Giusti v. del Papa

• Decision Date: 01 July 1895
• Citation: 19 R.I. 338,33 A. 525
• Parties: GIUSTI v. DEL PAPA.
• Court: Rhode Island Supreme Court

33 A. 525

19 R.I. 338

GIUSTI

v. DEL PAPA.

Supreme Court of Rhode Island.

July 1, 1895.

Action by Achilla Giusti against George Del Papa for malicious prosecution. On hearing before the appellate division of the supreme court the case was remitted with directions to dismiss, and enter judgment for defendant,

Willard B. Tanner, for plaintiff.

Joseph Osfield, Jr., for defendant.

PER CURIAM. The declaration alleges that the defendant maliciously prosecuted the plaintiff, and without probable cause. It then sets forth that the defendant caused the plaintiff to be arrested and brought before the district court of the Tenth judicial district, and to be bound over by that court to await the action of the grand jury, and to be indicted and tried, etc. No cause of action is set forth, since it is conclusive evidence of probable cause that the plaintiff was bound over, and, a fortiori, indicted, there being no allegation that the binding over and Indictment were procured by fraud, perjury, or other undue means. Welch v. Railroad Corp., 14 R. I. 609; Crescent City Live-Stock Co. v. Butchers' Union Slaughterhouse Co., 120 U. S. 141, 7 Sup. Ct. 472. Case remitted to the common pleas division, with direction to dismiss, and to enter judgment for the defendant for costs.

On Reargument.

(Jan. 13, 1896.)

MATTESON, C. J. In our former rescript we held that the declaration set forth no cause of action, because, though it alleged that the defendant maliciously prosecuted the plaintiff, and without probable cause, it went on to state that the defendant caused the plaintiff to be arrested and brought before the district court of the Tenth judicial district, and to be bound over by that court to await the action of the grand jury, and to be indicted, etc. We were of the opinion that, though the declaration averred that the prosecution was without probable cause, that allegation was overborne by the averment that the plaintiff was bound over by the district court to await the action of the grand jury, and was indicted by the grand jury, there being no allegation that the binding over and indictment were procured by undue means. We stated that the fact that the plaintiff was bound oyer, and, a fortiori, in dicted, was conclusive evidence of probable cause; referring in support of the statement to Welch v. Railroad Corp., 14 R. I. 609; Crescent City Live-Stock Co. v. Butchers' Union Slaughterhouse Co., 120 U. S. 141, 7 Sup. Ct 472. Counsel for the plaintiff has reargued the question. He criticises our use of the word "conclusive," contending that the binding over and indictment are not conclusive, but only prima facie, evidence of probable cause; that the only conclusive evidence of probable cause is the judgment of a court having power to convict, which judgment is conclusive of the question, even though subsequently set aside on appeal. He further contends that, as the binding over and indictment are only prima facie evidence of probable cause, it is not necessary to do more in the declaration than to allege that the prosecution was malicious and without probable cause. We think we shall be obliged to concede that the word "conclusive" was not well chosen, for since the decision in Burt v. Place, 4 Wend. 591, even a judgment has not been regarded as absolutely conclusive, since the presumption which would otherwise arise from it may be overcome by averment and proof that it was obtained by undue means. Marcy, J., in this case, states: "That if it appears by the plaintiff's own declaration that the prosecution which he charges to have been malicious was before a tribunal having jurisdiction, and was 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 of probable cause." The judgment relied on by the defendant, though by a court having jurisdiction to convict, was held not conclusive, because, as the opinion goes on to state, "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 defense, prevented the plaintiff from procuring the necessary evidence to make out that defense, by causing him to be detained a prisoner until the judgments were obtained, and by alleging that the imprisonment was for the purpose of preventing a defense to the actions." And see Spring v. Besore, 12 B. Mon. 551; Crescent City Live-Stock Co. v. Butchers' Union...