BY THE COURT. The judgment in this case was affirmed, and the remittitur sent from this court to the court below. After the remittitur was received and filed in the court below a motion was made by defendants to amend the judgment, which had been affirmed by striking out some portions of it which were material to such judgment. This motion was denied, and from the order denying it this appeal is prosecuted. No reason which commends itself to our judgment appears for granting such a motion. The affirmance of the judgment foreclosed all such questions as those which would arise on the motion. If the defendants, or any of them, were aggrieved by the portions of the judgment sought to be stricken out, they should have been brought before this court on the former appeal. The judgment disposed finally of all the questions involved in the motion. Further, it is said that the portions of the judgment sought to be stricken out were inserted by the clerk without authority and by inadvertence. The denial of the motion by the court disposes of the question of inadvertence, on the testimony before it, adversely to the defendants, and we find no error in the court so ruling.

The appeal in this case was taken for delay, and the order is affirmed, with $100 damages. Ordered accordingly.

(68 Cal. 151)

GONZALES and others v. COBLINER and others. (No. 9,359.)1 Filed November 30, 1885.

1. VERDICT RENDERED ON CONFLICTING EVIDENCE-CONCLUSIVENESS.

Where the evidence is conflicting, an appellate court will not reverse the judgment on the ground that such evidence was insufficient to justify the verdict.

2. MALICIOUS PROSECUTION-MALICE-PROBABLE CAUSE.

In an action for damages for malicious prosecution in commencing an action in the justice's court for a debt claimed to be due, and in suing out a writ of attachment therein, which the plaintiff claims injured his credit, an instruction that "if the defendants instituted suit in the justice's court against plaintiffs in good faith, without malice, and with no other motive than to recover a debt which they honestly believed was due by plaintiffs, then plaintiffs cannot recover in this action, and the verdict must be for defendants," is proper, and a refusal thereof is error.

Commissioners' decision.

In bank. Appeal from superior court, city and county of San Francisco.

M. Rosenthal and W. H. Sharp, for appellants.

Fox & Kellogg, for respondents.

BELCHER, C. C. This is an action to recover damages for the malicious prosecution of a civil action against the plaintiffs. It is alleged in the complaint that on the twelfth day of January, 1881, the defendants, not then having any reasonable or probable cause of action against the plaintiffs, or either of them, maliciously, and intending to harass, oppress, and injure the plaintiffs in their business,

1 See note at end of case.

good name, and credit, commenced an action in a justice's court to recover from the plaintiffs the sum of $299.50 for goods sold and delivered; that a writ of attachment was taken out at the same time, and served by attaching certain moneys due the plaintiffs; that on the twenty-first day of the same month the attachment was discharged, and the moneys held thereunder released, upon the ground that the accounts sued on were not due when the suit was commenced; that thereupon the plaintiffs in said action voluntarily dismissed and discontinued the same; that at the time of the issuance of the attachment the plaintiffs were engaged in manufacturing and selling neckwear in the city of San Francisco; and that by reason of the suit and attachment they were greatly injured in their credit and business, and suffered great pain of mind; that the plaintiffs were forced to expend, and did expend, the sum of $76 in defense of the action, and in procuring a dissolution of the attachment; and that they were otherwise damaged thereby in the sum of $5,000, for which they asked judgment. There was a general demurrer to the complaint, which was properly overruled. By their answer the defendants admitted that the proceedings in the justice's court were commenced and ended as alleged in the complaint, but they denied that in commencing the action, and taking out the writ of attachment, they acted maliciously or without reasonable and probable cause. On the contrary, they alleged that they acted in good faith, and that before commencing the action they stated all the facts and circumstances connected with the transaction fully, fairly, and truthfully to an attorney who was admitted to practice law in all the courts of this state, and that after such statement they were advised by him, and verily believed, that they had good and present causes of action against the plaintiffs herein, and full right to take out and have levied upon their property a writ of attachment; that, having full faith in and acting upon the advice of their attorney, they commenced and prosecuted the action complained of. They also denied that by reason of the action the plaintiffs suffered pain of mind, or were injured in their business or credit, or were in any way damaged in the sum of $5,000, or in any other sum. Upon the issues thus raised the case was tried before a jury, and very direct and positive testimony was introduced to sustain the contention of each side. The verdict was in favor of the plaintiffs, and the appeal is by the defendants from the judgment and an order denying a new trial.

