Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.
This was an action for a malicious prosecution. In the Court below the plaintiff had judgment, and the defendant appealed. The case was decided by this Court in October, 1855, and the judgment reversed, and the cause remanded. Upon a second trial in the District Court, the plaintiff again recovered, and the defendant again appealed. The case now comes before us with some additional facts, not contained in the previous record.
Public policy and public security alike require that prosecutors should be protected by the law from civil liabilities; except in those cases where the two elements of malice in the prosecutor, and want of probable cause for the prosecution, both concur.
Though malice be proved, yet if there was probable cause, the action must fail. Malice may be inferred from want of probable cause, but want of probable cause cannot be inferred from malice, but must be affirmatively shown by the plaintiff. As to the question of malice, it is one solely for the jury, and to sustain this averment the charge must be shown to have been willfully false. Probable cause is a mixed question of law and fact. Whether the alleged circumstances existed or not, is simply a question of fact, and conceding their existence, whether or not they constitute probable cause is a question of law. Where the circumstances are admitted, or clearly proved by uncontradicted testimony, it is the province of the Court to determine the question of probable cause, and the Court may order a nonsuit. But if there be a conflict of testimony, or the credibility of witnesses is to be estimated, the cause must go to a jury. As the question of probable cause is a mixed question of both law and fact, it is error to submit to the jury, to say whether there was probable cause. The jury have solely the [221]*221right to decide, in cases of reasonable doubt, whether the alleged circumstances really existed. Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. 2 Green. Ev., §§ 453-7; 6 Barbour S. C. R., 86, and the authorities there cited.
These principles seem to be well settled, both by measure and authority; and it only remains to apply them legitimately to the state of case presented by the record.
In this case, the testimony fills but a small space in the record. There were but few witnesses examined; their credibility stands unimpeached, and there is not the slightest perceptible conflict between them. It is, then, one of those cases where the circumstances are clearly established; and the only question to determine is whether these circumstances, in themselves, constitute probable cause.
As two distinct juries, at different terms of the District Court, have found heavy damages for the plaintiff—the first for three thousand three hundred and seventy-five dollars, in August, 1855; and the second for three thousand three hundred and ninety-four and 34-100 dollars, in October 1856—and the learned Judge before whom the cause was tried, refused to grant the defendant a new trial in both instances, we are placed in a position of grave responsibility; and it will, therefore, be proper to state the circumstances under which the prosecution was commenced by the defendant, more in detail than would seem necessary in ordinary cases.
The facts of the case, as stated in the record, were substantially these: In May, 1855, Seale executed to Potter two promissory notes for two thousand dollars each. The notes were afterwards fully paid by Seale, but not delivered up by Potter, Seale taking from Potter a receipt acknowledging full payment of the notes, which receipt was executed long ■ before the arrest of Potter. A witness for plaintiff stated “ that he returned from the Atlantic States in January, 1855, and that afterwards defendant called at his office and had a talk with the plaintiff, his brother, about the two notes above-mentioned; that his brother claimed that Seale owed him some sum of money less than one hundred dollars, and for that reason alone, he refused to deliver to defendant those two notes; that one of said notes was then hypothecated, and the money to redeem the same was paid by witness; that the hypothecation spoken of was before the note was due, and known by defendant; that defendant also told him that unless the plaintiff delivered up said notes he, defendant, should annoy or give plaintiff more trouble than they would be worth to him.”
