1. To sustain an action for malicious prosecution, the failure
of the proceedings against the plaintiff must be averred and
proved, but such failure is not evidence of the defendant's malice
or want of probable cause in instituting them.
2. Malice, the existence of which is a question exclusively for
the jury, and want of probable cause must both concur to entitle
the plaintiff to recover, and although the jury may infer malice
from the want of probable cause, proof even of express malice will
not justify the inference that probable cause did not exist.
3. The question as to what amounts to probable cause is one of
law in a very important sense. It is therefore generally the duty
of the court, when evidence has been given to prove or disprove the
existence of probable cause, to submit to the jury its credibility,
and what facts it proves, with instructions that the facts found
amount to proof of probable cause or that they do not.
4. A seeming exception to this rule may grow out of the nature
of the evidence, as when the defendant's belief of the facts which
are relied on by the plaintiff to prove want of probable cause is a
question involved. What that belief was is always a question for
the jury.
5. In an action by A. to recover damages for the alleged
wrongful and malicious institution of proceedings in bankruptcy
against him, by B. & Co., the defendants asked the court to
charge that if the jury believed from the evidence that they, in
prosecuting an action of debt against him, had acted on the advice
of counsel, and upon such advice had an honest belief in the
validity of the debt sued for and of their right to recover it, and
in the institution of the bankruptcy proceedings had acted likewise
on such advice, and under an honest belief that they were taking
and using only such remedies as the law provided for the collection
of what they believed to be a
bona fide debt, they having
first given a full statement of the facts of the case to counsel,
then there was not such malice in the wrongful use of legal
proceedings by them as would entitle A. to recover. The court
declined so to charge.
Held 1. that the instruction should
have been given; 2. that the facts therein stated constituted in
law a probable cause, and being such, the existence of malice, if
such there was, would not entitle the plaintiff to recover.
6. The jury, if they find for the plaintiff, cannot, in
estimating his damages, consider the fees of counsel in prosecuting
the suit.
This was an action brought by Meyer Sonneborn, the plaintiff
below, against A. T. Stewart & Co., to recover damages for an
alleged wrongful and malicious institution of proceedings in
bankruptcy against him. The record shows that in the years 1865 and
1866, Sonneborn was a member of the firm of
Page 98 U. S. 188
E. Leipzeiger & Co., in New York, and that while he was thus
a member, the firm bought goods on credit from A. T. Stewart &
Co. Sometime in 1866 he withdrew from the firm, but no notice of
his withdrawal was published, and the firm continued business in
its old name without any apparent change. In the spring of 1867,
the defendants sold other goods on credit to E. Leipzeiger &
Co., as they allege, without any notice that Sonneborn had
previously withdrawn from the firm. On the other hand, he alleges
that he did give personal notice of his withdrawal to one of the
clerks in the defendants' store before the purchases of 1867 were
made. No payment for these latter purchases having been made, the
defendants in 1869 sued the plaintiff to recover the debt in the
Circuit Court for Barbour County, Alabama, and after trial a
verdict and judgment were given against them. This was at the
August Term, 1871. From the verdict and judgment the defendants
prosecuted an appeal to the supreme court of the state, where the
judgment was reversed and a new trial was ordered. On the 12th of
May, 1873, before the case came on for a second trial, one Jonas
Sonneborn, a brother of the plaintiff, brought suit against him in
the Eufaula City Court, and one month afterwards recovered a
judgment by default for $6,944.43 (the present plaintiff having
made no resistance), and thereupon an execution was issued and
levied. This proceeding having come to the notice of A. T. Stewart
& Co. (and they having been advised by legal counsel that an
act of bankruptcy had thereby been committed by Sonneborn), on the
15th of August, 1873, they filed their petition in the District
Court, praying that he might be declared a bankrupt and that a
warrant might issue to take possession of his estate. They
represented themselves to be creditors for the sales made to E.