1. The evidence was conflicting, and we cannot reverse the judgment on the ground that it was insufficient to justify the verdict.

2. The court instructed the jury very clearly and fully upon most of the questions involved in the case, and no exception was taken by the defendants to any of the instructions given; but it refused to instruct them, at the request of defendants, as follows:

"(4) If the defendants instituted suit in the justice's court against plaintiffs in good faith, without malice, and with no other motive than to recover

a debt which they honestly believed was due by plaintiffs, then plaintiffs cannot recover in this action, and your verdict must be for defendants."

The defendants excepted to this refusal, and now assign it as error. We think the instruction should have been given. It was not refused because it had been substantially embraced in the charge given by the court, nor do we think it could rightfully have been refused for that reason. The proposition involved in the instruction asked is settled law. The authorities in support of it are numerous, but only a few need be cited. Speaking of an action for malicious prosecution, this court has said:

"Malice in fact must be shown in order to support the action,

and while the jury may find the fact of malice from the circumstances of the want of probable cause, or from other circumstances established in the case, they are not to be told that a wrongful charge made without probable cause is per se malicious in fact." Harkrader v. Moore, 44 Cal. 153.

The supreme court of Alabama reversed a judgment because the court below refused to instruct the jury "that if the defendants did not sue out the attachment with malice, or from a disposition to vex or harass the plaintiff, but honestly believed that they had reasonable and probable cause to sue out the attachment, then the plaintiff was not entitled to recover." Benson v. McCoy, 36 Ala. 710. In Massachusetts it has been held that "no action lies for one whose property has been attached, and who has suffered much damage in consequence of a civil suit, which was abated, unless the prosecution of such suit were malicious." Lindsay v. Larned, 17 Mass. 190. In an action for malicious prosecution, the supreme court of the United States used the following language:

"It is abundantly settled that no suit can be maintained against an unsuccessful plaintiff or prosecutor, unless it is shown affirmatively that he was actuated in his conduct by malice, or some improper or sinister motive. Malice is essential to the maintenance of any such action, and not merely to the recovery of exemplary damages. *** In Farmer v Darling, 4 Burr 1971, one of the earliest reported cases, if not the earliest, Lord MANSFIELD instructed the jury that the foundation of the action was malice,' and all the judges concurred that malice, either express or implied, and the want of probable cause, must both concur.' From 1766 to the present day such has been constantly held to be the law, both in England and this country. See a multitude of cases collected in 8 U. S. Dig. (1st Series,) 942, pt. 95. And the existence of malice is always a question exclusively for the jury. It must be found by them, or the action cannot be sustained. Hence it must always be submitted to them to find whether it existed. The court has no right to find it, nor to instruct a jury that they may return a verdict for the plaintiff without it. Even the inference of malice from the want of probable cause is one which the jury alone can draw;" citing a large number of cases. Stewart v. Sonneborn, 98 U. S. 192.

It follows that the judgment and order should be reversed, and the cause remanded for a new trial.

We concur: SEARLS, C.;
SEARLS, C.; FOOTE, C.

BY THE COURT. For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.

MYRICK, J., (dissenting.) I think the instruction was substantially given. I therefore dissent from the judgment.

NOTE.

Malicious Prosecution-Probable Cause and Malice.

