#### Plummer v. Gheen.

> From Rowan. J

If a man prosecute another from real guilt, however malicious his motives may be, he is not liable in an action for malicious prosecution ; nor is lie liable if he prosecute him from apparent guiit, arising from circumstances, which he honestly believes.

The question of probable cause, is compounded of law and of fact; whether certain circumstances are true, is a question for the Jury; whether, being true, they amount to probable cause, is a question of law.

A party has a right to the opinion of the Court distinctly on the law, on the supposition, that he has established, to the satisfaction of the Jury, certain facts.

Case. The declaration contained two counts, the first for slanderous words spoken, in charging the Plaintiff *67with having committed a perjury; the second count was for a malicious prosecution.'

The words were proved to have been spoken 5 and in support of the second count, the Plaintiff gave in evidence a State’s warrant, which had been issued against him for perjury, upon the oath of the Defendant, and the record shewing that a hill of indictment, for perjury, had been preferred against the Plaintiff, in Rowan Superior Court, on which the Defendant was marked as prosecutor, and the return of the Grand Jury thereto, “nota true bill,” and that the Plaintiff had, thereupon, been discharged.

The Defendant relied upon the plea of justification, and there was much conflicting testimony; which, (as far as is necessary,) is brought into view, in the opinion of his honor the Chief Justice: the Defendant prayed the Court, to instruct the Jury, that if the witnesses were to be believed, probable cause was made out. On this part of the case, the Court (Donnell. Judge, presiding,) explained to the Jury, its view of the meaning of probable cause; that it was by no means necessary that it should he a good cause; that if the Plaintiff had taken the oath, in which the perjury was charged, in such a manner and under such circumstances as to warrant a reasonable suspicion in the mind of the Defendant that he had perjured himself, it was sufficient: that, all hough probable cause was partly a question of law, yet it was so dependant on facts and circumstances, of which the Jury were the only judges, on the various circumstances attending the transaction, and the knowledge the prosecutor had of\ those circumstances, on the conduct-of witnesses, and the inferences that might he drawn from their testimony; that in a ease like, this, in which the parties had gone into evidence of the whole transaction, and in which there was such contradiction in the testimony of many of ¡he witnesses, the court deemed it most proper to leave to the Jury, on this count in the declaration, to say w hether the Defendant had not this probable ground for suspicion, amounting to probable *68cause; and that if they should think so, they must find for him, on this count. Thai if they found for Plaintiff, the verdict might be general on both counts, or it might {,e 011 0„e only.

The verdict was general for the Plaintiff; an unsuccessful application for a new trial was made by Defendant, and from the judgment rendered, ho appealed: and now, Ruffin, for the Defendant, said, that probable cause was a question of law; Johnson v. Sutton,(i Term, R. 544;) and therefore, the Judge should uot have left it to the Jury to say, whether reasonable suspicion was probable cause, which is not an inference of fact, but of law. This distinction is of common occurrence; it exists in the law' of murder and manslaughter; each of which, the law defines, and does not leave to the Jury; so of reasonable time.

It is error in the Court below, to refuse to charge the Jury upon a point of law plainly arising in the cause; and the method taken by appellant’s counsel below, has the sanction of this Court. — Lcgget v. Blount. (yY. Ca. Term, R. 123.)

The whole matter, both of law and fact, was laid on the Jury; this deprives the party, under a general verdict, of the advahtage of bringing the matter of law in review ; because, it is impossible to say whether the Jury believed the witnesses, or w hether their verdict was founded on their opinion of the want of probable cause.

Taylor, Chief-Justice.

The most material ground of this action is, that a legal prosecution was carried on against the Plaintiff, without probable cause, and this it was incumbent on him to prove expressly, for it cannot be- implied. Where probable cause is absent, it is usual to imply malice, as well as the knowledge of the Defendant; hut the want of probable cause, cannot be implied from the most express malice. If a man prosecute another, from real guilt, however malicious *69jhis motives may be, lie is not liable in this action 5 nor is he liable if lie prosecute him from apparent guilt, arising from circumstances which he honestly believes. These principles1 have been repeatedly laid down, and sanctioned, and are necessary to be kept in view in considering the nature of the action. — (1 Tefm R. 544.)

In order to repel the prima facie evidence of the want of probable cause, arising from the indictment not being found a true bill, the Defendant introduced several witnesses for the purpose of shewing that the Plaintiff swore falsely, in two particulars, upon the trial of the warrants before the Magistrates. These were, 1st, as to the nature of the contract, between Mr. Winders and Robison, whether the rent was payable in money or .corn, at the option of the former. Secondly, whether the money was due presently, or payable in two months. Much evidence, on the first point, was adduced on both sides, to the end of shewing, on the part of the Plaintiff, that the contract was absolute for the payment of money, as he had sworn it to be; and on the part of the Defendant, that there was an option in the tenant to pay money or corn, and that, consequently, the Plaintiff had perjured himself. Whether he did, or not, depended on the weight and credibility of much conflicting evidence; but if the Jury believed that adduced by the Defendant, it is incontrovertible that there was probable cause for the prosecution; if, on the other hand, they believed that introduced by the Plaintiff, there was not, on this part of the case, any probable cause, and malice was to be inferred ; and this, I apprehend, is the instruction that ought to have been given by the Judge. O11 the second point, the Plaintiff swore, at the first trial, that he did not remember when the money was to be paid, whether in two, three, six months, or ever. On the second trial, which was shortly afterwards, he swore that the money was to he paid within two months; and it was on this occasion, when Mr. Winders called to the Plaintiff’s re*70collection what his testimony had been on the first trial,1 that the Defendant demanded a warrant against him. On this part of the case, it should have been submitted †0 j;j)e Jmy, to enquire whether the Plaintiff's two oaths were iii conflict with each other; and even if they were not, whether the circumstances were such as to produce apparent guilt, and raise a belief in the Defendant, that the Plaintiff had perjured himself? And, that, in either of these two cases, the Defendant should be acquitted on this part of the case.

As the question of probable cause, is compounded of law and fact, the Defendant had a right to the opinion of the Court, distinctly, on the law, on the supposition that he had established, to the satisfaction of the Jury, certain facts. Whether the circumstances were true, was a question for the Jury j whether, being true, they, amounted to probable cause, is a question of law.

It is true, that the Court explained to the Jury what probable cause was, and explained it correctly ,* but then, in the subsequent part of the charge, it is left at large for the Jury to say, whether the Defendant had not this probable ground for suspicion, amounting to probable cause. Whereas, the right instruction was, that if the Defendant had, in their opinion, tips probable ground of suspicion, it amounted, in point of law, to probable cause. I am of opinion, therefore, that there ought to be a new trial.

llAii and Henderson, Judges, concurred-,