A witness for the defendant testified, that at the time of the arrest, and previous thereto, witness was acting as the [222]*222attorney for the defendant, and, at the request of the defendant, called upon the plaintiff, “ and I told plaintiff I acted for defendant, and demanded of him to deliver up the two notes here offered by plaintiff—that the defendant, Seale, had been informed that he either had or was about to hypothecate said notes again, and that he was acting wrong if he did not give up said notes. Plaintiff made no denial of these statements, but replied that he would not be forced to do anything— that he would not be insulted in his own house. Witness replied, it is not my intention to insult you. Have you the notes ? Plaintiff answered, it is no one’s business whether I have or not. Witness replied that defendant would be compelled to institute legal proceedings. Plaintiff replied he did not care a-, let the defendant do as he pleased; there were unpleasant feelings existing between them; they were both contractors, and likely one had underbid the other on a contract.” Witness further stated, “ that after the interview with the plaintiff, the defendant further consulted witness as to his remedy at law, and what was the most advisable course for him to pursue in order to obtain possession of the notes; that witness advised defendant that he had two remedies, either of which he had the right to pursue, one was by making a complaint before the recorder and obtaining the arrest of the plaintiff, and the other by proceeding in equity to obtain a cancellation; that the latter proceeding was expensive and difficult. Witness drew up the complaint presented to the recorder, and took charge of the matter for and in behalf of defendant.”
The complaint alluded to by the last witness was as follows :
State of California, County of San Francisco.
Henry Seale, being duly sworn, says, that about the fourth day of May, 1854, he gave and executed to one Charles S. Potter two certain notes, of the amount of two thousand dollars each ; that afterwards said notes were fully paid and discharged by this affiant; that he has demanded repeatedly of said Charles S. Potter said notes, and that said Potter has given various reasons for not delivering the same; that at one time he has said he had hypothecated the same to raise money—and again, that he had them in his possession, and would not deliver them to this affiant; that this affiant is informed, and verily believes, that said Charles S. Potter has fraudulently used, transferred, and assigned, said notes, with the intent to defraud, deceive, and cheat this affiant, and this affiant verily believes that said Charles S. Potter refuses to deliver said notes, for the reason that he is about to, or has assigned, or transferred, said notes, for the purpose and with the intent to .defraud some person. Affiant further states that he believes, from what said Potter told him when he paid [223]
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Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.
This was an action for a malicious prosecution. In the Court below the plaintiff had judgment, and the defendant appealed. The case was decided by this Court in October, 1855, and the judgment reversed, and the cause remanded. Upon a second trial in the District Court, the plaintiff again recovered, and the defendant again appealed. The case now comes before us with some additional facts, not contained in the previous record.
Public policy and public security alike require that prosecutors should be protected by the law from civil liabilities; except in those cases where the two elements of malice in the prosecutor, and want of probable cause for the prosecution, both concur.
Though malice be proved, yet if there was probable cause, the action must fail. Malice may be inferred from want of probable cause, but want of probable cause cannot be inferred from malice, but must be affirmatively shown by the plaintiff. As to the question of malice, it is one solely for the jury, and to sustain this averment the charge must be shown to have been willfully false. Probable cause is a mixed question of law and fact. Whether the alleged circumstances existed or not, is simply a question of fact, and conceding their existence, whether or not they constitute probable cause is a question of law. Where the circumstances are admitted, or clearly proved by uncontradicted testimony, it is the province of the Court to determine the question of probable cause, and the Court may order a nonsuit. But if there be a conflict of testimony, or the credibility of witnesses is to be estimated, the cause must go to a jury. As the question of probable cause is a mixed question of both law and fact, it is error to submit to the jury, to say whether there was probable cause. The jury have solely the [221]*221right to decide, in cases of reasonable doubt, whether the alleged circumstances really existed. Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. 2 Green. Ev., §§ 453-7; 6 Barbour S. C. R., 86, and the authorities there cited.
These principles seem to be well settled, both by measure and authority; and it only remains to apply them legitimately to the state of case presented by the record.
In this case, the testimony fills but a small space in the record. There were but few witnesses examined; their credibility stands unimpeached, and there is not the slightest perceptible conflict between them. It is, then, one of those cases where the circumstances are clearly established; and the only question to determine is whether these circumstances, in themselves, constitute probable cause.
