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Opinion of the Court.

And when there is no dispute of fact, the question of probable cause is a question of law for the determination of the court. Stewart v. Sonneborn, 98 U. S. 187, 194. Want of probable cause and the existence of malice, either express or implied, must both concur to entitle the plaintiff in an action for a malicious prosecution to recover. So that if probable cause is shown, the defence is perfect, notwithstanding the defendant in instituting and carrying on the action may have been actuated solely by a motive and intent of malice. If he had probable cause to institute his action, the motives by which he was actuated and the purposes he had in view are not material.

How much weight as proof of probable cause shall be attributed to the judgment of the court in the original action, when subsequently reversed for error, may admit of some question. It does not appear to have been judicially determined in Louisiana. In the case of Griffis v. Sellars, 3 & 4 Devereux & Battle Law, 177; S. C. 31 Am. Dec. 422, Ruffin, C. J., said “that probable cause is judicially ascertained by the verdict of the jury and judgment of the court thereon, although upon an appeal a contrary verdict and judgment be given in a higher court." In Whitney v. Peckham, 15 Mass. 243, such a judgment was held to be conclusive in favor of the existence of probable cause. To the same effect is Herman v. Brockerhoff, 8 Watts, 240, in an opinion of Chief Justice Gibson. The decision in the case of Whitney v. Peckham, ubi supra, however, was questioned by the Supreme Court of New York in the case of Burt v. Place, 4 Wend. 591, 598, where · Marcy, J., delivering the opinion of the court, said that the Massachusetts decision rested entirely upon Reynolds v. Kennedy, 1 Wilson, 232, which had been qualified by the decision of Eyre, Baron of the Exchequer, in Sutton v. Johnstone, 1 T. R. 493, 505, and by what was said by Lord Mansfield and Lord Loughborough in the same case, which came before them on a writ of error. 1 T. R. 544 et 8eq. The effect of these English authorities, as stated by Marcy, J., in Burt v. Place, ubi supra, is as follows: “ That if it appears by the plaintiff's own declaration that the prosecution, which he charges to have been malicious, was before

Opinion of the Court.

a tribunal having jurisdiction, and was there decided in favor of the plaintiff in that court, nothing appearing to fix on him any unfair means in conducting the suit, the court will regard the judgment in favor of the prosecution satisfactory evidence cf probable cause."

In that case the judgment relied upon by the defendant was held not to be conclusive. The reason is stated to be as follows: “Though the plaintiff admits in his declaration that the suits instituted before the magistrate by the defendant were decided against him, he sufficiently countervails the effect of that admission by alleging that the defendant, well knowing that he had no cause of action, and that the plaintiff had a full defence, prevented the plaintiff from procuring the necessary evidence to make out that defence by causing him to be detained a prisoner until the judgments were obtained, and by alleging that the imprisonment was for the very purpose of preventing a defence to the actions.”

Commenting on this case, the Court of Appeals of Kentucky in Spring v. Besore, 12 B. Mon. 551, 555, say: “The principle settled in the case last cited we understand to be that such a judgment will not in every possible state of case be deemed to be conclusive of the question of probable cause; but that, like judgments in other cases, its effect may be destroyed by showing that it was procured by fraud or other undue means.” That court proceeds to state the rule as follows: “The correct doctrine on the subject is, in our opinion, that the decree or judgment in favor of the plaintiff, although it be afterwards reversed, is, in cases where the parties have appeared and proof has been heard on both sides, conclusive evidence of probable cause, unless other matters be relied upon to impeach the judgment or decree and show that it was obtained by fraud; and, in that case, it is indispensable that such matter should be alleged in the plaintiff's declaration; for, unless it be done, as the other facts which have to be stated establish the existence of probable cause, the declaration is suicidal. The plaintiff's declaration will itself always furnish evidence of probable cause when it states, as it must do, the proceedings that have taken place in the suit alleged to be malicious, and

Opinion of the Court.

shows that a judgment or decree has been rendered against the plaintiff. To counteract the effect of the judgment or decree and the legal deduction of probable cause, it is incumbent upon him to make it appear in his declaration that such judgment or decree was unfairly obtained, and was the result of acts of malice, fraud, and oppression on the part of the defendant, designed and having the effect to deprive him of the opportunity and necessary means to have defeated the suit and obtained a judgment in his favor.”

The limitations upon the general principle declared in Burt v. Place, ubi supra, were followed by the Supreme Court of Maine, in Witham v. Gowen, 14 Maine, 362, and both decisions were referred to in the subsequent case of Payson v. Caswell, 22 Maine, 212, 226, where the court said: "In these two cases, we have instances of exceptions to the general rule, indicative of the general nature of the characteristics which might be expected to attend them; but the rule itself remains unimpaired. If there be a conviction before a magistrate having jurisdiction of the subject matter, not obtained by undue means, it will be conclusive evidence of probable cause."