Leipzeiger & Co. in 1867, of which firm they averred Sonneborn
was a member, and the act of bankruptcy alleged was that on the
12th of June, 1873, he suffered and permitted a judgment to be
recovered against him by default in favor of Jonas Sonneborn, in
the City Court of Eufaula, upon which an execution had issued,
whereon a levy had been made. Upon this petition, a rule to show
cause, &c., was awarded, an injunction issued, and a warrant
for provisional seizure granted, which on the 19th
Page 98 U. S. 189
of August, 1873, was executed. Such was the situation when the
case of the defendants against the plaintiff came on for the second
trial in the Barbour County Circuit Court. The result of that trial
in November, 1873, was a judgment for Sonneborn, which was
subsequently affirmed by the supreme court of the state at its June
Term, 1874. It thus having been determined that the defendants were
not creditors of Sonneborn, the proceedings in bankruptcy were
dismissed and the present suit was brought, alleging that they had
been prosecuted maliciously and without probable cause.
There was a verdict for the plaintiff for $21,000 and costs,
and, judgment having been entered thereon, Stewart & Co. sued
out this writ of error. So much of the charge of the court below as
was excepted to by the defendants, and also the instructions
requested by them and refused, are set forth in the opinion of the
Court.
Page 98 U. S. 191
MR. JUSTICE STRONG, after stating the case, delivered the
opinion of the Court.
The errors now assigned are exclusively to the charge given by
the court to the jury. The instruction given was,
inter
alia, as follows:
"But if they [the defendants] had no legal claim or demand
against the complainant [Sonneborn], then, whether they had
probable cause or not, they had no right to institute the
proceedings [in bankruptcy]. They cannot go back and allege that,
though they had no legal claim against him, they thought they had
-- in other words, that they had probable cause to believe that
they had such a demand. Unless they had a debt, they cannot allege
probable cause for proceeding in bankruptcy at all. Their defense
cannot stand on two probable causes, one on top of the other. . . .
As it has been adjudicated by the Circuit Court of Barbour County
and affirmed by the state supreme court that the defendants never
had a legal claim against the plaintiff, and therefore had no right
to institute proceedings in bankruptcy against him, the plaintiff
is entitled to recover in this action the damages he has sustained
by those unlawful proceedings. The court therefore rules that the
defense in this case cannot be sustained by proving that the
defendants had probable cause to believe that the plaintiff had
committed an act of bankruptcy; but it being shown by judicial
determination that they had no legal claim or debt against the
plaintiff, and had therefore no right to institute bankruptcy
proceedings, they are liable for the damages sustained by the
plaintiff thereby, and the only
Page 98 U. S. 192
question for the jury will be the amount of the damages, under
the circumstances of the case. . . . We charge you, therefore, that
the plaintiff is entitled to recover his actual damage, or the loss
he has actually sustained at all events."
And again: "The actual damages sustained by the complainant,
that you will give him a verdict for at all events."
This construction, we think, was erroneous, and emphatically so
in view of the facts which appeared in evidence. It ignores totally
the question whether the conduct of the defendants had been
attended by malice, though the plaintiff's declaration charged
malice, and it denied all importance to the necessary inquiry,
whether they had probable cause for their action. More than this,
it disregarded entirely evidence of facts which have been
determined to be in law a perfect defense to an action for a
malicious prosecution. The jury were positively instructed to
return a verdict for the plaintiff independently of any
consideration of malice in the institution of the bankruptcy
proceedings or want of probable cause therefor. If the charge was
correct, then every man who brings a suit against another with the
most firm and reasonable belief that he has a just claim and a
lawful right to resort to the courts is responsible in damages for
the consequences of his action if he happens to fail in his suit.
His intentions may have been most honest, his purpose only to
secure his own, in the only way in which the law permits it to be
secured; he may have had no ill feeling against his supposed
debtor, and may have done nothing which the law forbids. Such is
not the law. It is abundantly settled that no suit can be
maintained against an unsuccessful plaintiff or prosecutor unless
it is shown affirmatively that he was actuated in his conduct by
malice or some improper or sinister motive. Malice is essential to
the maintenance of any such action, and not merely (as the circuit
court thought) to the recovery of exemplary damages.
Notwithstanding what has been said in some decisions of a
distinction between actions for criminal prosecutions and civil
suits, both classes at the present day require substantially the
same essentials. Certainly an action for instituting a civil suit
requires not less for its maintenance than an action for a
malicious prosecution of a criminal proceeding.
Nicholson v.