As two distinct juries, at different terms of the District Court, have found heavy damages for the plaintiff—the first for three thousand three hundred and seventy-five dollars, in August, 1855; and the second for three thousand three hundred and ninety-four and 34-100 dollars, in October 1856—and the learned Judge before whom the cause was tried, refused to grant the defendant a new trial in both instances, we are placed in a position of grave responsibility; and it will, therefore, be proper to state the circumstances under which the prosecution was commenced by the defendant, more in detail than would seem necessary in ordinary cases.
The facts of the case, as stated in the record, were substantially these: In May, 1855, Seale executed to Potter two promissory notes for two thousand dollars each. The notes were afterwards fully paid by Seale, but not delivered up by Potter, Seale taking from Potter a receipt acknowledging full payment of the notes, which receipt was executed long ■ before the arrest of Potter. A witness for plaintiff stated “ that he returned from the Atlantic States in January, 1855, and that afterwards defendant called at his office and had a talk with the plaintiff, his brother, about the two notes above-mentioned; that his brother claimed that Seale owed him some sum of money less than one hundred dollars, and for that reason alone, he refused to deliver to defendant those two notes; that one of said notes was then hypothecated, and the money to redeem the same was paid by witness; that the hypothecation spoken of was before the note was due, and known by defendant; that defendant also told him that unless the plaintiff delivered up said notes he, defendant, should annoy or give plaintiff more trouble than they would be worth to him.”
A witness for the defendant testified, that at the time of the arrest, and previous thereto, witness was acting as the [222]*222attorney for the defendant, and, at the request of the defendant, called upon the plaintiff, “ and I told plaintiff I acted for defendant, and demanded of him to deliver up the two notes here offered by plaintiff—that the defendant, Seale, had been informed that he either had or was about to hypothecate said notes again, and that he was acting wrong if he did not give up said notes. Plaintiff made no denial of these statements, but replied that he would not be forced to do anything— that he would not be insulted in his own house. Witness replied, it is not my intention to insult you. Have you the notes ? Plaintiff answered, it is no one’s business whether I have or not. Witness replied that defendant would be compelled to institute legal proceedings. Plaintiff replied he did not care a-, let the defendant do as he pleased; there were unpleasant feelings existing between them; they were both contractors, and likely one had underbid the other on a contract.” Witness further stated, “ that after the interview with the plaintiff, the defendant further consulted witness as to his remedy at law, and what was the most advisable course for him to pursue in order to obtain possession of the notes; that witness advised defendant that he had two remedies, either of which he had the right to pursue, one was by making a complaint before the recorder and obtaining the arrest of the plaintiff, and the other by proceeding in equity to obtain a cancellation; that the latter proceeding was expensive and difficult. Witness drew up the complaint presented to the recorder, and took charge of the matter for and in behalf of defendant.”
The complaint alluded to by the last witness was as follows :
State of California, County of San Francisco.
Henry Seale, being duly sworn, says, that about the fourth day of May, 1854, he gave and executed to one Charles S. Potter two certain notes, of the amount of two thousand dollars each ; that afterwards said notes were fully paid and discharged by this affiant; that he has demanded repeatedly of said Charles S. Potter said notes, and that said Potter has given various reasons for not delivering the same; that at one time he has said he had hypothecated the same to raise money—and again, that he had them in his possession, and would not deliver them to this affiant; that this affiant is informed, and verily believes, that said Charles S. Potter has fraudulently used, transferred, and assigned, said notes, with the intent to defraud, deceive, and cheat this affiant, and this affiant verily believes that said Charles S. Potter refuses to deliver said notes, for the reason that he is about to, or has assigned, or transferred, said notes, for the purpose and with the intent to .defraud some person. Affiant further states that he believes, from what said Potter told him when he paid [223]*223the first of said notes, that the same was hypothecated, and that the said Potter afterwards obtained the possession thereof, and refuses, from some causes, to deliver the same to affiant:
Wherefore, affiant prays that said Potter may be arrested for fraudulently assigning, transfering, or using, the personal property of affiant, and that he may be dealt with according to law.
[Signed] Henry W. Seale.
Subscribed and sworn to before me, the twenty-second day of March, 1855.
[Signed] R. H. Waller, City Recorder.
