#### *Maddox v. Jackson.

Argued Wednesday, October 25th, 1815.

i ilalicious Prosecution — Probable Cause — Evidence —Commitment by Magistrate.* — A magistrate’s committing a person accused of felony, or binding him in a recognizance to appear at court and answer the charge, is sufficient evidence that the prosecution was with probable cause; although the person accused was acquitted by the court, unless in his action for malicious prosecution, he can prove, by other evidence, that, in fact, the prosecution was without any probable cause.

2, Same — Same—Same—Instruction.-†—In case for a malicious prosecution, the court’s instructing the jury that a magistrate’s having committed the plaintiff, or bound him in a recognizance to answer the charge, “furnished sufficient evidence of the probable cause to induce the prosecution,” is not to be understood as excluding from the jury other evidence on the part of the plaintiff to disprove the probable cause inferrible from such commitment or recognizance.

On the trial of an action upon the case for a malicious prosecution, in the Superior Court of Prince William County, (the plea being not guilty,) the plaintiff, John Maddox, introduced in evidence to the jury, a search warrant under the hand of a justice of the peace, founded on the oath of the defendant, John Jackson, with an endorsement thereon, in the hand writing of another justice of the same county, stating, that the said warrant was tried before him on the 18th of September, 1809, and after a full investigation of the charges laid, therein adjudged, “that the within charged John Maddox, be recognized to appear at the next October session of the justices for the county aforesaid, on the first day of the said session, then and there to be dealt with according to law, &c.” Also a recognizance, dated the same 18th day of September, binding him, the said Maddox, accordingly, in the sum of forty dollars, and two securities for him in the sum of twenty *225dollars each, that he should appear to answer a charge of feloniously taking and carrying away, from the possession of the said John Jackson, eighteen head of hogs : — and it was admitted by the defendant, that, on the trial of the plaintiff for the offence in the said warrant and recognizance mentioned, he was acquitted by the County Court, and was not farther prosecuted. And the plaintiff farther proved by a witness, who was, and still is a justice of the peace for the same county, that the defendant, before the aforesaid warrant was issued, applied to him for a warrant against the plaintiff for felony, grounded on the same charge above mentioned ; but that he advised him that the facts did not amount to felony, but left him at liberty to pursue his civil remedy. And, thereupon, the defendant’s counsel moved the court to instruct the jury that the aforesaid * warrant, with the endorsement thereon, and the recognizance, furnished sufficient evidence of probable cause, to induce, on the part of the defendant, the prosecution on which this action is founded; which instruction was given by the court; whereupon, the counsel for the defendant filed a bill of exceptions ; stating therein the documents and other evidence before mentioned.

Verdict and judgment for the defendant, from which the plaintiff appealed to this court.

Wirt for the appellant.

This is a short case depending upon a bill of exceptions. The rule is established by the case of Crabtree v. Horton, (ante, p. 59,) that it is the province of the jury, and not of the court, to determine what is probable cause.

Wm. Hay, jr. contra,

acknowledged that the case of Crabtree v. Horton would be a sufficient authority to reverse this judgment, except that here the facts are agreed, which makes a difference between this case and that.

Wirt. The court had no right to instruct the jury upon the effect of the evidence. The doctrine of the English books on this subject may well be controverted. They say it is a mixed question of law and fact; — but I contend that, whether probable cause existed for the prosecution, is a mere question of a fact. If there be any doubt on the point, the courts in this country ought to lean in favour of giving the power to the jury. The decisions in England on this subject are nearly akin to lord Mansfield’s doctrine concerning libels. The tendency of the disposition of the courts in that country is to invade the province of the jury. Yet, even in England, the courts have never gone so far as the judge did in this case. In Reynolds v. Kennedy, 1 Wils. 232, the Court of King’s Bench did not usurp the power of deciding *on*facts, but only made what they called a legal inference from the facts stated in the declaration. In Crabtree v. Horton, in this court, the whole of the evidence on both sides *was stated; but in this case the bill of exceptions does not pretend to set forth all the evidence. The facts, too, are not agreed, but evidence only ; so that this was plainly an instruction upon the weight of evidence.

2. If the court had a right to instruct at all upon the point proposed, the instruction it did give was erroneous.

It has been doubted whether a person accused could sue if the magistrate discharged him, but the modern authorities are that he may sue, though never indicted, (a) It never has been doubted that the action might be brought where the prosecution went as far as an indictment, (b) Yet here the instruction is that the commitment by the magistrate, and binding over, is sufficient to bar the action, as shewing in itself that there was probable cause for the prosecution !

Upon the reason of the thing, what would be the consequence if this court should determine that the commitment is sufficient proof of probable cause ? Since it often appears, that no evidence but that of the prosecutor is heard before the magistrate, he would in such cases protect his malice by his own oath.

William Hay, jr. for the appellee.

Where the facts are agreed, all questions of law arising upon them may and ought to be decided by the court. Here the facts were virtually agreed. The search warrant, endorsement, and recognizance, are set forth in hasc verba in the plaintiff’s own bill of exceptions. It is the rule in England that, when the facts are ascertained, the court may instruct the jury whether they amount to probable cause. This court cannot alter that rule : — it can only be done by the general assembly ; for the reasons applying in England, apply equally here.