Coghill, 4 Barn. & Cress. 21;
Webb
Page 98 U. S. 193
v. Hill, 3 Carr. & P. 485;
Burhams v.
Sanford, 19 Wend. (N.Y.) 417;
Cotton v. Huidekoper, 2
Pa. 149.
In
Farmer v. Darling, 4 Burr. 1791, one of the earliest
reported cases, if not the earliest, Lord Mansfield instructed the
jury that "the foundation of the action was malice," and all the
judges concurred that "malice, either express or implied, and the
want of probable cause, must both concur." From 1766 to the present
day, such has been constantly held to be the law, both in England
and this country.
See a multitude of cases collected in
vol. 8, U.S. Digest, first series, 942, pt. 95. And the existence
of malice is always a question exclusively for the jury. It must be
found by them or the action cannot be sustained. Hence it must
always be submitted to them to find whether it existed. The court
has no right to find it, nor to instruct the jury that they may
return a verdict for the plaintiff without it. Even the inference
of malice from the want of probable cause is one which the jury
alone can draw.
Wheeler v.
Nesbit, 24 How. 545;
Newell v. Downs, 8
Blackf. (Ind.) 523;
Johnson v. Chambers, 10 Ired. (N.C.)
L. 287;
Voorhees v. Leonard, 1 N.Y.Sup.Ct. 148;
Schofield v. Ferrers, 47 Pa.St. 194. In
Mitchell v.
Jenkins, 5 Barn. & Adol. 588, Lord Denman said:
"I have always understood the question of reasonable or probable
cause on the facts found to be a question for the opinion of the
court, and malice to be altogether a question for the jury."
He added that inasmuch as in that case the question of malice
had been wholly withdrawn from the jury, there ought to be a new
trial. In the case we have in hand, the question was withheld from
the jury, and nothing was submitted to them but an estimate of
damages.
There was also error in the charge in so far as it took away
from the defendants the protection of probable cause for their
instituting the proceedings in bankruptcy. The court ruled that the
defense could not be sustained by proving they had probable cause
for believing the plaintiff had committed an act of bankruptcy,
because, after the proceedings had been commenced, it was
established by a verdict and a judgment thereon that the plaintiff
was not indebted to them, and consequently that they had no right
to institute bankruptcy proceedings against him. It was further
charged that
"if they had no
Page 98 U. S. 194
legal claim or demand against the plaintiff, then whether they
had probable cause or not, they had no right to institute the
proceedings. They cannot go back and allege that though they had
not a legal claim or debt against him, they thought they had, or
that they had probable cause to believe they had such a demand.
Unless they had a debt, they cannot allege probable cause for
proceeding in bankruptcy at all."
To this we cannot assent. The existence of a want of probable
cause is, as we have seen, essential to every suit for a malicious
prosecution. Both that and malice must concur. Malice, it is
admitted, may be inferred by the jury from want of probable cause,
but the want of that cannot be inferred from any degree of even
express malice.
Sutton v. Johnstone, 1 T.R. 493;
Murray v. Long, 1 Wend. (N.Y.) 140;
Wood v. Weir &
Sayre, 5 B.Mon. (Ky.) 544. It is true that what amounts to
probable cause is a question of law in a very important sense. In
the celebrated case of
Sutton v. Johnstone, the rule was
thus laid down:
"The question of probable cause is a mixed question of law and
of fact. Whether the circumstances alleged to show it probable are
true, and existed, is a matter of fact, but whether, supposing them
to be true, they amount to a probable cause is a question of
law."
This is the doctrine generally adopted.
McCormick v.
Sisson, 7 Cow. (N.Y.) 715;
Besson v. Southard, 10
N.Y. 236.
It is therefore generally the duty of the court, when evidence
has been given to prove or disprove the existence of probable
cause, to submit to the jury its credibility, and what facts it
proves, with instructions that the facts found amount to proof of
probable cause or that they do not.
Taylor v. Willans, 2
Barn. & Adol. 845. There may be, and there doubtless are, some
seeming exceptions to this rule growing out of the nature of the
evidence, as when the question of the defendants' belief of the
facts relied upon to prove want of probable cause is involved. What
their belief was is always a question for the jury.
