(a) Taylor v. Godfrey, 36 Me. 525; Bulkley v. Smith, Duer (N. Y.), 261; Bulkley v. Keteltas, 2 Selden (N. Y.), 384; Carpenter v. Shelden, 5 Sandf. (N. Y.) 77; Jacks v. Stimpson, 13 Ill. 701; Ash v. Marlow, 20 Ohio, 119; Kidder v. Parkhurst, 3 Allen (Mass.), 393. Judge Redfield, in his edition of this book, gives the following valuable note on this point: "Having had occasion to consider the subject of malicious prosecution very thoroughly in the case of Barron v. Mason, reported in 31 Vt. 189, we take the liberty of inserting here a large part of the opinion in that case, as embodying our views of the present law on this subject.

"The books upon this point all concur in saying that the plaintiff must prove (and of course the defendant may disprove) both want of probable cause and malice. And it is the duty of the court to instruct the jury fully and correctly upon the whole case, as the testimony tends to show the facts.

"If it be admitted that testimony that the plaintiff had been guilty of other similar offences, or that he was reputed guilty, and that this had come to the knowledge of the defendant before he instituted the prosecution, has no legal tendency to show either probable cause or want of malice in ordinary cases, such as larceny, it must also be admitted, we think, that in that class of offences where the gist of the crime consists in the bad purpose with which an act otherwise innocent is done, this kind of testimony is admissible, even upon the question of actual guilt, and much more upon that of probable cause. For probable cause is not to be confounded with actual guilt. Probable cause is only such a state of facts and circumstances as would lead a careful and conscientious man to believe that the plaintiff was guilty. This can only require that the defendant, upon prudent and careful inquiry, shall find the reputed or declared existence of such facts as indicate guilt, with reasonable certainty. Mere general reputation will not alone constitute probable cause. For a prudent man, in instituting an important criminal prosecution,

would ordinarily look farther, and inquire for testimony. But this he might fairly believe existed short of being told so by the witnesses themselves. It is not often the case, perhaps, that the public prosecuting officers, before making complaint, have opportunity to converse personally with the witnesses. But they should know something more than a mere vague general report of guilt. They should have information, with such directness and certainty as to gain credit with prudent men, of the existence and susceptibility of proof of such facts as show guilt; or which the defendant, upon proper advice, supposed would constitute guilt. This is the fair result of the decided cases, and of common experience upon the subject.

"Now, in the class of cases referred to, where the guilt or innocence of the act depends upon the motive, the conduct and declarations of the party, as to other similar transactions about the same time, are always admissible to prove actual guilt. As, for instance, in cases of passing, or having in possession with intent to pass, counterfeit coin or bills, it is familiar law that the prosecutor nay give in evidence other similar offences committed by the accused about the same time, for the purpose of showing his intent in the particular transaction. So also in cases of embezzlement, and some other similar offences. And this rule would no doubt extend to the proof of the very facts which the court in this case told the jury had no other effect but to mitigate damages.

"We should infer that the court below did not regard the question of malice as directly and independently involved in the

case.

From what of the charge is given, the question of malice seems to have been treated as a mere inference from the proof of the want of probable cause. And so it is, prima facie. But nevertheless, it may be disproved by a great variety of proof of a much lower grade than that which is requisite to show probable cause. For this purpose common repute, not only as to general bad character, but also as to the particular offence, may, we incline to think,

is held to import nothing more than bad faith, and, as applied to the subject of malicious prosecution, the want of sincere belief of the plaintiff's guilt of the crime for which the prosecution was instituted.

"The difference, then, between proof of probable cause and of malice consists chiefly in this: that probable cause has reference to the common standard of human judgment and conduct, and malice regards the mind and judgment of the defendant, in the particular act charged, as a malicious prosecution.

If the defendant can show that he had probable cause for his conduct, that is, that from such information as would induce a reasonable and prudent man to believe the plaintiff guilty of a crime, he instituted the prosecution, he is not liable, whatever may have been his own personal malice for setting it on foot. Probable cause, in this sense, is a defence to the action, without regard to motive. To this point he must show that he was told or knew of the existence of specific facts, which either would constitute crime, or which upon competent advice he supposed would constitute crime. French v. Smith, supra.

"But if the party fail in showing such ground of action as would have induced prudent, and careful men to have believed in the plaintiff's guilt, and to have instituted the prosecution, he may nevertheless, if he choose, show that in fact he did act upon what he at the time regarded as good cause, either from common report or remote circumstances, such as excited suspicions in his mind to the extent of creating belief of guilt, although short of probable cause.

"If this were not so, then want of probable cause and malice would be equivalent terms, which the cases show they are not. The only distinction which can be supposed to exist in regard to them is, that one is general and the other is particular; one has reference to the common standard, and the other to the mind and motive of the defendant. But how can that mind be reached without receiving proof of every fact which existed, and which may be presumed to have influenced the conduct of the defendant? If the subject were res integra, I should certainly re

gard common repute, both of the plaintiff's general bad character, and of his being guilty of the particular offence, good evidence of probable cause. Upon principle it should so be held. But in regard to common report of guilt of the particular offence, we are not prepared to say the decisions justify us in regarding it as evidence of probable cause.

