#### Bostick *v*. Rutherford.

From Rutherford.

A discharge by a magistrate upon a warrant for a felony, is *prima■ fa-cie*evidence of the Want of probable cause in an action brought by the defendant against the prosecutor for a malicious prosecution.

In such action, the defendant may give in evidence in mitigation of damages, that *after*the prosecution instituted by him, the character of the plaintiff was bad, upon subjects unconnected with the felony for which he was prosecuted.

This wras an action for a malicious prosecution. It ap-. peared on the trial belowr, before Nash, Judge, that th6 defendant liad taken out a state’s warrant in 1821 against the plaintiff, charging him with stealing cattle: the examining magistrates dismissed the warrant and discharged the plaintiff. Up to the time of the charge made by defendant, w'hich was first made in 1819, the general character of the plaintiff wras proved to be good; and defendant then offered to prove that since the warrant had been sued out, plaintiff’s general character, on other subjects not connected with this charge, w'as bad; the Court rejected the evidence, and instructed the jury, that it was necessary for the plaintiff to show', to their satisfaction, that the charge against him wras malicious and preferred without any probable cause; that the dismissal of the warrant and the discharge of the plaintiff by the examining magistrates, were in *law7 prima fade*evidence of the want of probable cause; and when probable cause was wanting, the law inferred malice. It was also proved on the trial, *84by the magistrate who issued the warrant, that at the time of granting it, *Major R. Alexander,*who was administrator on the estate of the man whose cattle were alleged to have been stolen, advised the defendant not to take out the warrant, as he would have the costs to pay. The jury found for plaintiff, and defendant moved for and obtained a rule on the plaintiff to show cause why there should not be a new trial; first, for misdirection of the Court as to the law on probable cause; secondly, for the rejection of proper evidence as to plaintiff’s character; and lastly, for surprise in the testimony of the magistrate who issued the warrant. To support this last ground, the affidavits of defendant and of *Major R. Alexander*were filed; the first of which stated, that *Alexander*was so much intoxicated when the trial took place, that he was unfit to be examined; and farther, that no such advice as was deposed to by the magistrate had been given by *Alexander,*but directly the reverse. *Alexander*swore, that he did not recollect having ever advised defendant not to sue out the warrant; that he had no cause to do so, for he thought there were good grounds for a prosecution. The rule was discharged, and from the judgment rendered, defendant appealed.

The ground of surprise was afterwards abandoned here by *Mr. Wilson.*

*Wilson,*for the appellant. —

In an action of slander, the plaintiff may give in evidence his rank and condition in life to aggravate the damages, and the defendant may to mitigate them. *Lamed*v. *Buffington,*(3 *Mass. Rep.*546.)

As to the doctrine of probable cause: in a late case at nisi prius, the plaintiff, to prove the charge malicious which had been made by the defendant before the magistrate, produced the defendant’s information; Mr. Baron *Richards*observed, that such information being on oath, must be *presumed*to be true until the contrary was proved: and as the plaintiff gave no evidence to show his *in*
      *85nocence of the charge, directed the jury to find for the defendant. *Carter*v. *Thomas, (Norris’ Peake*223, *note.')*But where the oath has not been credited by the grand jury, it seems formerly to have been the rule, that the *onus*was on the defendant; but in the later decisions, it has been held that in this case also the plaintiff must give some evidence of the want of probable cause. (9 *East*361. 1 *Canvp.*199.) *Incledon*v. *Berry,*(5 *Taunt.*187.) *Byrn v. Moore,*(2 *Johns. R.*203.) *Secor v. Babcock.*

*Badger,*for the appellee.

1. The want of probable cause was *prima fade*estab-. lished by the discharge. This was adjudged by this Court, in *Johnson*v. *Martin,*(3 *Murph.*248.) As *authority,*that case is decisive. It was the duty of the Judge below to declare the law according to it. The Court can grant a new trial only for error of the Judge. If he was bound to follow the adjudication made here, it cannot be error. To grant a new trial on this ground, will be equivalent to saying, that the Courts below are not bound by the decisions of this Court, but must reexamine, and when they please disregard them. Is the Court prepared to publish such a doctrine to the inferior tribunals, which destroys judicial subordination, and prostrates the supremacy of this Court?

