By the Court.
I. this action, which is brought for a malicious prosecution, the principal complaint of the action of the court on the trial is, that the evidence not having been sufficient to establish a want of probable cause, it should therefore not have been left to the jury. There was no request made to the court to instruct the jury that any particular state of facts did not or did constitute probable cause in law. It did instruct them that they were to determine from all the facts in the case whether there was probable cause; to which an exception was taken. A request was made to charge the jmy that “the commitment was evidence of probable cause,” which the court declined to charge in those words, but did instruct the jury that such “ commitment was an item of evidence, but by no means conclusive evidence,” to which, also, an exception was taken. Neither of these instructions were improper. Prima facie, every case tried before a jury, unless otherwise required, is to be determined by them. A court is not bound, without the request of parties, to give any instructions to them; and jurors are presumed to be acquainted with all the rules of law, in regard to which the parties do not request them to be instructed, or the court does not instruct them. Probable cause was an essential issue in this case, the testimony was addressed to the jury, and it was their province to determine from the established facts in the case, in the absence of any instruction, to the contrary, whether there was a want of probable cause; clearly, an-instruction to the reverse of such proposition would not have been correct. If the counsel was apprehensive that the jury would understand the court as saying that probable cause was a question of fact and not of law, he should have required the instruction to be made more definite, by calling on the court to p'ass upon such definition [308]*308more definitely. (Wyman a. Hart, 12 How. Pr., 122; Winchell a. Hicks, 18 N. Y., 558; Law a. Merrills, 6 Wend., 268.)
The charge that a commitment is not conclusive evidence of probable cause is correct, and does not qualify its being evidence, but merely its weight as such. Conclusive evidence means either a presumption of law, or else evidence so strong as to overbear all other in the case to the contrary. (Aeby a. Rapelye, 1 Hill, 9.) ,
The refusal to dismiss the complaint is of course sustained by the other evidence in the case, if it furnished enough to go to the jury upon, and it is wholly immaterial whether at the time of the denial of such motion there was sufficient .or not. The right to permit new evidence to be introduced is entirely a matter of discretion with the court before the matter is disposed of and the trial ended.
But the defendant’s counsel renewed the motion to dismiss, npon the ground that the facts in the case showed no want of probable cause as matter of law, and therefore there was nothing to submit to the jury.
The allegations in the complaint of a charge by the defendant, before some police-justice in the city of Hew York, against the plaintiff of a felonious embezzlement of certain moneys belonging to him, and of a felonious larceny of certain shirts, on which a warrant was issued, and the plaintiff detained in custody, is admitted in the answer. It sets up as a" defence that he made such charge, believing the plaintiff to be guilty of the offences charged, and not through malice; avers that the plaintiff was in his employ as clerk from January to July, 1860, and received a large sum of money as such, and applied the same to his own use without the defendant’s knowledge; that he left the defendant’s employ on the 19th of July, 1860, without consulting him, and he did not know of his collecting such moneys until after such departure; also, that the plaintiff received a large quantity of shirts for the defendant from a fiz-m (Strauss & Go.), to be washed, and, after the plaintiff left, a large number of them were- missing; and the defendant suspected him of, and therefore charged him with a larceny; also, that he made a full statement of the facts on which the charges were founded to counsel, by whom he was advised that the plaintiff was guilty of such charges, and that they could be [309]*309sustained, and thereupon he commenced such proceedings, and employed such counsel to conduct them.
The plaintiff, to establish the want of probable cause, introduced in evidence the depositions of the defendant, taken on the 26th and 30th of July, 1860, and of two other persons, severally purporting to be sworn to before a police-justice of the city of Hew York, which were admitted'without objection. They were proved to have been taken from the files of the clerk of the Court of Sessions; how or by whom placed there did not appear. They did not purport to be examinations of any witnesses on any charge, or that the magistrate before whom they were sworn issued any warrant on which the plaintiff was arrested, or that he" detained him for examination or inquiry. They were therefore simply affidavits made by the defendant, containing his version of the plaintiff’s conduct.
The first of' the three depositions of the defendant states the retention by the "plaintiff of the moneys received by him as employee, and collected from customers; and that the defendant received on the previous day, from a friend of the plaintiff, an account of the moneys collected by him, alleged to be, but not annexed to such deposition. It also denies any authority to the plaintiff to collect or receive such moneys, and that whatever moneys he received he was bound to pay over daily to the defendant. It also alleges that the plaintiff had quit his employment, and that a large number of shirts received by him from a customer had disappeared from his place of business, and had not been seen since the plaintiff left his employ. His other affidavits tend to sustain the same state of facts, and speak of certain papers as produced which are not identified or proved in any way. Another affidavit of a customer of the defendant shows the collection of money by the plaintiff from her; and another of the clerk of the firm whose shirts had disappeared, of the number received by him from the plaintiff personally, and, delivered by the latter to him, and the quantity unaccounted fo"r. The defendant admits in such affidavit the receipt by him from a Mr. Hahn of the account of moneys collected by the plaintiff, in his writing.