An action will lie for malicious prosecution against a party who causes the arrest o a person for the purpose of ascertaining who perpetrated an offense. Johnson v. Ebberts, 11 Fed. Rep. 129. The malice necessary to sustain such an action is not express malice, a specific desire to vex or injure another from malevolence or motives of illwill, but the willful doing of an unlawful act, to the prejudice of another. Johnson v. Ebberts, 11 Fed. Rep. 129; Frowman v. Smith, Litt. Sel. Cas. 7. Malice in such a case is not to be presumed from want of probable cause; the jury must find the malice as a substantial fact in the case. Johnson v. Ebberts, 11 Fed. Rep. 129. See Wheeler v. Nesbitt, 24 How. 551; Stewart v. Sonneborn, 98 U. S. 191; Levy v. Brannan, 39 Cal. 488. If an imprisonment is under legal process, but the action has been commenced and carried on maliciously, and without probable cause, it is malicious prosecution. Murphy v. Martin, (Wis.) 16 N. W. Rep. 603; Colter v. Lower, 35 Ind. 285. Where defendants were members of an association that wrongfully, and without probable cause, instituted criminal proceedings against the plaintiff, and personally acted in furtherance of the unlawful act, they were held responsible. Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34. Prosecution of an innocent person, without using reasonable care to ascertain the facts, is not justifiable. Walker v. Camp, (Iowa,) 19 N. W. Rep. 802. It has been held that one who wrongfully causes a criminal action to be commenced is liable for the proceeding in and continuance of the same. Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34; Bacon v. Towne, 4 Cush. 217. Approving arrest of debtor by creditor caused by party acting for him renders liable for actual damages sustained. Rosenkranz v. Barker, (Ill.) 3 N. E. Rep. 93; Grund v. Van Vleck, 69 Ill. 478. It has been said that a partner cannot be held liable for the arrest of a debtor by a copartner, when he neither directs, participates in, nor receives any benefit from, such arrest. Rosenkranz v. Barker, (III.) 3 N. E. Rep. 94. See Gilbert v. Emmons, 42 Ill. 143; Grund v. Van Vleck, 69 Ill. 478. And where a debt has been transferred to parties outside of the state, where, by appropriate judicial proceedings, it is collected with greater facility and more effectually than it could have been done in the state, no action for damages will lie therefor, even though the debtor may have been annoyed and put to additional inconvenience by such transfer. Uppinghause v. Mundel, (Ind.) 2 N. E. Rep. 719.

1. PROBABLE CAUSE. Probable cause not existing as to the party who instigated the prosecution, the fact that the party who made the criminal complaint had probable cause to believe it true, is no defense. Woodworth v. Mills, (Wis.) 20 N. W. Rep. 728. In actions for malicious prosecution the want of probable cause and malice must concur, and the defendant is allowed, if he can, to disprove either. Sherburne v. Rodman, (Mich.) 8 N. W. Rep. 414; Spain v. Howe, 25 Wis. 625; Plath v. Braunsdorff, 40 Wis. 107; McKown v. Hunter, 30 N. Y. 625. Where defendant had probable cause for believing plaintiff guilty of the crime charged, it mattered not how maliciously he may have acted in instituting and prosecuting the case, he is not liable. Murphy v. Martin, (Wis.) 16 N. W. Rep. 603.

It was held by the supreme court of Michigan, in the case of Smith v. Austin, 13 N. W. Rep. 593, that an action for malicious prosecution cannot be maintained against the complainant in a criminal proceeding for which there was probable cause, no matter how evil or malicious his motive may have been in making the complaint. Hamilton v. Smith, 39 Mich. 222. Also, that it cannot be maintained if complainant, after fully and fairly disclosing to the prosecuting officer everything within his knowledge which would tend to cause or to exclude belief in plaintiff's criminality, left him to determine, on his sole responsibility, whether the proceedings should be instituted, even though the case were not a proper one for prosecution.

(1) Definition of. Probable cause is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused was guilty. Ross v. Langworthy, (Neb.) 14 N. W. Rep. 515; Boyd v. Cross, 35 Md. 197; Cooper v. Utterbach, 37 Md. 282. Probable cause is "the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person

charged was guilty of the crime for which he was prosecuted. Brewer v. Jacobs, 22 Fed. Rep. 217; Walker v. Camp, (Iowa,) 19 N. W. Rep. 802; Wheeler v. Nesbitt, 24 How. 544; Barron v. Mason, 31 Vt. 189.

(2) Want of Probable Cause. By a "want of probable cause" is meant an absence of rational grounds of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious and reasonable man in the belief that the person accused is guilty of the crime charged. Davie v. Wisher, 72 Ill. 262. "The question of what constitutes probable cause," say the supreme court of New York, in Fagnan v. Knox, 66 N. Y. 525, "does not depend upon whether the offense has, in fact, been committed, nor whether the accused is guilty or innocent, but upon the prosecutor's belief, based upon reasonable grounds. Bacon v. Towne, 4 Cush. 238. The prosecutor may act upon appearances; and if the apparent facts are such that a discreet and prudent man would be led to the belief that the accused had committed a crime, he will not be liable in the action, although it may turn out that the accused was innocent. Carl v. Ayers, 53 N. Y. 17. If there be an honest belief of guilt, and if there exist reasonable grounds for such belief, the party will be justified. But however suspicious the appearances may be from existing circumstances, if the prosecutor has knowledge of facts which will explain the suspicious appearance, and exonerate the accused from a criminal charge, he cannot justify a prosecution by putting forth the prima facie circumstances, and excluding those within his knowledge which tend to prove innocence." In an action for damages for malicious prosecution in procuring plaintiff to be indicted for perjury, an averment in the petition which clearly and distinctly alleges that the defendant maliciously and without probable cause procured the indictment to be found sufficiently avers the want of probable cause. Hampton v. John, (Iowa,) 12 N. W. Rep. 276.

