Ulmer v. Leland

• Decision Date: 01 October 1820
• Citation: 1 Me. 135
• Parties: ULMER v. LELAND
• Court: Maine Supreme Court

1 Me. 135

ULMER v. LELAND

Supreme Judicial Court of Maine, Counties of Hancock, Washington and Penobscot

October, 1820

Trespass on the case, for a malicious prosecution before a military court of inquiry holden at Portland, on certain charges preferred by the defendant and two other officers of the 34th regiment of United States' infantry, against the plaintiff, who was Colonel of a regiment of volunteers stationed at Eastport, and in 1812, and 1813, was commandant of all the troops stationed at the latter place. Of these charges the plaintiff had been honourably acquitted.

At the trial of this action at the sittings after June term, 1818 before Parker C. J. the jury were instructed that if they should believe that the prosecution before the military court was preferred from motives of malice or revenge, still, if they were satisfied that the defendant had probable cause for believing that the charges were true, their verdict ought to be in his favour:--and whether probable cause was fully made out or not, was left to the jury to decide, as a matter of evidence. A verdict being thereupon returned against the defendant, he moved for a new trial, alleging that the jury ought to have been instructed, as a matter of law, whether the facts proved amounted to probable cause or not; --and that the verdict was against evidence.

New trial granted.

Leland in support of the motion.

There are two points on which the action for malicious prosecution is founded; --1. want of probable cause,--2. malice. If either of these be wanting, the action cannot be maintained. The latter point is the exclusive province of the jury; and in the present action they have found it to exist. But the former belongs, partially at least, to the Court; and is never to be left at large to the jury, as it was in this case.

Probable cause is a reasonable ground of suspicion against the party accused, arising from existing facts, from which the Court may infer that the prosecution was undertaken from public motives. Johnston v. Sutton, 1 D. & E. 529. Manns v. Dupont De Nemours, 4 Hall's Law Journal No. 1. p. 102. Smith v. McDonald, 3 Esp. 7. Paine v. Rochester, Cro. El. 871. Reynolds v Kennedy, 1 Wils. 232. Whitney v. Peckcham, 15 Mass. 243. Cox v. Winall, Cro. Jac. 193. Yelv. 105. Rol. Abr. 113. cited in Gilb. Ca. 188.

And what shall be deemed probable cause, is a matter upon which the Court, not the jury, shall decide. Buller N. P. 14. Selwyn N. P. 943. 1 Wils. 232. 1 Camp. 207. note. Johnston v. Sutton, 1 D. & E. 545. 4 Hall's Law Journal 102.

If the prosecution were ever so maliciously carried on, yet if there be probable cause, this action does not lie. 6 Mod. 25. 73. Gilb. Ca. 185. 3 Bl. Com. 126. 2 Munf. 10. Selwyn N. P. 943. 4 Burr. 1974. It is an action not to be favoured, being against the policy of the law. 1 Salk. 15. Saville v. Roberts, 2 Esp. N. P. 536. 1 D. & E. 493.

Here Leland examined the facts as contained in the Judge's report, contending that they fully substantiated sufficient probable cause for the prosecution, and that the jury ought to have been so instructed by the Court.

Abbot, for the plaintiff.

It is not for the defendant to say that he had probable cause, because he suspected the charges to be true. He ought to have known the fact, with certainty. It appears that he was an officer in the plaintiff's own regiment at the time when the transactions complained of took place; --and his situation gave him the means of certainly knowing whether the plaintiff was guilty of any military misconduct or not. Besides, such military prosecutions of a superior officer by a subaltern are not to be tolerated. They are contrary to public military policy, and subversive of the discipline of the army. Johnston v. Sutton, 1 D. & E. 529. And the authorities cited, relating to prosecutions at common law, are inapplicable to the case at bar.

But admitting this action to stand on the same foundation and to be governed by the same principles with actions for malicious prosecution generally; yet it is observable that here are no facts stated in the declaration from which probable cause might or might not appear. It was a matter of evidence to come out upon the trial; --and the Court must now be considered as having been fully satisfied that the evidence did not amount to probable cause, since they left it generally to the jury.

OPINION

WESTON, J. after stating the facts, delivered the opinion of the Court as follows:

Whether this action can be sustained for a prosecution of this kind, is a question not now presented to the consideration of the Court.

The essential foundation of an action of this nature...