Opinion
April Term, 1852
S. Beardsley, for appellants.
E. Sandford, for respondent.
[After expressing an opinion that Eugene Keteltas should have been discharged, for want of sufficient evidence to connect him with the prosecution of the plaintiff.]
Again I am of opinion that there were errors in the charge of the judge, for which the verdict should be set aside.
1. When there is no dispute about the facts, the question of the want of probable cause is for the determination of the court. Where the facts are controverted or doubtful; whether they are proved or not belongs to the jury to decide, or in other words, whether the circumstances alleged are true, is a question of fact; but, if true, whether they amount to probable cause, is for the court. ( Baldwin v. Weed, 17 Wend. 227; 1 T.R. 542; 2 Wend. 424; McCormick v. Sisson, 7 Cowen, 715; Pangburn v. Bull, (1 Wend. 345.) And when the judge ought to have nonsuited the plaintiff for the failure to prove a want of probable cause, a new trial will be granted. (7 Cowen, 715; 2 Wend. 424; 1 Id. 140.) The following case will show, with how much precision the respective duties of the court and jury are laid down and enforced in England. It was there held in a recent case, that though the question of probable cause depends not upon a few and simple facts, but upon facts that are numerous and complicated and upon numerous and complicated inferences to be drawn from them, it is the duty of the judge to inform the jury, that if they find the facts to be proved, and the inferences to be warranted by such facts, that the same do or do not amount to probable cause, so as thereby to leave the question of fact to the jury, and the abstract question of law to the judge. ( Panton v. Williams, 1 Gale Davidson, 504; S.C. 2 Ad. El. N.S. 169.) In the case before the court the defendants' counsel made a strenuous effort to induce the judge to perform the duty which the law has assigned to him, but without effect. The fifth proposition submitted by the defendants' counsel, and which the judge was requested to charge, affirmed, that if the jury were satisfied of the honest belief and understanding of the defendant on the point, that the plaintiff testified that he had no interest in the suit in the common pleas; then, the other facts and circumstances proved in evidence, did not establish the want of probable cause. To this the judge charged, that it was for the jury to determine, "whether those circumstances "proved in evidence do, or do not, establish a want of probable cause." Again the seventh proposition, which the judge was requested to charge, asserts, that the plaintiff had failed to show the want of probable cause — to which the judge responds: "This, I say, is for the jury." These two instructions to the jury are clearly erroneous, and there is in a subsequent part of the case a distinct exception to these decisions. The jury are told that it is their province to determine, whether the facts and circumstances proved in evidence, do, or do not, establish the want of probable cause. The judge does not decide whether these facts and circumstances are sufficient or not, provided the jury believe them to be proved, but leave the whole matter to the determination of the jury. If the judge had supposed that the truth of the facts as sworn to admitted of a doubt, he should have expressed his opinion on the law arising upon those facts, if proved, and then submitted to the jury the question whether they were credibly proved or not. It is admitted in the opinion of the superior court which has been furnished us that this part of the charge was erroneous; but it is said that it should be taken in connection with the residue of the charge, which placed the question right before the jury. I do not so read the residue of the charge. I do not think that a palpably erroneous instruction in the outset, was likely to be corrected by any thing the judge said in favor of the defendant, afterwards. The judge did, indeed, give an abstract definition of probable cause; and then indulged in an obviously unfavorable commentary towards the defendants, upon the credibility of some of the facts which were proved by them. Now the greater part of those facts were in writing under the hand of the plaintiff, or were undisputed by the plaintiff's counsel. For instance, on the ninth of June, (the day after the verdict against Keteltas in the common pleas was rendered,) the plaintiff gave notice to Mr. Smith, that he had an irrevocable power of attorney from Bradley to settle the suit, and to receive all moneys that might be coming due from it, and that if Keteltas settled with any other person than himself, he would have to pay the verdict over again; and this was after he had paid Mr. Sandford twenty-five dollars for his services on the trial of the cause. On the eighth of June, he served a notice, stating that he was specially authorized to receive the verdict, and that his costs and counsel fees were unpaid, and that no one but himself had a right to receive the money on the verdict. Again he told Brush, as Brush swears, on the eighth of June, that he had an assignment of the judgment to be rendered, or an irrevocable power of attorney to receive the verdict. Now whether Brush and Keteltas were mistaken or not as to the assignment; it is very clear, that the defendants were entitled to an opinion of the court, whether a man who had advanced twenty-five dollars as a counsel fee for his client, and had not been paid any of his costs and counsel fees in the suit, and at the same time held an irrevocable power of attorney to receive the verdict, had or had not, an interest in the suit; and whether, the existence of these undisputed facts, did not amount to probable cause for the prosecution. The cases of Eagar v. Dyott, (5 Car. Payne, 4;) Wilmarth v. Mountford, (4 Wash. C.C. Rep. 79;) and Baldwin v. Weed, (17 Wend. 224;) are strong authorities to show that they did; but at all events, the defendants were entitled to the opinion of the court upon that point; and they were also entitled to the opinion of the court, whether the whole facts, relied on by the defendants, if those facts were believed by the jury, would constitute proof of probable cause.
There are several other topics discussed in the charge in relation to which the opinion and commentary of the judge were either erroneous in point of law, or in relation to the legal results of the evidence, and were calculated to mislead the jury, but it is unnecessary to specify them, as there must be a new trial upon the point already considered.
JOHNSON, J. delivered an opinion in favor of affirming the judgment, holding that the exception to the charge was not sufficiently specific to raise the question considered in the foregoing opinion.
All the other members of the court concurred in the opinion of GRIDLEY, J. upon the point above discussed.
Judgment reversed.