Hpon the charge of the embezzlement, the only defect of the testimony would be in some want of authority of the plaintiff to collect the moneys withheld by him (it being proved that he [310]*310did withhold them), his right to retain them for his use, or disburse them for the defendant. Except the testimony of Mr. Hahn, there is no evidence in regard to such authority except the plaintiff’s and defendant’s. He states that the defendant once told him it was the same thing whether he paid his bills to himself or the plaintiff, who was his foreman; and again, that the latter did not come to his place of business because he was sick, and that he would have to give up the business unless he had a man who understood it. This was-three or four days after the plaintiff left, and the witness took his account of the money received by him to the defendant to procure a settlement. The testimony of the plaintiff and defendant is conflicting as to the authority of the former to receive and disburse the moneys of the latter.
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By the Court.
I. this action, which is brought for a malicious prosecution, the principal complaint of the action of the court on the trial is, that the evidence not having been sufficient to establish a want of probable cause, it should therefore not have been left to the jury. There was no request made to the court to instruct the jury that any particular state of facts did not or did constitute probable cause in law. It did instruct them that they were to determine from all the facts in the case whether there was probable cause; to which an exception was taken. A request was made to charge the jmy that “the commitment was evidence of probable cause,” which the court declined to charge in those words, but did instruct the jury that such “ commitment was an item of evidence, but by no means conclusive evidence,” to which, also, an exception was taken. Neither of these instructions were improper. Prima facie, every case tried before a jury, unless otherwise required, is to be determined by them. A court is not bound, without the request of parties, to give any instructions to them; and jurors are presumed to be acquainted with all the rules of law, in regard to which the parties do not request them to be instructed, or the court does not instruct them. Probable cause was an essential issue in this case, the testimony was addressed to the jury, and it was their province to determine from the established facts in the case, in the absence of any instruction, to the contrary, whether there was a want of probable cause; clearly, an-instruction to the reverse of such proposition would not have been correct. If the counsel was apprehensive that the jury would understand the court as saying that probable cause was a question of fact and not of law, he should have required the instruction to be made more definite, by calling on the court to p'ass upon such definition [308]*308more definitely. (Wyman a. Hart, 12 How. Pr., 122; Winchell a. Hicks, 18 N. Y., 558; Law a. Merrills, 6 Wend., 268.)
The charge that a commitment is not conclusive evidence of probable cause is correct, and does not qualify its being evidence, but merely its weight as such. Conclusive evidence means either a presumption of law, or else evidence so strong as to overbear all other in the case to the contrary. (Aeby a. Rapelye, 1 Hill, 9.) ,
The refusal to dismiss the complaint is of course sustained by the other evidence in the case, if it furnished enough to go to the jury upon, and it is wholly immaterial whether at the time of the denial of such motion there was sufficient .or not. The right to permit new evidence to be introduced is entirely a matter of discretion with the court before the matter is disposed of and the trial ended.
But the defendant’s counsel renewed the motion to dismiss, npon the ground that the facts in the case showed no want of probable cause as matter of law, and therefore there was nothing to submit to the jury.
The allegations in the complaint of a charge by the defendant, before some police-justice in the city of Hew York, against the plaintiff of a felonious embezzlement of certain moneys belonging to him, and of a felonious larceny of certain shirts, on which a warrant was issued, and the plaintiff detained in custody, is admitted in the answer. It sets up as a" defence that he made such charge, believing the plaintiff to be guilty of the offences charged, and not through malice; avers that the plaintiff was in his employ as clerk from January to July, 1860, and received a large sum of money as such, and applied the same to his own use without the defendant’s knowledge; that he left the defendant’s employ on the 19th of July, 1860, without consulting him, and he did not know of his collecting such moneys until after such departure; also, that the plaintiff received a large quantity of shirts for the defendant from a fiz-m (Strauss & Go.), to be washed, and, after the plaintiff left, a large number of them were- missing; and the defendant suspected him of, and therefore charged him with a larceny; also, that he made a full statement of the facts on which the charges were founded to counsel, by whom he was advised that the plaintiff was guilty of such charges, and that they could be [309]*309sustained, and thereupon he commenced such proceedings, and employed such counsel to conduct them.