A warant was issued by the recorder, and the plaintiff arrested. “ The defendant went with the constable, who had the warrant, down on Market street, and told him to arrest the plaintiff. After getting down to the plaintiff’s place of business, the defendant pointed it out to the officer; the officer went and arrested the plaintiff, and the defendant and another person followed the officer and the plaintiff, so under arrest, through the different streets up to the police-office, where the plaintiff was discharged, on bail, until the next day. On the next day, the plaintiff appeared before the recorder, and produced the two notes mentioned in the affidavit of arrest, and the defendant offered no proof, and the plaintiff was fully discharged and acquitted.”
On the trial before the District Court, the plaintiff produced and read in evidence the two notes mentioned.
Was the conduct of the plaintiff such as to afford the defendant reasonable ground for believing that the plaintiff had fraudulently used, transferred, and assigned the notes, or was about to do so, with intent to deceive and cheat the defendant, or some other person ?
The fact that defendant had paid the notes without their being delivered, shows clearly the friendly relation existing between the parties, and the willingness of the defendant to oblige the plaintiff.
It is clearly shown that the plaintiff, after receiving the money, did not apply it to redeem the notes, but used it for other purposes. At the time defendant called upon the plaintiff, as stated by plaintiff’s brother, one of the notes was still pledged, and the witness afterwards advanced the money to redeem it. At that time, plaintiff refused to deliver the notes, upon the sole ground that he claimed the defendant owed him “some sum of money less than one hundred dollars •” while the fact was, that one of the notes was then hypothecated and in the hands of another, and the plaintiff had to borrow the money to redeem it. When afterwards called upon by defendant's attorney, the plaintiff replied that “ he would not be forced to do [224]*224anything; that he would not be insulted in his own house;” and refused to give any satisfaction as to whether he had the notes or not, alleging it was no one’s business. He did not then predicate his refusal to return the paid notes upon the ground that defendant owed him anything, but said there was unpleasant feelings existing between them, and that they were both contractors, and likely one had underbid the other on a contract. If there existed any other cause for unfriendly feelings between the parties, except the fact that plaintiff had been paid in full for the notes and refused’ to return them, it is not shown in the record.
And the conclusion is irresistible, that the alleged claim of less than one hundred dollars, and the reason given by plaintiff for the unpleasant state of feeling existing between them, were mere pretences in excuse for the conduct of plaintiff in refusing to deliver the notes. Having used the money for other purposes, leaving the defendant still liable upon the notes, and without any security that they ever would be redeemed by plaintiff, it was very natural that the plaintiff should seek some plausible justification of such unj ustifiable conduct. And, looking to the whole conduct of the plaintiff, we are compelled to reiterate the view formerly expressed by the learned Judge who delivered the opinion of this Court, that “ the conduct of the plaintiff in reference to his business transaction with the defendant, was reprehensible in the last degree, and we should be sorry to think that the commercial morality of the age could tolerate it in any other aspect than as dishonorable and unconscientious.’’
It would seem, from all the circumstances, that the defendant had ample grounds to satisfy a reasonable man that the plaintiff intended to defraud some one, if he had not already done so. He had been fully paid, and the payment must have been made with the understanding that the notes would be redeemed with the money paid by defendant. They were not so redeemed, and this fact alone was good ground for suspicion. But when called upon at different times to return the notes, and still refusing to do so, the plaintiff, by his own conduct, gave the defendant the most just grounds for suspicion. I confess I cannot see what other inference defendant could draw. There was certainly not the slightest honest reason for plaintiff’s conduct. Even conceding he had what he considered a good claim against the defendant for a less sum than one hundred dollars, he had no right to retain the two notes for four thousand dollars. He had no lien upon the notes, equitable or legal.
If these views be correct, then the facts, as clearly proved, justified the defendant in the belief stated by him in his affidavit, and he was, therefore, not to blame for stating what he did.
