majority">By the Coitrt, Bronson, Ch. J.

There was evidence enough in the case to warrant the jury in finding, that the defendant set the prosecution in motion from a bad motive. But all the books agree, that proof of express malice is not enough, without showing also the want of probable cause.' Probable cause has been! defined, a reasonable ground of suspicion, supported by circum-j stances sufficiently strong in themselves to warrant a cautious , man in the belief, that the person accused is guilty of the offence with which he is charged. (Munns v. Nemours, 3 Wash. C. C. 37.) However innocent the plaintiff may have been of the crime laid to his charge, it is enough for the defendant to show, that he had reasonable grounds for believing him guilty at the time the charge was made. In Swain v. Stafford, (3 Iredell, N. Car. 289, and 4 id. 392,) the action was brought against the defendant, who was a merchant, for charging the plaintiff with stealing a piece of ribbon from his store. At the time the complaint was made, the defendant had received such information as induced a belief of the plaintiff’s guilt; and although it after-wards turned out that the property had not been taken by any one, and was never out of the defendant’s possession, it was held that an action for malicious prosecution could not be supported. The doctrine that probable cause depends on the knowledge or *620information which the prosecutor had at the time the charge was made, has been carriéd to a great length. In Delegal v. Highley, (3 Bing. N. C. 950,) which was an action for maliciously, and without probable cause, procuring a third person to charge the plaintiff with a criminal offence, the defendant pleaded specially, showing that the plaintiff was guilty of the offence which had been laid to his charge; and the plea was held bad in substance, because it did not show that the defendant, at the time the charge was made, had been informed, or knew the facton which the charge rested. The question of probable cause does not turn on the actual guilt or innocence of the accused; but upon the belief of the prosecutor concerning such guilt or innocence. (Seibert v. Price, 5 Watts & Serg. 438.)

Without going into a particular examination of the evidence in this case, it is enough to say that the defendant, at the time he went before the grand jury, had strong grounds for believing that the plaintiff had stolen the cattle : and, so far as appears, not a single fact had then come to his knowledge which was calculated to induce a different opinion. Although the plaintiff was in fact innocent, there would be no color for this action, if it were not for the fact that the defendant settled the matter with the plaintiff, instead of proceeding against him for the supposed offence. If the parties intended the settlement should extend so far as to cover up and prevent a criminal prosecution, the defendant was guilty of compounding a felony. And the fact that he made no complaint'until the plaintiff commenced the two suits against him, goes far to show that he was obnoxious to that charge ; and that he was governed more by his own interest, than by a proper regard to the cause of public justice. But however culpable the defendant may have been for neglecting his duty to the public, that cannot be made the foundation of a private action by the plaintiff. - Although the defendant may have agreed not to prosecute, and the complaint may have been afterwards made from a malicious feeling towards the plaintiff, still the fact of probable cause remains; and so long as it exists, it is a complete defence. There is enough in the defendant’s conduct to induce a rigid scrutiny of the defence. But *621if upon such scrutiny it appear, that he had reasonable grounds for believing the plaintiff guilty, and there is nothing to show that he did not actually entertain that belief, there is no principle upon which the action can be supported.

On a careful examination of the case, I am of opinion that the verdict was clearly wrong. But as the charge of the judge is not. given, we must presume that the case was properly submitted to the jury; and a new trial can therefore only be had on payment of costs.

Ordered accordingly.

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