But laying aside the *authority*of *Johnson*v. *Marlin,*as an *opinion*it may be supported by the clearest and best established principles.

The decision of every judicial tribunal is evidence of the fact on which it is founded. It is evidence conclusive against parties and privies.

In prosecutions, the public, or sovereign, is the nominal accuser; but in fact, these prosecutions must often originate from private persons; and if they were at liber-, ty to use the name of the sovereign, and while actually conducting the presecution escape upon the ground that they were not parties on the record, the public law would *86be abused, without remedy, for the basest purposes of in? dividual malice or resentment. Hence it has been long , established, that the actual prosecutor shall be responsible, and he is considered *quasi*a party. The proceedings are evidence against him; not conclusive, because he is not strictly a party; but *prima fade,*because he is substantially a party. It is only upon this ground that the action for malicious prosecution can be sustained at all; for if the prosecutor is not, as to any purpose, deemed a party, how is he responsible for the proceedings in any Court?

The determination upon the prosecution is then evidence against the prosecutor of the fact determined; and if the same question has been decided in favor of the accused, which is now in contest, such decision is *prima fade*evidence. What is the question in this action? It is, was there probable cause or ground for the prosecution? What was the question before the magistrate? Exactly the same.

Probable cause means less than *prima fade*evidence of guilt, namely, such circumstances as warrant suspicion, *Locke*v. *U. States, (7 Cranch*339.)

Now if there be circumstances warranting suspicion, the magistrate must commit or hold to bail; if not, he must discharge. By discharging, he has determined there was no ground for suspicion, no probable cause; and, therefore, such discharge is evidence of want of probable cause. It is a judicial determination of the very question.

An acquittal by the traverse jury is no evidence of want of probable cause; not, as supposed on the other side, because evidence is heard from both parties, but because the acquittal does not proceed upon the want of probable cause, but the want of full proof of guilt.

So, of an ignoramus of the bill. It is not evidence as to probable cause. For probable cause will not warrant the finding of a bill; it requires *prima facie*evidence of guilt, which is more.- Thus the grand jury is always in*87structed upon a bill for murder, to find the bill if the fact of killing be brought home by proof to the party charged. To prove the homicide committed is *prima fade*evidence of a murder, and throws the burden of proof on the party charged.

The traverse jury deteiraine, is there full proof of guilt? The grand jury, is there *prima fade*proof? The examining justice, is there ground of suspicion, which is probable cause? Now the last is the very question here, and the discharge by the magistrate is therefore evidence of the absence of such ground of suspicion.

2. Was the evidence of the bad character of plaintiff, after the prosecution commenced against him, (his character before being good,) and upon matters entirely un^ connected with the felony imputed to him, competent evidence? The case has been considered by the other side as similar to the action for slander, and to ask the question seems to decide it. The amount of damages is to be regulated, in law and the nature of things, by the value of that which is lost or assailed, and that is the character, at the time of the slander uttered. This loss of character is evidence that the malice has taken effect; it is the very accomplishment of the slanderer’s design. To admit it as mitigation, is to determine, that a design to injure reputation followed by success, is less injurious than a fruitless effort to injure it. The proposition outrages all notions of justice and of reasoning; and if it be established as law, the spirit of defamation may indulge itself with impunity. No authority has been, nor can be produced on the other side. The rule laid down in the most respectable writers, as well as in adjudged cases, confines the evidence to character before and at the time of the slander. *(Phillips’ Ero. eh.*7. s. 3. *p.*146.) *Ld. Leicester*v. *Walter,*(2 *Campb.*251. and cases there cited.)