The plaintiff, to establish the want of probable cause, introduced in evidence the depositions of the defendant, taken on the 26th and 30th of July, 1860, and of two other persons, severally purporting to be sworn to before a police-justice of the city of Hew York, which were admitted'without objection. They were proved to have been taken from the files of the clerk of the Court of Sessions; how or by whom placed there did not appear. They did not purport to be examinations of any witnesses on any charge, or that the magistrate before whom they were sworn issued any warrant on which the plaintiff was arrested, or that he" detained him for examination or inquiry. They were therefore simply affidavits made by the defendant, containing his version of the plaintiff’s conduct.
The first of' the three depositions of the defendant states the retention by the "plaintiff of the moneys received by him as employee, and collected from customers; and that the defendant received on the previous day, from a friend of the plaintiff, an account of the moneys collected by him, alleged to be, but not annexed to such deposition. It also denies any authority to the plaintiff to collect or receive such moneys, and that whatever moneys he received he was bound to pay over daily to the defendant. It also alleges that the plaintiff had quit his employment, and that a large number of shirts received by him from a customer had disappeared from his place of business, and had not been seen since the plaintiff left his employ. His other affidavits tend to sustain the same state of facts, and speak of certain papers as produced which are not identified or proved in any way. Another affidavit of a customer of the defendant shows the collection of money by the plaintiff from her; and another of the clerk of the firm whose shirts had disappeared, of the number received by him from the plaintiff personally, and, delivered by the latter to him, and the quantity unaccounted fo"r. The defendant admits in such affidavit the receipt by him from a Mr. Hahn of the account of moneys collected by the plaintiff, in his writing.
Hpon the charge of the embezzlement, the only defect of the testimony would be in some want of authority of the plaintiff to collect the moneys withheld by him (it being proved that he [310]*310did withhold them), his right to retain them for his use, or disburse them for the defendant. Except the testimony of Mr. Hahn, there is no evidence in regard to such authority except the plaintiff’s and defendant’s. He states that the defendant once told him it was the same thing whether he paid his bills to himself or the plaintiff, who was his foreman; and again, that the latter did not come to his place of business because he was sick, and that he would have to give up the business unless he had a man who understood it. This was-three or four days after the plaintiff left, and the witness took his account of the money received by him to the defendant to procure a settlement. The testimony of the plaintiff and defendant is conflicting as to the authority of the former to receive and disburse the moneys of the latter. It is true the plaintiff is bound to establish a negative,—viz., want of probable cause,—but slighter evidence may do that than if he had to establish any affirmative. It is true the plaintiff’s character for truth and veracity was assailed, but it was sustained by about the same number of witnesses, and his credibility was a proper question for the jury, as well as the relative credit to be given to his own account and the defendant’s.
In regard to the charge of larceny, however, it was established that the plaintiff had received the articles, and they were under his charge, and were not produced or accounted for; and, although others had access to the same place of deposit, it was a question who took them—the foreman, who was bound to see to their safe-keeping, or a workwoman under him. The former left without notice or reason apparently, and the other remained. Between the two, the defendant was justified in suspecting the former. In law, therefore, there was probable cause for such accusation, whether the plaintiff was innocent or guilty, and the defendant was not liable for. any damages arising from that branch of the charge. (Bulkely a. Keteltas, 6 N. Y., 384; 2 Duer, 261; Vanderbilt a. Mathis, 5 Ib., 304.)
As the court was not asked to charge the jury upon that point, it would not be available upon an exception; but as it was left to the jury, they evidently must have based their estimate of damages upon the ground of the malice of both accusations. Considering the proof of the previous conduct and character of the plaintiff in pecuniary transactions, where he [311]*311received money for others, the damage to his character by a charge of embezzlement would be highly overrated by the sum given. Even go far as his character for veracity is concerned^ positive testimony, if reliable, would be far more effectual than: negative from persons who have heard nothing; the experience of both with public opinion respecting it should be equally great to balance them. But the striking proof of particular transactions shows considerable and frequent disregard as to pecuniary obligations. Rone of them, however, approach the criminality of stealing, and I cannot but think the greater portion of the damages was given for that charge. The verdict ought, therefore, to be relieved against as excessive.
The order denying a new trial should therefore be reversed, the defendant paying the costs of the trial, of such motion, and the appeal therefrom, unless the plaintiff will elect to reduce his damages to $300, which is nearly $20 a day for his imprisonment, and deduct $15 from the extra allowance made. In which latter case, both the judgment and order denying a new trial to stand. Ro costs to be allowed on the appeal from the judgment, unless the defendant fail to pay the costs above specified in five days after they are adjusted, in which case, both the judgment and order must be affirmed, with costs.
Present, Robertson, White, and Barb ode, JJ.