Boyd v. Cross

• Decision Date: 15 February 1872
• Citation: 35 Md. 194
• Parties: JOSEPH E. BOYD v. TRUEMAN CROSS.
• Court: Maryland Court of Appeals

35 Md. 194

JOSEPH E. BOYD v. TRUEMAN CROSS.

Court of Appeals of Maryland

February 15, 1872

APPEAL from the Circuit Court for Baltimore County.

Sometime in November, 1868, the appellant appeared at the counter of the Commercial and Farmers' National Bank in Baltimore city, and presented a check on said bank, purporting to have been drawn by Cox & Brown, commission merchants in said city. The teller of the bank to whom the check was handed, noticing that the amount called for in the body of the check, was different from the amount indicated by figures, remarked that there was something wrong about it; to this the appellant responded, yes, he thought so too--that he wanted information about it, and thereupon handed to the teller a letter addressed to himself, in which the check had been enclosed and which he alleged he had received that morning through the mail. The teller then presented the letter and check to the appellee, the cashier of the bank, remarking that he thought it a case of forgery as Cox & Brown had no account in the bank. The appellee came out of his room and requested a director of the bank to procure a police officer. An officer was brought in immediately, who after conversing with the appellant and appellee, took the former into custody and carried him to the counting room of Cox & Brown, where the check was pronounced a forgery, and a member of the firm stated that he had known the appellant for eight or nine years, and had alwaws found him a very correct man, and was satisfied that he had nothing to do with the forgery of the check--that some one was trying to play a trick on him. The officer returned to the bank with the appellant, and reported to the appellee what had thus been said. Shortly thereafter the officer took the appellant to the Station House, where he was charged with attempting to pass a check upon the Commercial and Farmers' National Bank, knowing the same to have been a forgery. He was detained at the Station House until the next morning, when he was committed to jail, whence after a brief detention, he was released on bail; and was finally discharged by order of the Grand Jury, in February 1869, the real forger in the meantime having been convicted upon confession.

In March, following, the appellant instituted an action for malicious prosecution and false imprisonment, in Baltimore City Court, against the appellee and the Commercial and Famers' National Bank. The defendants pleaded the general issue. The case was removed upon the suggestion and affidavit of the plaintiff to the Circuit Court for Baltimore County where it was tried as for malicious prosecution alone. During the trial the plaintiff admitted that the evidence offered by him was not sufficient to establish a case against the bank and the jury rendered a verdict for the other defendant, and judgment was entered thereon. The plaintiff appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, ALVEY and ROBINSON, J.

John Henry Keene, Jr., for the appellant.

C. B. Slingluff and John P. Poe, for the appellee.

ALVEY J., delivered the opinion of the Court.

This was an action instituted by the appellant against the appellee and the Commercial and Farmers' National Bank, for malicious prosecution and false imprisonment; the case being tried as for malicious prosecution alone.

All the prayers on the part of the defendants, except the 7th and 8th, were conceded by the plaintiff. He also conceded that the evidence offered by him failed to make any case against the bank; and the Court, by granting the 8th prayer of the defendants, instructed the jury that there was no evidence of malice or want of probable cause as against either of the defendants, for the alleged malicious prosecution, and that, therefore, the plaintiff was not entitled to recover; and as this Court fully concurs in the correctness of that instruction, it becomes unnecessary to examine the questions raised by other prayers, whether offered by plaintiff or defendants.

To have entitled the plaintiff to recover for malicious prosecution, it was incumbent upon him to prove affirmatively, that he had been prosecuted, or that a prosecution had been instigated, by the defendants, or one of them; that such prosecution had terminated in his discharge or exoneration from the accusation against him; and that such prosecution was both malicious and without probable cause on the part of the defendants. All of these propositions must concur, and be established by the plaintiff, to entitle him to maintain his action. If the evidence adduced be legally insufficient to be submitted to the jury to prove each and all of these elements of the plaintiff's case, his action could well be pronounced groundless, and the defendant not be called on for his defence. Turner vs. Walker, 3 G. & J., 377; Cecil vs. Clarke, 17 Md., 508; Williams vs. Taylor, 6 Bing., 183; Wheeler vs. Nesbitt, 24 How., 544.

Malice is a question of fact for the jury, and its existence may be and most generally is inferred from the want of probable cause for the prosecution; but it does not necessarily follow that because there is an absence of probable cause, the defendant must have been actuated by malice. The presumption of malice, resulting from the want of probable cause, is only prima facie, and may be rebutted by the circumstances under which the defendant acted. But from the most express malice, the want of probable cause cannot be implied.

The want of probable cause is a mixed question of law and fact. As to the existence of the facts relied on to...