Toth v. Greisen

• Decision Date: 16 April 1902
• Citation: 51 A. 927
• Parties: TOTH v. GREISEN.
• Court: New Jersey Supreme Court

51 A. 927

TOTH

v. GREISEN.

Supreme Court of New Jersey.

April 16, 1902.

Certiorari to Perth Amboy district court.

Action by Mike Toth against Hans Greisen. Heard by consent of parties, under Practice Act, § 295. Judgment of nonsuit, and the prosecutor brings certiorari. Reversed. Argued February term, 1902, before FORT, J.

Joseph E. Strieker, for prosecutor.

W. A. Spencer, for defendant.

FORT, J. In this class of cases, for the plaintiff to recover, four things must be proven: (1) The arrest; (2) malice; (3) want of probable cause; (4) that plaintiff has been acquitted or discharged. Shir. Lead. Cas. p. 352. The first and fourth are always easy of proof. The second is a prima facie inference from the proof of the third. Baron v. Mason, 31 Vt 189. See note to 2 Greenl. Ev. (15th Ed.) p. 452. Whether the plaintiff has established the third is for the court if the facts proven as to probable cause are undisputed, but if there be controversy about them the question is for the jury. Bell v. Railroad Co., 58 N. J. Law, 227, 33 Atl. 211. The defendant may show probable cause on his defense, and also rebut the presumption of malice by facts showing there was no malice. Where a plaintiff proves he was arrested by a defendant for stealing boards, after he had notified the defendant that he had not stolen them, and that the presence of the boards on the premises occupied by him was unknown to him, and that there were two other families with male and female adult members living on the same premises, and further proves that, before the hearing on the complaint against him, he had told the defendant he was innocent of the charge, and requests him to abandon it, and that subsequently he was acquitted of the charge, after indictment, he has made a prima facie case of want of probable cause, and presumption of malice, which will put the defendant upon his defense. In this case all the facts just stated were proven and were uncontroverted when the plaintiff rested, and the nonsuit was error. Potter v. Casterline, 41 N. J. Law, 22, 28.

The nonsuit will be set aside, and a new trial will be ordered.