defendant. A criminal suit is terminated (1) when the prosecution, if brought before a magistrate, has been dismissed, or (2) when, if preferred before the grand jury, that body has found no indictment; or (3) when, an indictment having been found, and the prisoner having been put in jeopardy, a verdict acquitting the prisoner has been rendered or is called for by law. Perhaps the prisoner should also have been discharged; but he is entitled to a discharge in all these cases.

§ 3. OF THE WANT OF PROBABLE CAUSE.

Supposing the plaintiff to have begun his action after the termination of the prosecution, it then devolves upon him further to establish the defendant's breach of duty by showing that he instituted the prosecution without probable cause.1 And this appears to mean that he ought to show that no such state of facts or circumstances was known as would induce one of ordinary intelligence and caution to believe the charge preferred to be true. Or, conversely, probable cause for preferring a charge of crime is shown by facts which would create a reasonable suspicion in the mind of a reasonable man.'

8

To act, therefore, on very slight circumstances of suspicion, such as a man of caution would deem of little weight, is to act without probable cause. For example: The defendant procures the arrest of the plaintiff upon a charge of being implicated in the commission of a robbery, which in fact has been committed by a third person alone, who absconds. The plaintiff, who has been a fellow

1 Turner v. Ambler, 10 Q. B. 252.

2 Driggs v. Burton, 44 Vt. 124; Boyd v. Cross, 35 Md. 194.

8 Broughton v. Jackson, 18 Q. B. 378; Panton v. Williams, 2 Q. B. 169, Ex. Ch.; Boyd v. Cross, supra; Ramsey v. Arrott, 64 Texas,

workman with the criminal, has been heard to say that he (the plaintiff) had been told, a few hours before the robbery, that the robber had absconded, and that he had told the plaintiff that he intended to go to Australia. The robber has also been seen, early in the morning after the robbery, coming from a public entry leading to the back door of the plaintiff's house. The defendant has no probable cause for the arrest.1

But though the prosecutor be in a situation to show that he had probable cause, so far as regards the strength of his information, still if he did not believe the facts and rely upon them in procuring the arrest, he has committed a breach of duty towards the person arrested. For example: The defendant goes before a magistrate and prefers against the plaintiff the charge of larceny, for which there was reasonable ground in the facts within the defendant's cognizance. The defendant, however, does not believe the plaintiff guilty, but prefers the charge in order to coerce the plaintiff to pay a debt which he owes to the defendant. The defendant has acted without probable cause.2

3

The question of probable cause is to be decided by the circumstances existing at the time of the arrest, and not by the turn of subsequent events; such at all events is the general rule. If the defendant had at that time such grounds for supposing the plaintiff guilty of the crime charged as would satisfy a cautious man, he violates no

1 Busst v. Gibbons, 30 Law J. Ex. 75. Comp. Lister v. Perryman, L. R. 4 H. L. 521, as to hearsay.

2 Broad v. Ham, 5 Bing. N. C. 722. Had the defendant believed the charge, would it have been material that he procured the arrest mainly for the purpose of getting his pay?

3 Swain v. Stafford, 4 Ired. 392 and 398; Delegal v. Highley, 3 Bing. N. C. 950. But see Adams v. Lisber, 3 Blackf. 241; Hickman . Griffin, 6 Mo. 37. See L. C. Torts, 198-200.

duty to the plaintiff in procuring his arrest, though such grounds be immediately and satisfactorily explained away, or the truth discovered by the prosecutor himself. For example: The defendant procures the plaintiff to be arrested for the larceny of certain ribbons, on reasonable grounds of suspicion. He afterwards finds the ribbons in his own possession. He is not liable.1

On the other hand, in accordance with the same princi ple, if the prosecutor was not possessed of facts justifying a belief that the accused was guilty of the charge, it matters not that subsequent events (short of a judgment of conviction, as to which presently) show that there existed, in fact, though not to the prosecutor's knowledge, circumstances sufficient to have justified an arrest by any one cognizant of them. He has violated his duty in procuring the arrest. For example: The defendant to an action for malicious prosecution shows facts sufficient to constitute probable cause, but does not show that he was cognizant of such facts when he procured the plaintiff's arrest. The defence is not good.2

It has, however, been declared that conviction is conclusive evidence of the existence of probable cause; and this though the verdict is afterward set aside and, upon a new trial, an acquittal follows.4 But this, it will be seen, is inconsistent with the rule that the question of probable cause is to be determined by the state of facts within the prosecutor's knowledge (supposing him to have acted bona fide upon such facts) at the time of the arrest. Conviction does not, in point of fact, prove that the prose1 Swain v. Stafford, 4 Ired. 392 and 398.

