#### George E. Cabiness *v.*Thomas Martin *et al.*

Probable cause is such a suspicion as would induce a reasonable man *íq¿*commence a prosecution, and where a witness swore, that a magistrate upon the return of a state warrant, said that he would commit tire defendant unless,” &c. ; and the magistrate bad' in fact said Ke *“*would bind the defendant over unless,” &c.: It was held; that the variance did not constitute probable cause for a prosecution for perjury.

This was an action on the case, in which the plaintiff declared against the defendants for maliciously, and without probable cause, prosecuting him for perjury. — . Upon *not guilty*pleaded, the cause was tried before Don-nei.Ii, Judge, at Rutherford, on the last Spring Circuit.The perjury for which the defendants had the plaintiff arrested, was alleged to have taken place on the trial of an indictment against the defendants, for a conspiracy to extort money from one *Horde;*and it appeared that Horde, having been arrested upon a charge of larceny, and brought before the defendant *Martin,*who was a justice of the peace, had been discharged upon his surrendering a bank note of three dollars to the person who sued out the warrant against him, and also executing to the prosecutor his own promissory note for *%*8,75._ On the trial of the indictment against the defendants, the plaintiff swore, that the defendant *Martin,*had told *Horde*that unless he gave his note, and surrendered the bank bill as above mentioned, he would send him to jail. In this, it was alleged the plaintiff swore falsely, and it was contended., that the defendant had said, that unless he, *Horde,*gave his note, &c. that he should bind him to *455,appeav at court. Much testimony was offered on both sides, on the trial, which it is not necessary to state. *'*

• The presiding judge charged the jury, that if the plaintiff had sworn, on the trial of the indictment against the defendants, ■ that *Martin*had said he would send *Horde*to jail, by a mistake, yet if it was false, it amounted to probable cause and justified the defendants in suing out the warrant against him for perjury.

A verdict was returned for the defendants, and the plaintiff appealed.

*Gaston,*for the plaintiff.

*Badger, contra.*

Daniel, Judge,

after stating the facts, proceeded as follows:

We are of opinion, that if the facts were such as are .contended for by the defendants, they would not make out a probable cause, to authorise their issuing a state’s warrant, and prosecuting the plaintiff for perjury. In the case of *Munns*v. *Dupont,*(2 *Brown Rep. Ap.*65,) Judge *fWashington in*delivering the opinion of the court, asks “what is the meaning of probable cause. I understand it to be the existence of circumstances “ and facts, sufficiently strong to excite in a rea- “ sonable mind, suspicion, that the person charged with “having been guilty, was guilty; it is a case of appa- “ rent guilt, as contradistinguished from real guilt. It. “ is not essential that there should be positive evidence “at the time the action is commenced ; but the guilt “should be so apparent at that time, as would be suliici» “ent ground to induce a rational and prudent man, who “duly regards the rights of others as well as his own, to “institute a prosecution *;*not that he knows the facts ne “ cessary to insure conviction, but that there are known “to him, sufficient grounds to suspect that the person ha “ charges was guilty of the offence.” The material question in the cause, on the trial of which the plaintiff was alleged to have committed perjury, was, whether the defendants had fraudulently conspired to obtain by illegal means, the money and property of *456*Horde.*In the ascertainment of the guilt or innocence of the defendants, on the indictment for the conspiracy, it was quite immaterial whether the plaintiff swore that the words used by *Marlin*were, that he would send *Horde*to jail if he did not give up the three dollar bill, and give his note for the balance, or whether he swore that *Martin*said, he would bind him over to court, if he did not give up the property. *Horde*had been arrested for laceny, and it was the duty of the justice, before whom the warrant was returned, to have bound him over to court, whether he was willing or unwilling to give up the money, if in the opinion of the justice, the evidence proved him guilty of the charge. But upon the question whether the defendants wished, by their oppressive conduct, to extort money from *Horde,*which in truth, was the fact that the plaintiff’s evidence was offered to establish, the words used by the magistrate in either way, viz: that he would send him to jail, or bind him to court, if he did not deliver the money, would have the same effect. The jury could not have been misled by the variance in the words sworn to by the plaintiff, from those that in fact were spoken by the magistrate. The difference between the words spoken by the magistrate, and the words which the plaintiff swore he made use of, was not sufficient to excite in the minds of the defendants a reasonable suspicion that he had committed perjury. If the justice liad said he would bind *Horde*to court if he did not give up the money, then the money must have been surrendered, or *Horde*must have gone to jail, if he had been unable to procure bail. We think the court and jury could not have been misled by the variance in the expressions used ; and it appears to us, that no reasonable mind could suspect that the witness was guilty of perjury. We therefore think, that the facts disclosed, did not amount to probable cause, and a new trial should be granted, which is done accordingly. ■

Per Curiam. — Judgment reversed.