In Saville v. Roberts, 1 Salk. 15, it was decided that if the grand jury find the bill of indictment, the defendant shall not be obliged to shew probable cause, but the burthen of proof lies on the plaintiff to shew express malice. And the decision in Purcel v. M’Namara, 1 Campbell, 199, is to the *same effect.(c) I contend that the magistrate’s binding over the person accused, and calling a court for his trial, is equivalent to the grand jury’s finding the bill.

Wirt in reply.

Admitting Mr. Hay to be correct; yet the plaintiff might have introduced other evidence, (if the court had not prevented him,) to destroy the inference, by proving, that, in fact, there was no probable cause ; and I say the jury had the right to judge of that evidence. In a mingled case, of written and parol evidence, the court ought to give no instruction at all as to what is proved. But here the court has said that the commitment and recognizance are per se proof of probable cause ; thereby excluding farther evidence.

Monday, October 30th, 1815,

*

Malicious Prosecution — Probable Cause — Evidence-Commitment of Magistrate. — In Hale v. Boylen, 22 W. Va. 243, Judge Green, who delivered the opinion of the court, said; "Whatever conclusion may be reached, when the plaintiff has been pronounced guilty on a trial of a case on its merits by the j ustice, on the question, whether or not the prosecutor ought to be exempt in every case from an action for malicious prosecution, merely because the plaintiff has been found guilty and sentenced by a justice, when this judgment on appeal has been reversed, yet when the plaintiff has been only committed by a justice to answer an indictment, should one be found, and is after-wards acquitted or discharged, such commitment ought to be regarded as strengthening the weak legal presumption, which without evidence always exists, that every public prosecution is based on probable ■ causes, and it ought to exempt the defendant in an action for malicious prosecution from all liability, unless the plaintiff satisfies the jury by evidence of the existence of enough facts known to the defendant, when he instigated the prosecution, to suffice to show that the defendant had no probable cause for the prosecution; and if the plaintiff thus rebuts this, *prima facie,*strengthened though it be by the judgment of the justice, he is entitled to recover in his action. The defendant cannot justly shield himself from responsibility by merely producing the mitimus of a justice. He must meet the positive proof of the plaintiff, that the defendant acted without probable cause, by counter proof, or he ought to be liable in this action, if he acted with legal malice. This may be regarded as the settled law in Virginia. It was so expressly decided as far back as 1815 in *Maddox v. Jackson,*4 *Munf.*465, and, so far as I know, no judges in Virginia or in this state have ever disapproved of this case. The counsel for the plaintiff in error appears from his argument to think, that this case is inconsistent with that of Womack v. Circle, 32 Gratt. 324, in whjch a bare majority of the court concurred; but as I have said. I do not consider these cases as inconsistent, and it is obvious, that the majority of the court, who concurred in this last decision, regarded it as entirely consistent with the decision in 4 Munf. Por Judge Anderson, who pronounced the opinion concurred in by the majority of the court, while he does not mention the case in 4 Munf. does expressly approve of the principles laid down in it. He says: ‘But proof that the magistrate bound the party over to appear at court being an *ex parte*examination to inquire whether the plaintiff should be put on his trial is not conclusive evidence of probable cause.’ See 32 Gratt. 338. And Judge Staples, who pronounced the opinion of the majority of the court in that case expressly approves of this decision in 4 Munf. See 32 Gratt. 352. So as I understand, this case in 4 Munf. was either expressly or impliedly approved by all the judges in Womack v. Circle, 32 Gratt. 324. It was also, as I understand, followed by the court of appeals of Virginia in Scott v. Shelor, 28 Gratt. 891.”

To the point that the refusal of the magistrate to discharge the plaintiff raises a presumption of probable cause, the principal case is also cited in Brady v. Stiltner, 40 W. Va. 293, 21 S. E. Rep. 729; Womack v. Circle. 29 Gratt. 207, 32 Gratt. 352. See further, monographic *note*on "Malicious Prosecution" appended to Guerrant v. Tinder, Gilm. 36.

†

Same — Same — Evidence—Instructions.—See *footnote*to Crabtree v. Horton, 4 Munf. 59, which contains an extract from Vinal v. Core, 18 W. Va. 42, which cites the principal case.

(a)

 2 Viner 29, pl. 4, pl. 6; 1 Roll, 111, pl. 5, 6; 2 Chitly, 251, note (d.)

(b)

 1 Bac. Abr. 194.

(c)

 See also 9 East 361, same case; and Sykes v. Dunbar, 1 Campbell, 202, note (a.)

JUDGE BROOKE

delivered the court’s opinion as follows :

The court, considering the instruction to the jury stated in the bill of exceptions as confined to the warrant, the endorsement thereon, and the recognizance, and as not excluding from the jury the other evidence stated in the bill of exceptions, or any other *testimony*which might have been offered by the plaintiff to disprove the probable cause inferible from the aforesaid proceedings be*226fore the magistrate, is of opinion, that the said instruction was correct, and no invasion of the sacred trial by jury. The inference from the proceedings and trial before the magistrate is, founded on the legal presumption that magistrates and courts are indifferent, and without malice, as to the accused ; a presumption that-is equivalent to a rule of law, and which ought not to be unsettled by the variable verdicts of juries. The court therefore affirms the judgment