Frissell v. Relfe

• Decision Date: 31 January 1846
• Citation: 9 Mo. 859
• Court: Missouri Supreme Court
• Parties: FRISSELL v. J. H. & A. C. RELFE.

9 Mo. 859

FRISSELL

v.J. H. & A. C. RELFE.

Supreme Court of Missouri.

January Term, 1846.

APPEAL FROM ST. FRANCOIS CIRCUIT COURT.

COLE, for Appellant.

LEONARD & BAY, for Appellees. 1. The instructions of the court contain a correct exposition of the law governing the case. In order to maintain an action for a malicious prosecution, it is necessary for the plaintiff to show, 1st, that the prosecution was instituted from malicious motives; and. 2nd, that there was no probable cause for instituting the prosecution. If either of these be wanting, the action must fail. Stone v. Crocker, 24 Pick. 31; 2 Stark on Ev. 494-5; George v. Radford, 3 Car & P. 464; Gibson v. Chaters, 2 B. & P. 129; Silversides v. Bowley, 1 Moore, 92: Farmer v. Darling, 4 Burr, 1971. 2. The malice of the defendant may be inferred from the want of probable cause. Evidence of want of probable cause is given for the purpose of showing the malicious motives of the defendant. Mal ce is therefore of the gist of the action. Stone v. Crocker, 24 Pick. 81; Pangburn v. Bull, 1 Wend. 352; 2 Stark. on Ev. 495-6. 3. The facts preserved show that the charge of malice is unfounded. As to the “combination and conspiracy” charged, they existed only in the imagination of the plaintiff. There never was a charge so entirely disproved as this charge of a combination and conspiracy, on the part of the defendants, which is made the sole ground of the action. 4. The instructions given in relation to the powers and duties of a marshal of the United States, were not perhaps necessary, nevertheless they are correct.

NAPTON, J.

This was an action for a malicious prosecution brought by Frissell against James H. & A. C. Relfe, and A. L. Magenis, in the Circuit Court of Washington county, and transferred upon application of the Relfes, to St. Francois county. The defendants had a verdict and judgment. Before the trial a nolle prosequi was entered as to Magenis. The declaration charged a conspiracy and combination on the part of Magenis and the Relfes, to injure the plaintiff, by causing him to be fined and imprisoned, &c., and that by corrupt and false swearing of the said A. C. Relfe, a rule had been entered by the Circuit Court of the United States against the said plaintiff to show cause why an attachment should not issue; that these proceedings were groundless, without probable cause, and malicious.

Upon the trial it appeared that a venditioni exponas had been issued, directed to the marshal of the district of Missouri, commanding the sale of certain property which had been previously levied on under a writ of execution against one Augustus Jones. The writ of venditioni exponas was placed by the marshal in the hands of his deputy, A. C. Relfe, and upon the return of the writ, an affidavit was made by A. C. Relfe, that he was prevented from executing it, by the conduct of Frissell (the plaintiff) and others. Upon motion of the district attorney, A. L. Magenis, a rule was served upon Frissell to show cause why an attachment should not issue. Upon the appearance of Frissell, and his answer to this rule, he was discharged by the court.

The deposition of A. L. Magenis...