In action for malicious prosecution plaintiff must establish the want of probable cause. Dwain v. Descalso, (Cal.) 5 Pac Rep. 903. Want of probable cause will not be inferred from even express malice, Wheeler v. Nesbitt, 24 How. 544; but must be proved by plaintiff. Good v. French, 115 Mass. 201, Levy v. Brannan, 39 Cal. 485.

(3) What Amounts to. It is enough if the prosecutor acted with such a degres of impartiality, reasonableness, and freedom from prejudice as can fairly be expe ted of a man of ordinary prudence and caution, acting without malice. Casey v. Jevatson, (Minn.) 16 N. W. Rep. 407. See Cole v. Curtis, 16 Minn. 182, (Gil. 161;) Bacon v. Towne, 4 Cush. 238; McGurn v. Brackett, 33 Me. 331. It is said that if the evidence on the trial of the criminal charge is such as to cause the jury to hesitate as to an acquital, it was evidence of probable cause. Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34; Smith v. MacDonald, 3 Esp. 7. Mere suspicions, without reasonable ground for believ ng them to be founded in fact, will not amount to a probable cause. Hirsch v. Feeney. 83 Ill. 548. Real belief and reasonable ground must unite to afford a justification. Farnam v. Feeley, 56 N. Y. 451. It is said that a conviction before a magistrate of assault and battery does not show probable cause for having instituted an action for assault with intent to kill. Labar v. Crane, (Mich.) 14 N. W Rep. 495.

(a) Belief of Prosecutor. Probable cause does not depend upon mere belief, however sincerely entertained The law imposes the additional requisite of such facts as would induce a reasonable man to believe the accused was guilty, and nothing short of this will justify the institution of criminal proceedings. Ross v. Langworthy. (Neb.) 14 N. W. Rep. 515; Cooley, Torts, 182. Neither does it depend upon the guilt innocence of the accused, but upon the prosecutor's belief in it at the time of prosecution, upon reasonable grounds. King v. Colvin, 11 R. I. 582; Foshay v. Ferguson, 2 Denio, 617; Burlingame v. Burlingame, 8 Cow. 141; Scanlan v. Cowley, 2 Hilt. 489; French v. Smith, 4 Vt. 363; Swain v. Stafford, 3 Ired. 289; Johnson v. Chambers, 10 Ired. 287; Raulston v. Jackson, 1 Sneed, 128; Faris v. Starke, 3 B. Mon. 4; Delegal v. Highley, 3 Bing. (N. C.) 950; Jacks v. Stimpson, 13 Ill. 701, Wade v. Walden, 23 Ill. 425. Although the facts known make out a prima facie case of guilt, yet, if the circumstances are all consistent with the innocence of the party, and the prosecutor knows the accused is not guilty, or does not believe him to be guilty, he cannot have reasonable cause for the prosecution. Woodworth v. Mills, (Wis.) 20 N. W Rep. 728. See Turner v. Ambler, 10 Q. B. 252; Broad v. Ham, 5 Bing. (N. C.) 722; Fagan v. Knox, 1 Abb. (N C.) 246; Townsh. Sland. & Lib. 2 428, p. 715.

The court say, in Sherburne v. Rodman, supra, that "the inten, good faith, and honest belief of the defendant are mental conditions which can be proved only indirectly, presumptively, and inferentially by the facts and circumstances of the case; but malice being a fact to be proved and directly in issue, since parties are allowed to be witnesses there seems to be no good reason why the party alone cannot positively and directly know and testify to such fact." See Wilson v. Noonan, 35 Wis. 321. And it has been held that an action for malicious prosecution will lie "if the defendant knew that the charge was false and unfounded, and by that means procured the plaintiff to be indicted and brought to trial, even though the charge made did not constitute the crime alleged or any crime." This seems to be the general doctrine in this country.