Iredell County NcArchives Court.....William Martin, Benjamin Johnston V. 1819
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Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 18, 2009, 5:56 pm

Source: Nc Reports
Written: 1819

Benjamin Johnston v. William Martin

From Iredell

May Term 1819

In an action for a malicious prosecution, the dismissal of a State's warrant 
by the magistrate who tried it, is prima facie evidence of the want of 
probable cause; and throws upon the prosecutor the burthen of proving that 
there was probable cause.

The Plaintiff, who was an overseer of a road, sued out a warrant against the 
Defendant, who was one of the hands attached to the road, for the penalty 
given by the act of Assembly against delinquent hands, and charged him with a 
delinquency of four days. The delinquency the Plaintiff proved by his own 
oath, and recovered a judgment for the penalty. The Defendant afterwards 
obtained a warrant from a magistrate, charging, that in his belief the 
Plaintiff had sworn falsely against him upon the trial of the warrant. The 
Plaintiff was arrested and taken before two magistrates for examination, and 
dismissed by them, after hearing the evidence of the prosecutor and another 
witness. The Plaintiff then brought this action for malicious prosecution, 
and, upon the trial, proved by the magistrate who issued the warrant, that the 
Defendant when he obtained it, and also on his examination, stated that the 
Plaintiff had sworn falsely in charging him with more days than he had a right 
to do. The other magistrate proved, that the Defendant charged the Plaintiff 
with swearing falsely, in charging him with four days' failure, when the 
Plaintiff had not worked four days on the road. Another witness proved that 
the Defendant admitted he had been notified to work on the road for three days 
during the year, but that the Plaintiff had sworn to more days than he had a 
right to charge him with. Satisfactory proof was given that the Plaintiff had 
worked the four days on the road. The presiding Justice instructed the Jury, 
that the dismissal of the warrant by the magistrates, was no evidence of the 
want of probable cause. There was a verdict for the Defendant, and a rule for 
a new trial was obtained on the grounds of mis-direction by the Court. The 
rule was discharged, and the Plaintiff appealed.

Taylor, Chief-Justice: It is well settled that in this action malice and the 
want of probable cause must both concur, otherwise the action will not lie. 
Malice alone is not sufficient; because a just accusation may be made from 
malicious motives. Nor is the want of probable cause alone sufficient. But as 
malice is express or implied, it is frequently implied from the want of 
probable cause. Whether there be probable cause for the prosecution, must 
depend on all the circumstances of the case; but that which indicates its 
absence most strongly, is the discharge of the magistrates, after a full and 
fair examination of the evidence. This discharge proves a presumption in favor 
of the Plaintiff's innocence; for, until it took place, it could not be 
inferred that the charge against him was without probable cause. Hence the 
necessity of always stating in the declaration that the Plaintiff had been 
discharged from the prosecution; and when that is proved, as it always must 
be, it certainly amounts to prima facie evidence of the want of probable 
cause. As it is not necessary to prove express malice in this action, to the 
support of which, implied malice is sufficient, the discharge of the 
Plaintiff, resulting from the absence of any proof of his guilt, was one 
circumstance from which that implication might arise. It should have been 
stated to the Jury, as prima facie evidence of the want of probable cause, and 
then the onus or proving the existence of probable cause, would have been 
thrown on the Defendant. A new trail is therefore awarded, and upon the trial 
of the cause, the Jury ought to be instructed that the dismissal of the 
Plaintiff by the magistrates was prima facie evidence of the want of probable 
cause.

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