Rutherford County NcArchives Court.....Bostick, V. Rutherford 1825
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Source: Nc Reports Vol 11, 1897
Written: 1825

December Term 1825

BOSTICK v. RUTHERFORD. 

From Rutherford.

A discharge by a magistrate upon a warrant for a felony is prima facie 
evidence of the want of probable cause in an action brought by the defendant 
against the prosecutor for a malicious prosecution.

In such action, the defendant may give in evidence in mitigation of damages, 
that after the prosecution instituted by him, the character of the plaintiff 
was bad, upon subjects unconnected with the felony for which he was prosecuted.

This was an action for a malicious prosecution. It appeared or the trial 
below, before Nash, Judge, that the defendant had taken out a state's warrant 
in 1821 against the plaintiff, charging him with stealing cattle; the 
examining magistrate dismissed the warrant and discharged the plaintiff. Up to 
the time of the charge made by defendant, which was first made in 1819 the 
general character of the plaintiff was proved to be good; and defendant then 
offered to prove that since the warrant had been sued out, plaintiff's general 
character, on other subjects not connected with this charge, was bad; the 
Court rejected the evidence, and instructed the jury, that it was necessary 
for the plaintiff to show, to their satisfaction, that the charge against him 
was malicious and preferred without any probable cause; that the dismissal of 
the warrant and the discharge of the plaintiff by the examining magistrates, 
were in law prima facie evidence of the want of probable cause; and when 
probable cause was wanting, the law inferred malice. It was also proved on the 
trial, by (84) the magistrate who issued the warrant, that at the time of 
granting it, Major R. Alexander, who was administrator on the estate of the 
man whose cattle were alleged to have been stolen, advised the defendant not 
to take out the warrant, as he would have the costs to pay. 

The jury found for plaintiff, and defendant moved for and obtained a rule on 
the plaintiff to show cause why there should not be a new trial; first, for 
misdirection of the Court as to the law on probable cause; secondly, for the 
rejection of proper evidence as to plaintiff's character: and lastly, for 
surprise in the testimony of the magistrate who issued the warrant. To support 
this last ground, the affidavits of defendant and of Major R. Alexander were 
filed; the first of which stated, that Alexander was so much intoxicated when 
the trial took place, that he was unfit to be examined; and farther, that no 
such advice as was deposed to by the magistrate had been given by Alexander, 
but directly the reverse. Alexander swore that he did not recollect having 
ever advised defendant not to sue out the warrant; that he had no cause to do
so, for he thought there were good grounds for a prosecution. The rule was 
discharged, and from the judgment rendered defendant appealed.

The ground of surprise was afterwards abandoned here by Mr. Wilson.

Wilson, for the appellant.—In an action of slander, the plaintiff may give in 
evidence his rank and condition in life to aggravate the damages, and the 
defendant may to mitigate them. Larned v. Buffington (3 Mass. Rep., 546).

As to the doctrine of probable cause: in a late case at nisi pruis, the 
plaintiff, to prove the charge malicious which had been made by the defendant 
before the magistrate, produced the defendant's information; Mr. Baron 
Richards observed, that such information being on oath, must be presumed to be 
true until the contrary was proved; and as the plaintiff gave no evidence to 
show his inno-(85)cence of the charge, directed the jury to find for the 
defendant. Carter v. Thomas (Norris' Peake, 223, note). But where the oath has 
not been credited by the grand jury, it seems formerly to have been the rule 
that the onus was on the defendant; but in the later decisions it has been 
held that in this case also the plaintiff must give some evidence of the want 
of probable cause. (9 East 361; 1 Camp. 199.) Incledon v. Berry (5 Taunt., 
187); Byrn v. Moore (2 Johns. R., 203); Secor v. Babcock.

Badger, for the appellee.

1. The want of probable cause was prima facie established by the discharge. 
This was adjudged by this Court, in Johnson v. Martin (3 Murph., 248). As 
authority that case is decisive. It was the duty of the Judge below to declare 
the law according to it. The court can grant a new trial only for error of the 
Judge. If he was bound to follow the adjudication made here, it cannot be 
error. To grant a new trial on this ground, will be equivalent to saying that 
the Courts below are not bound by the decisions of this Court, but must re-
examine, and when they please disregard them. Is the Court perpared to publish 
such a doctrine to the inferior tribunals, which destroys judicial
subordination, and prostrates the supremacy of this Court?