2 Delegal v. Highley, 3 Bing. N. C. 950.

8 Whitney v. Peckham, 15 Mass. 243 (by a trial magistrate); Parker v. Farley, 10 Cush. 279, 282. See ante, p. 84. Contra, Burt v. Place, 4 Wend. 591; Metropolitan Bank v. Pooley, 10 App. Cas. 210, ante, p. 84, note.

Whitney v. Peckham, supra. See also Parker v. Farley, supra.

cutor at the time had reasonable grounds to suspect the guilt of the prisoner; such grounds, that is, as would have induced a cautious man to arrest the suspected person. It would, it seems, be more accurate to say that the old Statute of Malicious Appeals, which in reality lies at the foundation of the law concerning criminal prosecutions, by plain implication exempted the prosecutor (of felony) from liability in case of the conviction of the prisoner.1

There are other seeming anomalies relating to this phase of probable cause; one of them is found in the effect accorded by some courts to the action of the grand jury, or to that of a magistrate who has power only to bind over the accused for trial. That action is said to furnish prima facie (i.e. sufficient) evidence in regard to probable cause, in a suit for malicious prosecution. For example: The now defendant prosecutes the now plaintiff before the grand jury, on a charge of larceny, and the grand jury throws out the bill. This is deemed prima facie evidence of want of probable cause in the present suit.2 Again: A magistrate binds over a person ac

1 Ante, p. 88, note. If the forgotten statute be followed, this will be true only in cases of conviction of what was felony at common law. In other cases the conviction could not, by the statute, bar an action; nor could it bar an action for malicious prosecution on grounds of estoppel, because the parties to the two actions are different; the criminal suit being between the State and the prisoner. The judgment could not, properly taken, be more than prima facie evidence of probable cause, even if, of itself alone, it could be considered as amounting to any evidence on that point. The question before the petit jury, as has elsewhere been observed (post, p. 94, note), is, not whether there was probable cause for the arrest, within the knowledge of the prosecutor, but whether the prisoner is guilty. However, the language of many of the decisions is that the conviction is conclusive of probable cause; and the author at one time considered this to be correct. L. C. Torts, 196, 197. See ante, p. 84.

2 See Nicholson v. Coghill, 6 Dowl. & R. 12, 14, Holroyd, J.;

cused of crime, who is afterwards tried and acquitted. This is deemed prima facie evidence of probable cause in an action against the prosecutor for malicious prosecution.1 Other courts have taken a different view of the matter, denying that the action of the grand jury or of the magistrate is sufficient evidence in the action for malicious prosecution. How can it be, they say in effect, that what is no evidence at all before the grand jury or the magistrate in the same case can be prima facie evidence before a petit jury in a different case? 2 To this reasoning it might be added that the grand jury or the magistrate does not consider what prompted the prosecutor, but whether there is now sufficient evidence to justify holding the accused further for trial. But the contrary doctrine, after all, is only a doubtful application of the rule of the relevancy of a later fact to prove an earlier, and hence may be thought not inconsistent with the true meaning of probable cause.

4

Further, it has been seen that in certain peculiar cases an action for a malicious civil suit may be brought. Now while it is held that the mere omission to appear and prosecute an action, whereby the defendant obtains a judgment of nonsuit, is no evidence of want of probable cause, it is deemed that a voluntary discontinuance, being a positive act,5 may show prima facie evidence of the For example (taking a case from the old law which permitted an arrest in an ordinary civil suit): The Broad v. Ham, 5 Bing. N. C. 722, 727, Coltman, J.; Bostick v. Rutherford, 4 Hawks, 83; Williams v. Norwood, 2 Yerg. 329.

same.

1 Bacon v. Towne, 4 Cush. 217; Graham v. Noble, 13 Serg. & R. Burt v. Place, 4 Wend. 591. See Reynolds v. Kennedy, 1 Wils. 232; Sutton v. Johnstone, 1 T. R. 493, 505, 506.

270;

2 Israel v. Brooks, 23 Ill. 575.

8 Ante, p. 83.

4 Sinclair v. Eldred, 4 Taunt. 9; Webb v. Hill, 3 Car. & P. 485. 5 Sed qu. of the relevancy of such fact.