The propriety of this limitation of the rule seems to have been admitted by the Supreme Judicial Court of Massachusetts in Bacon v. Towne, 4 Cush. 217, 236, though in later cases it reiterated the broader rule as originally stated in Whitney v. Peckham, ubi supra. Parker v. lluntington, 7 Gray, 36; S. C. 56 Am. Dec. 455.

This seems to reconcile the apparent contradiction in the authorities, and states the rule, which we think to be well grounded in reason, fair and just to both parties, and consistent with the principle on which the action for malicious prosecution is founded.

It is, perhaps, not material in this case to define the rule with precision, and to attempt to state with accuracy


precise effect to be given to a judgment or decree of the court as proof of probable cause under all circumstances, because in the present case the decree of the Circuit Court of the United States was adjudged to be entitled to no effect whatever as evidence in support of the defence of the plaintiff in error.

Opinion of the Court.

The ground on which the Supreme Court of Louisiana proceeded, as stated in its opinion, is explained to be as follows:

Shortly after the adoption of the Constitution of 1879, the plaintiff in error instituted a suit in the state court of Louisiana, which was finally decided by the Supreme Court of the state in Crescent City Slaughter-House Co. v. The City of New Orleans, 33 La. Ann. 93t. The object of the suit was to obtain a writ of injunction“ restraining the city of New Orleans from entertaining any petitions for, and from ever designating any place or places for, the landing, yarding, sheltering, or slaughtering any animal or animals intended for human food in the parishes of Orleans, Jefferson, and St. Bernard, other than at the slaughter-houses and premises of the petitioner, and above the United States barracks on the east or left bank of the Mississippi River, and above the depot of Morgan's Louisiana and Texas Railroad, on the west or right bank or side of the Mississippi River.”

There was a judgment dismissing the plaintiff's suit, and dissolving the injunction provisionally granted, from which the plaintiff appealed to the Supreme Court of Louisiana. That court affirmed the judgment, holding that the articles of the new constitution had destroyed the monopoly claimed by the plaintiff, and that this was a valid exercise of power on the part of the State of Louisiana, not in violation of any provision of the Constitution of the United States. Speaking of the action of the present plaintiff in error in bringing that suit, the Supreme Court of Louisiana, in its opinion in the present case, 37 La. Ann. 871, 876, says: “ The questions involved were serious and important. Defendant's right to assert judicially the validity of his contract, and to resist by all legal remedies the execution of any state law which impaired it, was unquestioned. The question involved was Federal in its nature, and the courts of the state, and perhaps of the United States, were equally open to it for the vindication of its alleged right; and, in either forum, it was entitled to appeal to the Supreme Court of the United States for the final and conclusive settlement of the question.” And, referring to the judgment in that suit, it also says: “It is important to estimate the scope and effect of


Opinion of the Court.

this decision. It was an authoritative judicial determination, by a competent court, of questions submitted to it at the instance of the company itself. In denying the rights claimed by the company, and in affirming the right of the city to regulate slaughtering within her limits and to designate places for the conduct of such business, it necessarily affirmed the right of persons complying with such regulations to transact that business at such places, and denied the right of this company to interfere with them. If there was error in the decision, that error could be corrected by one tribunal only, the Supreme Court of the United States. Until the questions involved had been determined differently by that high tribunal, the decision of this court was entitled to be accepted as the law by this litigant. Technical principles of lis pendens and res judicata might not debar the company from prosecuting another suit against a different party involving the same subject-matter ; but if such suit rested exclusively upon the assertion of rights which this court had directly determined that the company did not possess, it could find no protection against the charge of being a malicious prosecution, save in the production of a decision of the Supreme Court of the United States holding that our opinion was error.”

The following extracts from the same opinion are on the same point :

“We are bound to hold that there was entire absence of probable cause. The suit involved absolutely nothing but questions of law. Those identical questions had been submitted to this court by this very prosecutor in a case precisely analogous, and had been determined against it. It was thus authoritatively advised what the law was. If it was dissatisfied with the opinion, its remedy was clear by appeal to the United States Supreme Court, and it had actually availed itself of that remedy on writ of error which was pending and undetermined When this suit was brought. It must be carefully observed that, though the Butchers' Union Company was not technically a party to the suit against the city, the questions of right between it and the Crescent City Company were as directly inVolved as if it had been a party. If the city had the right to

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