But laying aside the authority of Johnson v. Martin, as an opinion, it may be 
supported by the clearest and best established principles.

The decision of every judicial tribunal is evidence of the fact on which it is 
founded. It is evidence conclusive against parties and privies.

In prosecutions, the public, or sovereign, is the nominal accuser; but in 
fact, these prosecutions must often originate from private persons; and if 
they were at liberty to use the name of the sovereign, and while actually 
conducting the prosecution escape upon the ground that they were not parties 
on the record, the public law would be (86) abused, without remedy, for the 
basest purposes of individual malice or resentment. Hence it has been long 
established, that the actual prosecutor shall be responsible, and he is 
considered quasi a party. The proceedings are evidence against him; not 
conclusive, because he is not strictly a party; but prima facie, because he is 
substantially a party. It is only upon this ground that the action for 
malicious prosecution can be sustained at all; for if the prosecutor is not, 
as to any purpose, deemed a party, how is he responsible for the proceedings 
in any Court?

The determination upon the prosecution is then evidence against the prosecutor 
of the fact determined; and if the same question has been decided in favor of 
the accused, which is now in contest, such decision is prima facie evidence. 
What is the question in this action? It is, was there probable cause or ground 
for the prosecution? What was the question before the magistrate? Exactly the 
same.

Probable cause means less than prima facie evidence of guilt, namely, such 
circumstances as warrant suspicion. Locke v. U. States (7 Cranch, 339).

Now, if there be circumstances warranting suspicion, the magistrate must 
commit or hold to bail; if not, he must discharge. By discharging, he has 
determined there was no ground for suspicion, no probable cause; and, 
therefore, such discharge is evidence of want of probable cause. It is a 
judicial determination of the very question.

An acquittal by the traverse jury is no evidence of want of probable cause; 
not, as supposed on the other side, because evidence is heard from both 
parties, but because the acquittal does not proceed upon the want of probable 
cause, but the want of full proof of guilt.

So, of an ignoramus of the bill. It is not evidence as to 

ll-ll

probable cause. Eor probable cause will not warrant the finding of a bill; it 
requires prima facie evidence of guilt which is more. Thus the grand jury is 
always in-(87)structed upon a bill for murder, to find the bill if the fact of 
killing be brought home by proof to the party charged. To prove the homicide 
committed is prima facie evidence of a murder, and throws the burden of proof 
on the party charged.

The traverse jury determine, is there full proof of guilt? The grand jury, is 
there prima facie proof? The examining justice, is there ground of supicion, 
which is probable cause? Now the last is the very question here, and the 
discharge by the magistrate is therefore evidence of the absence of such 
ground of suspicion.

2. Was the evidence of the bad character of plaintiff, after the prosecution 
commenced against him (his character before being good), and upon matters 
entirely unconnected with the felony imputed to him, competent evidence? The 
case has been considered by the other side as similar to the action for 
slander, and to ask the question seems to decide it. The amount of damages is 
to be regulated, in law and the nature of things, by the value of that which 
is lost or assailed, and that is the character at the time of the slander 
uttered. This loss of character is evidence that the malice has taken effect; 
it is the very accomplishment of the slanderer's design. To admit it as 
mitigation, is to determine that a design to injure reputation followed by 
success, is less injurious than a fruitless effort to injure it. The 
proposition outrages all notions of justice and of reasoning; and if it be 
established as law, the spirit of defamation may indulge itself with impunity. 
No authority has been, nor can be, produced on the other side. The rule laid 
down in the most respectable writers, as well as in adjudged cases, confines 
the evidence to character before and at the time of the slander. (Phillips' 
Ev., ch. 7, s. 3, p. 146); Ld. Leicester v. Walter (2 Campb., 251, and cases 
there cited).

Hall, Judge.-I am not disposed to disturb the case of Johnson v. Martin, in 7 
N. C., 248. In the incipi-(88)ent stage of a prosecution before an examining 
magistrate, much less grounds of suspicion will induce him to bind over the 
accused for farther trial, than will warrant either the grand jury to find a 
true bill, or the petit jury to convict; and when the accused is discharged 
because a sufficient ground of suspicion has not been established against him, 
I can see no reason why such discharge should not furnish prima facie ground 
for an action against the prosecutor. If there was probable cause for the 
prosecution, and owing to any unforeseen accident it had not been made to 
appear before the magistrate, he may show it in his defence. I therefore think 
a new trial should not be granted on account of the first exception taken to 
the Judge's charge.