Hair Judge —

I am not disposed to disturb the case of *Johnson*v. *Martin,*in 3 *Murph.*248. In the incipient *88stage of a prosecution before an examining magistrate» much less grounds of suspicion will induce him to bind over the accused for farther trial, than will warrant ei-^¡ier £¡íe grand jury to find á true bill, or the petit jury to convict; and when the accused is discharged because a sufficient ground of suspicion has not been established against him, I can see no" reason why such discharge should not furnish *prima facie*ground for an action against the prosecutor. If there was probable cause for the prosecution, and owing to any unforeseen accident it had not been made to appear before the magistrate, he may show it in his defence. I therefore think a new trir al should not be granted on account of the first exception taken to the Judge’s charge.

As to the second exception, which relates to the rejection of evidenco offered by the defendant, I am of bpinion it ought to have been received. Evidence in this action may be offered for two purposes; 1st, as an item in the defence when the plea of justification is relied upon; 2d* for the purpose of mitigating the damages, when a complete defence cannot be made out. When it is offered for the first purpose, it would be improper that it should relate to the plaintiff’s character subsequent to the time when the prosecution commenced, because a knowledge of the plaintiff’s bad character after that time ought not to be considered as a justification of what the defendant did before he. acquired that knowledge. But if the plaintiff’s character was had before the commencement of the prosecution, evidence of it might be given, because that bad character, added to other circumstances, might be such a reasonable ground ot suspicion as to induce a person, not governed by malicious motives, to take out a warrant to apprehend the person suspected; but a person who possessed a fair character, although in other respects similarly situated, might not be considered so fit a subject for a public prosecution. It certainly requires stronger circumstances of suspicion to commence a prosecu-*89lion against a man of good character, than against amah of bad character. In this view of the case, character before the commencement of the prosecution may be gone into; but however bad it may be afterwards, it can be no justification of what was done before.

But supposing the defendant to fail in his plea of justification, the next question is, as to the quamusA of Ji-ra ages. There is no exact rule by which they can oe measured, as in case of debt or assumpsit; but the inquiry of the jury must be directed to all the circumstances of the case, in order, as well as they can, to fix upon a rule. In order to ascertain the amount of injury done, they may inquire into the character of the person who complains that he has sustained the injury. If his character is good, tire damages ought to be greater; if his character is bad, he certainly, has not so much cause to complain, and the damages ought to be smaller. In this view of the case, I think the testimony ought to have been received as to the •character of the plaintiff. I will illustrate what I have observed by a familiar case. Suppose a man indicted for a malicious prosecution, the jury, whose province it is only to bring in a verdict of guilty or not guilty, ought not to hear evidence of the bad character of the person supposed to be maliciously prosecuted, after the prosecution commenced, because that would be no justification for the prosecution; but if the same evidence went to character before the prosecution, they ought to hear it, for that, added to other circumstances, might be a justification, but the Court, when they fixed the fine, provided it was to go into the pocket of the injured party instead of the public treasury, might inquire into character both before and after the prosecution.

I will make another remark in this case. If the evidence which the defendant wished to offer in this case, originated from the prosecution which turned out to be malicious, the damages ought on that account to be in*90creased; if it spring from other sources unconnected with they ought to be diminished. ** J **

Henderson, Judge, concurred with Judge Haix in granting a new trial.

Tayior, Chief Justice,

on one point differed with his brethren, and gave his opinion as follows:

This is an application for a new trial, on two grounds, viz. ofjnisdirection of the Court in point of law; and the rejection of evidence offered by the defendant as to the plaintiff’s character.

1. The principal ground of this action is, that a legal prosecution was carried on without aprobable cause, and this must be expressly proved, and cannot be implied; hut when this is established, malice is generally inferred from it; and both are necessary to support the action.

It was said, in the case of *Johnson*v. *Martin,*that a discharge by a magistrate after a full and fair hearing of the evidence, was a strong indication of the want of probable cause; and the position was then thought to be so obvious as to require neither authority nor argument for its support. (3 *Murph.*248.)

It is yet believed to be correct, since, in the absence of particular evidence of the manner in which the magistrate dischared his duty, it must be presumed, that he acted in the ordinary and legal maner; and that, upon examining the evidence in the case, he discharged the plaintiff, under a belief that the suspicion entertained of him was wholly groundless.

The duty of a magistrate on such an occasoin is thus described: *“*If, upon inquiry, it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in *such cases only,*it is lawful totally *to*discharge him, otherwise he must be committed to prison, or give bail.” (4 *Bl.*296.)

