Unless the evidence, in relation to the circumstances under which the prosecution was ended, and that given to establish the want of probable cause, justify the inference of malice, other evidence, in support of it, must be given.
Evidence as to the conduct of the defendant, in the course of the transaction, his declarations on the subject, and any forwardness and activity in exposing the plaintiff by a publication, are properly admitted to prove malice. Such evidence must be given as will justify a jury in finding the existence of malice.
The rule is uniformly stated, that, to maintain an action, for a former prosecution, it must be shown to have been without probable cause, and malicious. Vanduzer v. Linderman, 10 J. R. 110; Murray v. Long, 1 Wend. 140; 2d Stark. Ev. 494; Willans v. Taylor, 6 Bing. 183.
The judge, at the trial, charged, that the fact, that the plaintiff was discharged before the magistrate showed, prima facie, that there was no probable cause for the arrest, and shifted the burden of proof from the plaintiff to the defendant, who was bound to show, affirmatively, that there was probable cause.
He was requested to charge, “that the discharge of Vanderbilt was not prima facie evidence of the want of probable cause.” This he refused to do. To this refusal to charge, and to the charge as made, the defendant excepted.
He also charged, “that, if probable cause is made out, the question of malice becomes immaterial, except as bearing on the question of damages.”
“This question of malice, in fact, supposing that probable cause did not exist, is material only as affecting the question of damages.”
He was requested to charge, “that the jury could not find a verdict for the plaintiff, unless he has proved that there was no probable cause for the complaint, and not even then, unless they believed, from the evidence, that, in making the complaint, the defendant acted from malicious motives.” This the judge declined to do, and to his refusal to so charge the defendant excepted.
Although the evidence which establishes the want of probable cause may be, and generally is, such as to justify the inference of malice, yet we understand the rule to be, that when it is a just and proper inference from all the facts and circumstances of the case, upon all the evidence given in the cause, “that the defendant was not actuated by any improper motives, but only from an honest desire to being a supposed offender to justice, the action will not lie, because such facts and circumstances disprove that which is of the essence of the action, viz., the malice of the defendant in pressing the charge.”
In Bulkley v. Smith, 2 Duer, 271, the court stated the rule to be, “that, in order to maintain a suit for a malicious prosecution, the plaintiff is bound to prove the entire want of a probable cause for the accusation, and the actual malice of the defendant in making it. Malice is a question of fact, which, when the case turns upon it, must be decided by the jury.”