As to the second exception, which relates to the rejection of evidence offered 
by the defendant, I am of opinion it ought to have been received. Evidence in 
this action may be offered for two purposes; 1st, as an item in the defence 
when the plea of justification is relied upon; 2d, for the purpose of 
mitigating the damages, when a complete defence cannot be made out. When it is 
offered for the first purpose, it would be improper that it should relate to 
the plaintiff's character subsequent to the time when the prosecution 
commenced, because a knowledge of the plaintiff's bad character after that 
time ought not to be considered as a justification of what the defendant did 
before he acquired that knowledge. But if the plaintiff's character was bad 
before the commencement of the prosecution, evidence of it might be given, 
because that bad character, added to other circumstances, might be such a 
reasonable ground of suspicion as to induce a person, not governed by 
malicious motives, to take out a warrant to apprehend the person suspected; 
but a person who possessed a fair character, although in other respects 
similarly situated, might not be considered so fit a subject for a public 
prosecution. It certainly requires stronger circumstances of suspicion to 
commence a prosecution against a (89) man of good character than against a man 
of bad character. In this view of the case, character before the commencement 
of the prosecution may be gone into; but however had it may be afterwards, it 
can be no justification of what was done before.

But supposing the defendant to fail in his plea of justification, the next 
question is, as to the quantum of damages. There is no exact rule by which 
they can be measured, as in case of debt or assumpsit; but the inquiry of the 
jury must be directed to all the circumstances of the case, in order, as well 
as they can, to fix upon a rule. In order to ascertain the amount of injury 
done, they may inquire into the character of the person who complains that he 
has sustained the injury. If his character is good, the damages ought to be 
greater; if his character is bad, he certainly has not so much cause to 
complain, and the damages ought to be smaller. In this view of the case, I 
think the testimony ought to have been received as to the character of the 
plaintiff. I will illustrate what I have observed by a familiar case. 

Suppose a man indicted for a malicious prosecution, the jury, whose province 
it is only to bring in a verdict of guilty or not guilty, ought not to hear 
evidence of the bad character of the person supposed to be maliciously 
prosecuted, after the prosecution commenced, because that would be no 
justification for the prosecution; but if the same evidence went to character 
before the prosecution, tbey ought to hear it, for that, added to other 
circumstances, might be a justification, but the Court, when they fixed the 
fine, provided it was to go into the pocket of the injured party, instead of 
the public treasury, might inquire into character both before and after the 
prosecution.

I will make another remark in this case. If the evidence which the defendant 
wished to offer in this case, originated from the prosecution which turned out 
to be malicious, the damages ought on that account to be increased; if it (90) 
spring from other sources unconnected with it, they ought to be dismissed.

Henderson, Judge, concurred with Judge Hall in granting a new trial.

Taylor, Chief Justice, on one point differed with his brethren, and gave his 
opinion as follows:

This is an application for a new trial, on two grounds, viz., of misdirection 
of the Court in point of law; and the rejection of evidence offered by the 
defendant as to the plaintiff's character.

1. The principal ground of this action is, that a legal prosecution was 
carried on without a probable cause, and this must be expressly proved, and 
cannot be implied; but when this is established, malice is generally inferred 
from it; and both are necessary to support the action.

It was said, in the case of Johnson v. Martin, that a discharge by a 
magistrate after a full and fair hearing of the evidence, was a strong 
indication of the want of probable cause; and the position was then thought to 
be so obvious as to require neither authority nor argument for its support (3 
Murph., 248.)

It is yet believed to be correct, since, in the absence of particular evidence 
of the manner in which the magistrate discharged his duty, it must be 
presumed, that he acted in the ordinary and legal manner; and that, upon 
examining the evidence in the case, he discharged the plaintiff, under a 
belief that the suspicion entertained of him was wholly groundless.

The duty of a magistrate on such an occasion is thus described: "If, upon 
inquiry, it manifestly appears that no such crime has been committed, or that 
the suspicion entertained of the prisoner was wholly groundless, in such cases 
only, it is lawful totally to discharge him, otherwise he must be committed to 
prison, or give bail." (4 Bl., 296.)

