intent to cheat or defraud any person or persons *of the same,”*that is, *of the goods, Sec., so obtained*by the falsehood and deception. The object of the English statutes (and ours were taken from them) was to protect persons from being defrauded of their money or goods, by the use of false tokens or pretences, which were frequently used to induce the weak and unsuspecting to part with them without an adequate consideration; The *person*from whom the goods are obtained must be imposed upon by the false means to constitute the offence. Lord Kenyon observed in *Young*v. *The King (3 T. R.*98), that the statute of 33 Hen. 8, c. 1, required a false seal or token to be used to bring the person imposed upon into the confidence of the other; but that being found to be insufficient, the statute of 30 Geo. 2, ch. 24, introduces another offence, describing it in terms extremely general. Ashurst, J., in the same case remarked, that the statute (30 *Geo.*2) created an offence which did not exist before, &c. The legislature saw that all *men were not*equally provident,, and this statute was passed to protect the weaker part of mankind. The materiality of the pretences which are laid in the indictment and the necessity of proving on the trial that they influenced the mind of the person to part with his property, clearly show that he must be defrauded, to bring the case within the statute (11 *Wendell,*557; *Russ.*& *Ry.*190; *Rex v. Hill, East, T.*1811, Bayley [231], J.; 2 *Russell on Cr.*311). The testimony of Sowden, therefore; necessarily produced an acquittal on the indictment found against the plaintiff. Though if he had not supposed himself secure in the liability of the firm for the goods obtained by the plaintiff he would probably have not found much difficult)' in giving a direction to the prosecution that would have resulted in a conviction. The goods were obtained on the strength of the partnership name; but Sowden having, as he supposed, a previous knowledge of the existence of the firm from Wood, Another partner, did not ask nor did the plaintiff make any representations on the subject, but simply signed the accountable receipt in the partnership name. It could not be said, therefore, that Sowden was defrauded by false pretences, within the meaning of the statute; there must be some'affirmative act inducing the confidence of the person defrauded.

But though the plaintiff was not *legally*guilty of the offence charged, he was *morally*guilty; he suppressed the truth when the goods were delivered, ,and asserted a falsehood afterwards, by means of which he obtained them. We have the testimony of Sowden that he would not have trusted thefii to the individual responsibility of the plaintiff, and they were, therefore, procured by the concealment of the fact, that the partnership had been dissolved; and it is more than probable, if he had signed the receipt in his own name *133the goods would have heen withheld till the partnership security had been formally given, notwithstanding the previous information of Wood. In *Story's case*(2 *Russell on Cr.*302; *Russ. & Ry.*81), the prisoner made no other representation to obtain the money on the order than to write his own name on the back of it. The judge at the trial advised a conviction, if the jury believed, from his conduct, he fraudulently assumed a character which did not belong to him, although he had made no false assertions. He had received out of the post office by mistake a letter directed to a person of the name of Sforer, and which contained an order for one pound on the postmaster. On presenting it for payment, he was told he must write his name on the back of it, which he did, and received the money. All the judges were afterwards consulted in the case, and they held the pris- [232] oner properly convicted of obtaining the money by a false pretence, because, by presenting the order for payment and signing it at the post office, he represented himself as the person named in the order. Now, in the case under consideration, if the plaintiff had signed and offered the partnership security as an inducement to Sowden to trust the goods to him without any other representations, and had received them accordingly, upon the above authority he would have been guilty. They would have been obtained by the false pretence that he was a partner, and authorized to pledge the security of the firm; or if not a partner, that he had authority to pledge it. In addition, therefore to the clear *moral guilt*of the prisoner—the procurement of the goods by actual *legal*fraud—the distinction upon which the case is taken out of the statute, is extremely nice, and would not readily, if at all, occur to one unpracticed in the law. Not that there was no attempt to commit the offence by the plaintiff—for that was clearly undertaken—but that it so happened, the person upon whom the attempt was made, having a previous knowledge of the false fact or pretence, was not therefore influenced by it when used by the prisoner; or rather he assumed a fact to be true, by means of this previous knowledge, which the prisoner knew to be false, and the falsehood of which he intended to communicate, and did so, by signing the receipt in the partnership name. As the false pretence was not, however, necessary under the circumstances, it did not have the effect required by the statute, and therefore the offence was not technically committed. The party acted upon his previous knowledge, and not upon the representations or conduct of the plaintiff.

Upon this view of the case, I confess I am unable to say there was a want of probable cause assuming all the facts to have been known to the prosecutor which were disclosed upon the trial. Here is moral guilt enough, and an exemption from legal guilt only upon a very nice and accurate discrimination of the facts and the law—such as can not be expected or required of a layman.(b) I can not say there was no reasonable foundation for [233] the prosecution. The goods were obtained by the false representation and conduct of the plaintiff by a suppression of the truth, and therefore not exactly within the statute, but so near to it that there existed a reasonable and well grounded suspicion of guilt; and the prisoner might better congratulate himself upon the good fortune of his escape from conviction of the crime, through the technicalities of the law, than to endeavor to realize a profit on the supposition the prosecution was commenced and conducted without reasonable foundation. The case of *Rex*v. *Stratton and others*(1 *Camp.*549, *n),*before Lord Ellenborough, contains a principle quite appli*134cable to this case. That was an indictment for a conspiracy for an alleged malicious prosecution of another under this. statute. Lord E. directed an acquittal on the ground, that the act for which the party had 'been indicted came so near obtaining money upon false pretences , that the prosecution could not he considered as being without any reasonable or probable cause; and consequently the ground of the conspiracy failed.

But while I am of opinion this action for a malicious prosecution can not he maintained upon the safe and established principles which govern it, I should regret if the defendant should escape without proper responsibility for the cruel, unnecessary and oppressive manner in which he caused the execution of the warrant of the governor of Vermont. This feature in the case has undoubtedly imparted much of the importance that has been justly attached to the suit; for without it, I can not think an action for a malicious prosecution would have been thought of. An action for trespass, assault and false imprisonment should have been brought, and was the appropriate remedy for the excess of authority and abuse of the process (c) (1 *Chitty, 185; 6 Bacon, 556, note, tit. Trespass; 2 Saund. Pl. and Ev.*515). If any doubt has heretofore existed whether case might not also be sustained, it is, I apprehend, removed by the revised statutes (2 *R. S.*553, § 16). The case of *Rogers*v. *Brewster*(5 *Johns. R.*125), seems also an authority independently of the revised statutes. The declaration should have contained a count [234] for the abuse of the process, and which would have reached this particular objectionable conduct of the defendant, so highly outrageous and indefensible. The court would probably yet permit a count to be added covering this ground of action.

On the whole, I am of opinion that a new trial should be granted; the costs to abide the event.

Mr. Justice Cowen, concurred.

Mr. Justice Bronson. The judge charged the jury very much at large; and although some of his remarks, when taken separately, may not be entirely accurate, yet, looking at the whole charge, it was I think, sufficiently favorable to the defendant. Believing that the jury were not misled by the remarks of the judge, I am unable to concur in the order for a new trial.

Whereupon the court ordered a new trial; the costs to abide the event.

(b)

**Good faith merely, in making a criminal charge against another, is not sufficient to protect the party from liability. There must be a reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautious man in the belief that the person charged was guilty, +o make out such a probable cause as will be a defence to an action for a malicious prosecution. Hall *v.*Suydam, 6 Barb. 83; 13 Iredell, 320; 17 Ala. 27.

(c)

 Ragsdale *v.*Bowles, 16 Alabama, 62,