*91It is the general usage with us, not to discharge the accused, unless it appears that there is no probable ground to suppose him guilty, and in that case the discharge by the magistrate is lawful. The modern practice by magistrates in England has never been adopted here, nor is it by any means called for by the frequency or enormity of crimes. There a magistrate does not usually discharge the accused, unless it appear in the clearest manner that the charge is malicious as well as groundless. (1 *Chitty, Cr. L.*89.) Our practice obtains in some of the sister states; for where a person was arrested and brought before a magistrate on a charge made by another of a suspicion of *felony,*and the *justice*being satisfied that the suspicion was groundless, discharged him. It wTas held that an action for malicious prosecution would lie against the accuser; and that a magistrate, if he be satisfied that there is no cause for a commitment, may discharge the party accused. (2 *Johns.*203.)

It is said to he a bad rule that will not work both ways. Let us apply this test to the inquiry, what would be the effect of the magistrate’s committing a person accused of felony, or binding him in a rocognizance to answ'er the charge? Clearly in an action brought against the accuser for a malicious prosecution, he might adduce thfe as *pri-ma fade*evidence of the existence of probable cause; and this, unrepelled by evidence on the part of the plaintiff, would be *sufficient*evidence, even in a case where the plaintiff had been acquitted on his trial in Court. It would,, be competent for the plaintiff, to introduce any other evidence to disprove the probable cause, which the magistrate’s proceedings proved; but these, unanswered, or answered only by the subsequent acquittal of the plaintiff on his trial, would show7 that the defendant had probable cause for the prosecution; from the legal presumption, that magistrates and courts are indifferent, and without malice, as to the accused. (4 *Mun.*465.)

For these reasons, I am of opinion that evidence of a *92discharge by the magistrate, shows the want of probable cause. But it does not preclude the defendant from pro- „ _ , , , „ *..*ving that he had probable grounds of prosecution; nor, as jj. seems> ¿¡oes the law exact from him the proof of legal grounds for the prosecution: for it will be sufficient to excuse him, if it appear from the circumstances of the case, that he really believed the party to be guilty, and was actuated by an honest anxiety to bring him to justice. *(Cro. Jac.*193.)

2. On the other question relative to the rejection of the evidence as to the plaintiff’s character, it is important to view, in connexion, the grounds and principles of this action, *for malicious prosecution,*and the rules of evidence as to an inquiry into character.

A very accurate writer on the laws of evidence, in treating on this action, states,-that the defendant under the general issue may justify the proceedings against the plaintiff, and show that he had a probable cause for instituting them. If the charge against him was for felony, the defendant will be allowed in his defence to give evidence of the general bad character of the plaintiff; for in this case, when the point in issue is, whether the defendant acted from malice, and without probable cause, it is material to inquire into the situation of the parties, and Whether the defendant had any reasonable ground for suspecting the’plaintiff. Now the notoriety of the plaintiff’s character for dishonesty, is a circumstance of suspicion not to be disregarded. (2 *Phil. on Ev.*115. 2 *Esp.*720. 2 *Stark.*69.)

According to this rule, evidence, as to the plaintiff’s character, is admissible only as throwing light upon the question of probable cause; and I have found no authority applicable to this *form*of action, authorizing its admission in mitigation of damages.

But in this case the evidence offered was as to the plaintiff’s character after the warrant was sued out against him; yet as it was proved to be good before that period,, *93and furnished no probable ground of justification for the defendant’s conduct, it is impossible that any could be derived from its subsequent falling off. Such evidence could have no tendency to throw any light upon the questions in issue, in the cause; and its only effect could be to mitigate the damages. But I am not prepared to say, in the absence of authority enforcing a different rule, that a man who was maliciously, and without probable cause, brought before a magistrate on a charge of felony, at a time when his character was good, ought to recover less damages, because after that charge, and possibly in consequence of it, his character had contracted some opprobrium. My own opinion is to affirm the judgment.

By a majority of the Court,

JUDGMENT REVERSED.