But the facts, as stated in the affidavit, did not authorize the [225]*225arrest of the plaintiff, and the question arises whether the defendant should not be held responsible for the error in law.
In the case of Hewlett v. Crutchley, 5 Taunt., 277, it was held, that a defendant by obtaining the opinion of counsel, by applying to a weak or an ignorant man, could not shelter his malice in bringing an unfounded prosecution. But in that case, the defendant was not only an attorney himself, but it was shown that the defendant know that the alleged facts, upon which the prosecution was founded, were untrue. It was also shown that the defendant did not fairly state all the facts to his counsel, but only & part of the case.
But in the later case of Cohen v. Morgan, 6 Dow & Ry., 8, it appears that the defendant simply stated the facts before the Justice, and it was held, that “it was for the Justice to say whether the facts amounted to a felony, and to determine whether he would, or would not, issue his warrant to apprehend the party accused.”
In the case of Stone v. Swift, (4 Pick., 389,) the learned Judge who delivered the opinion of the Court, said:
“But, as has been observed, all the counts are founded upon the knowledge of Swift, that he had no just cause of action when his suit was commenced. Upon considering the evidence in the case, the Court do not perceive that the jury could properly have found that to be the fact. It appears that Swift acted upon advice of counsel. If he did not withhold any information from, his counsel, with the intent to procure an opinion that might operate to shelter and protect him against a suit, but, on the contrary, if he, being doubtful of his legal rights, consulted learned counsel, with a view to ascertain them, and after-wards pursued the course pointed out by his legal adviser, he is not liable to this action, notwithstanding his counsel may have mistaken the law.”
And in the case of Hall v. Suydam, (6 Barbour S. C. R., 83,) it was said by Paige, P. J., that “ if a party lays the facts of his case fully and fairly before counsel, and acts in good faith upon the opinion given him by such counsel, (however erroneous that opinion may be,) it is sufficient evidence of probable cause, and is a good defence to an action for a malicious arrest. But in such a case, it is properly a question for a jury, whether such party acted bona fide on the opinion given him by his professional adviser, believing that the plaintiff was guilty of the crime of which he was accused, or that he had a good cause of action against the plaintiff.”
In this case, the defendant seems to have laid his case fully before his counsel, and before instituting proceedings, the counsel demanded the return of the notes from the plaintiff, and heard from him the alleged ground upon which he refused to return them. The counsel was then in possession of all the material [226]*226facts of the case, and the arrest was made xmder his advice, and by his professional assistance. It is true, that the question whether the defendant acted bona fide under the advice of his counsel, is a question of intention to be determined by the jury, in all cases whore there is any legitimate evidence to show a want of good faith in following professional advice. But in this case, as in the case from Pickering, already quoted, we do not see that the jury could have properly so found. There was no evidence to show bad faith in the defendant. He was justified in the statement of facts and belief made in his affidavit, and as to his mistake of law, there'is much better reason for it, on his part, than for the same mistake in reference to the same question, on the part of his counsel and the recorder. From the nature of the case, the mistake was not so great as is often committed by attorneys and officers of the law. There is no great difference in morality and common sense between.a fraud committed by putting in pledge notes already paid, and obtaining money under false pretences. The distinction is more technical than real. The fraudulent motive is essentially the same in both cases, and the injury to the party defrauded is in substance the same.
But while the conduct of the plaintiff was reprehensible in the last degree, that of the defendant was by no means blameless.. His following the plaintiff, while under arrest, through the streets, certainly did show malice. Still, it must be conceded that if malice could be justified, the defendant had some cause for it. Both parties seem to have had a due share of it. But there was this difference between the two parties: before the arrest the only cause plaintiff had for his malice was his own misconduct towards the defendant, while the defendant had not his own misconduct against the plaintiff, but that of the plaintiff against him—the defendant—as his excuse.
From a consideration of the circumstances of this case, and the law applicable to them, our conclusion is, that there was probable cause for the arrest of the plaintiff, and that this action cannot be maintained.
Judgment reversed, and the case of plaintiff dismissed.