Burhans v. Sanford & Brown

19 Wend. 417

• Court: New York Supreme Court
• Decided: May 15, 1838
• Status: Published

Opinion

By the Court,

Bronson, J.

When this case was before the court on a former occasion, the case stated that the plaintiffs in the action of slander suffered a judgment as in case of nonsuit to be taken against them ; and we held that this fact alone did not furnish sufficient evidence of a want of probable cause, to entitle the plaintiff to a verdict. The mere omission to prosecute an action, by reason of which the defendant obtains a judgment of non pros, or as in case of nonsuit does not of itself furnish a sufficient foundation for this action. Sinclair v. Eldred, 4 Taunt. 7. See also Purcell v. Macnamara, 9 East, 361. But it now appears that the former action was voluntarily discontinued by the plaintiffs. That was sufficient to change the onus, and throw upon the defendants the necessity of showing probable cause for arrest. Nicholson v. Coghill, 6 Dow. & Ry. 12. Webb v. Hill, 3 Car. & Payne, 495. 1 M. & M. 253, S. C.

Malice may be, and usually is inferred in these actions from the want of probable cause. It is not necessary to show that the act complained of was dictated by angry feeling, or a vindictive motive. Jones v. Nicholls, 3 Car. & Payne, 12. The evidence was sufficient, prima facie, to carry the cause to the jury, and the nonsuit must therefore be set aside.

New trial granted.