It is the general usage with us, not to discharge (91) the accused, unless it 
appears that there is no probable ground to suppose him guilty, and in that 
case the discharge by the magistrate is lawful. The modern practice by 
magistrates in England has never been adopted here, nor is it by any means 
called for by the frequency or enormity of crimes. There a magistrate does not 
usually discharge the accused, unless it appears in the clearest manner that 
the charge is malicious as well as groundless. (1 Chitty, Cr. L., 89.) Our 
practice obtains in some of the sister states; for where a person was arrested
and brought before a magistrate on a charge made by another of a suspicious 
felony, and the justice being satisfied that the suspicion was groundless, 
discharged him. It was held that an action for malicious prosecution would lie 
against the accuser; and that a magistrate, if he be satisfied that there is 
no cause for a commitment, may discharge the Party accused. (2 Johns., 203.)

It is said to be a bad rule that will not work both ways. Let us apply this 
test to the inquiry, what would be the effect of the magistrate's committing a 
person accused of felony, or binding him in a recognizance to answer the 
charge? Clearly in an action brought against the accuser for a malicious 
prosecution, he might adduce this as prima facie evidence of the existence of 
probable cause; and this, unrepelled by evidence on the part of the plaintiff, 
would be sufficient evidence, even in a case where the plaintiff had been 
acquitted on his trial in Court. 

It would be competent for the plaintiff to introduce any other evidence to 
disprove the probable cause, which the magistrate's proceedings proved; but 
these, unanswered, or answered only by the subsequent acquittal of the 
plaintiff on his trial, would show that the defendant had probable cause for 
the prosecution; from the legal presumption that magistrates and courts are 
indifferent, and without malice, as to the accused. (4 Mun., 465.)

For these reasons, I am of opinion that evidence of (92) a discharge by the 
magistrate shows the want of probable cause. But it does not preclude the 
defendant from proving that he had probable grounds of prosecution; nor, as it 
seems, does the law exact from him the proof of legal grounds for the 
prosecution; for it will be sufficient to excuse him, if it appear from the 
circumstances of the case that he really believed the party to be guilty, and 
was actuated by an honest anxiety to bring him to justice. (Cro. Jac., 193.)

2. On the other question relative to the rejection of the evidence as to the 
plaintiff's character, it is important to view, in connection, the grounds and 
principles of this action for malicious prosecution, and the rules of evidence 
as to an inquiry into character.

A very accurate writer on the laws of evidence, in treating on this action, 
states that the defendant under the general issue may justify the proceedings 
against the plaintiff, and show that he had a probable cause for instituting 
them. If the charge against him was for felony, the defendant will be allowed 
in his defence to give evidence of the general bad character of the plaintiff; 
for in this case, when the point in issue is whether the defendant acted from 
malice, and without probable cause, it is material to inquire into the 
situation of the parties, and whether the defendant had any reasonable ground 
for suspecting the plaintiff. Now the notoriety of the plaintiff's character 
for dishonesty is a circumstance of suspicion not to be disregarded. (2 Phil. 
on Ev., 115; 2 Esp., 720; 2 Stark, 69.)

According to this rule, evidence, as to the plaintiff's character, is 
admissible only as throwing light upon the question of probable cause; and I 
have found no authority applicable to this form of action, authorizing its 
admission in mitigation of damages.

But in this case the evidence offered was as to the plaintiff's character 
after the warrant was sued out against him; yet as it was proved to be good 
before that period, (93) and furnished no probable ground of justification for 
the defendant's conduct, it is impossible that any could be derived from its 
subsequent falling off. Such evidence could have no tendency to throw any 
light upon the questions in issue in the cause; and its only effect could be 
to mitigate the damages. But I am not prepared to say, in the absence of 
authority enforcing a different rule, that a man who was maliciously, and 
without probable cause, brought before a magistrate on a charge of felony, at 
a time when his character was good, ought to recover less damages, because 
after that charge, and possibly in consequence of it, his character had 
contracted some opprobrium. My own opinion is to affirm the judgment. 

By a majority of the Court.

Judgment reversed. 

Approved. McRae v. O'Neal, 13 N. C., 166; Griffs v. Sellars, 19 N. C., 492.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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