"General reputation of guilt, in regard to the particular offence, may be no sufficient ground, in itself alone, for instituting proceedings against one in regard to criminal offences. But in doubtful cases, where the testimony is conflicting, and especially where it is expected to be drawn from those in the confidence or under the influence of the party accused, and where consequently there is difficulty of learning the full extent of testimony which can be obtained, until the witnesses are put upon giving testimony, and where, of course, a preliminary inquiry is often justified partly upon suspicion, and as an experiment, it is no doubt undeniable that the general belief in the guilt of the accused in regard to the particular offence will influence almost any one in deciding upon the propriety of instituting the prosecution. It is therefore, upon principle, I think, admissible as part of the ground constituting probable cause, and is, as we have before said, in point of character equivalent to hearsay, or the declarations of third persons in regard to the guilt of the plaintiff, which seems to be admitted everywhere in this class of cases. French v. Smith, supra; Bacon v. Towne, 6 Cush. 217. In this last case a new trial was awarded, among others, upon the ground that testimony was rejected at the trial, that some third party informed a fourth party of his knowledge of a fact tending to show the plaintiff guilty of the offence for which he was prosecuted, and requested this to be communicated to the defendant, which was done before the prosecution was instituted. This seems to us quite as remote, and rather less reliable, as a ground of instituting criminal proceedings, than that of common reputation and belief.

"But notwithstanding the satisfactory basis upon which the proposition seems to rest, that this evidence of common reputa

Thus, where the question was

tion, in regard to the particular offence, is, upon general principles, admissible, among other things, to show probable cause even, and especially to rebut the inference of malice in the defendant, the decisions do not show that such proof has been received or offered. This may have resulted from two reasons: that the same kind of evidence is obtainable by showing the general bad reputation of the plaintiff at the time of the prosecution; and also, that we do not always distinguish between the class of proof which is admissible in this action, when the issue is in regard to suspicion of guilt and probable cause to believe one guilty, and proof of the very fact of guilt. The general rule undoubtedly is, that general reputation of guilt in regard to a particular offence is not admissible to prove the fact of guilt, and never, unless it be upon the question of damages in regard to reputation in ordinary actions. Hence it is natural to throw this case of actions for malicious prosecution into the general class. These two grounds may account for this kind of proof not having been offered. Prudent counsel do not often desire to offer testimony in one form when its admissibility is questionable, if there is a safe ground upon which it is clearly admissible. It may not, therefore, be important to decide this point here, since it is really involved in the next point. But if it were necessary, we must certainly hold the proof admissible.

"This brings us to the question of the admissibility of evidence of the general reputation of the plaintiff, at the time of instituting the prosecution, in regard to whether he would be easily induced into the commission of any similar offence, for this is the view in which character has any proper bearing in regard to crime. If the offence is one of outrage and violence, whether the accused is commonly reputed a peaceable, quiet, and orderly behaved citizen, or a noisy, boisterous, and quarrelsome one. And if, on the other hand, the offence is one involving fraud, collusion, dishonesty, and secret practices, whether the man is of a fair, frank, honest, and outspoken character, or the contrary. Some of the cases go to exclude all evidence of this kind. Newsam v. Carr, 2 Stark. Cases, 69.

"But it seems to us there can be no

doubt that to this extent it is admissible upon the strictest principles, and for the purpose of showing probable cause. It is precisely that kind of proof which the accused might show in his own defence, and its absence must weigh more or less against him in regard to the very offence for which the prosecution was instituted. To say then that a prosecutor, in calculating the reasonable and probable grounds of instituting a prosecution for crime, is not to take into account one of the very elements of the defence, and, in one event, of the prosecution also, is simply absurd. It is a proposition admitting of no question whatever, and which could never have been made a question, had its proper application to the subject, in the view just alluded to, been fully appreciated. And the decided cases, notwithstanding some exceptional ones, fully sustain this view. In the elabo rate case of Bacon v. Towne, 4 Cush. 217, this subject is discussed by Chief Justice Shaw, and the same conclusion arrived at which we here adopt, citing Rodriquez v. Tadmire, Esp. 721; Wood v. United States, 6 Pet. 342, 366; 2 Greenl. Ev. § 458. That it is evidence to rebut malice is beyond all doubt, if the party can show that he believed it.

"That the English courts regard the question of malice as a distinct question, and in issue in every case of this kind tried upon the general issue, or which may always be put in issue by the defendant, the cases abundantly prove. In Williams v. Taylor, 6 Bing. 183, Tindal, C. J., said: 'What shall amount to such a combination of malice and want of probable cause is so much matter of fact in each individual case as to render it impossible to lay down any general rule upon the subject; but there ought to be enough to satisfy a reasonable man that the accuser had no ground for proceeding but his own desire to injure the accused." In Mitchell v. Jenkins, 5 B. & Ad. 588, Denman, C. J., said: 'It is still incumbent upon the plaintiff to allege and prove malice, as an independent fact. They [the jury], however, are to decide, as matter of fact, whether there be malice or not.' Parke, J., said the defendant is excused, if acting bona fide under a wrong notion of the law, and pursuant to legal advice.' Patterson, J., said, 'and the jury [are to decide] that there is malice.' And