The circuit court thought in the present case, and so charged,
that the fact after the institution of the bankruptcy proceedings a
judgment was given in the Barbour Circuit Court against the
defendants, thus determining that the
Page 98 U. S. 195
plaintiff was not indebted to them, precluded them from setting
up that they had probable cause for their action. That was giving
undue effect to the judgment. The conduct of the defendants is to
be weighed in view of what appeared to them when they filed their
petition in the bankrupt court -- not in the light of subsequently
appearing facts. Had they reasonable cause for their action when
they took it? Not what the actual fact was, but what they had
reason to believe it was.
Faris v. Starke, 3 B.Mon. (Ky.)
4, 6;
Raulston v. Jackson, 1 Sneed (Tenn.) 128.
In every case of an action for a malicious prosecution or suit,
it must be averred and proved that the proceeding instituted
against the plaintiff has failed, but its failure has never been
held to be evidence of either malice or want of probable cause for
its institution, much less that it is conclusive of those things.
Cloon v. Gerry, 13 Gray (Mass.) 201; 1 Hilliard, Torts,
and cases there collected. The final judgment in the Circuit Court
of Barbour County did not, therefore, justify the court in charging
either that there was no probable cause for the bankruptcy
proceedings or that the presence or absence of such cause was
immaterial. If when they filed their petition to have the plaintiff
declared a bankrupt, the defendants believed, and had reasonable
cause to believe, that the plaintiff was indebted to them for the
goods sold to E. Leipzeiger & Co. in 1867, and had reasonable
cause to believe that he had committed an act of bankruptcy, there
was probable cause for their action, and the plaintiff was not
entitled to recover. That they had reasonable cause to believe an
act of bankruptcy had been committed must be conceded in view of
the manner in which the judgment of Jonas Sonneborn against him had
been obtained on the 12th of June, 1873, and in view of the
decision of this court in
Buchanan v.
Smith, 16 Wall. 277. If, therefore, they had an
honest and reasonable conviction that the plaintiff was their
debtor, that he was liable to them for the bills of goods sold by
them in 1867 to E. Leipzeiger & Co., they had probable cause
for instituting the proceedings in bankruptcy, and their defense
was complete. The jury should have been so instructed.
We think also there was error in refusing to charge the
Page 98 U. S. 196
jury as requested in the defendants' first point, which was as
follows:
"If the jury believe from all the evidence that A. T. Stewart
& Co. acted on the advice of counsel in prosecuting their claim
against Sonneborn in the Circuit Court of Barbour County, and upon
such advice had an honest belief in the validity of their debt, and
their right to recover in said action; and in the institution of
the bankruptcy proceedings acted likewise on the advice of counsel,
and under an honest belief that they were taking and using only
such remedies as the law provided for the collection of what they
believed to be a bona fide debt, they having first given a full
statement of the facts of the case to counsel -- then there was not
such malice in the wrongful use of legal process by them as will
entitle the plaintiff to recover in this form of action."
This the court refused to affirm, "except as contained and
qualified in the preceding charge." An examination of the charge,
however, reveals that the instruction was not contained in it nor
alluded to. The defendants, we think, had a right to have it
affirmed as presented. There was enough in the evidence to justify
its presentation. It was proved that before they commenced their
suit in the Circuit Court of Barbour County, the defendants were
advised by an eminent lawyer of Alabama, of twenty-five years'
standing in the profession, respecting their legal right to recover
the debt from the plaintiff that, in his opinion, the plaintiff was
liable therefor. It was further testified that the same lawyer
advised them that in his opinion, the plaintiff had rendered
himself liable to involuntary bankruptcy proceedings by suffering
his brother's judgment to go against him by default and by
advertising his entire stock of goods at and below New York cost.
It was not until after this advice had been given that the petition
in bankruptcy was prepared and filed.
That the facts stated in the point proposed, if believed by the
jury, were a perfect defense to the action; that they constituted
in law a probable cause, and being such, that malice alone, if
there was such, was insufficient to entitle the plaintiff to
recover -- is, in view of the decisions, beyond doubt.
Snow v.
Allen, 1 Stark. 502;
Ravenga v. Mackintosh, 2 Barn.
& Cress. 693;
Walter v. Sample, 25 Pa.St. 275;
Cooper v. Utterbach, 37 Md. 282;
Olmstead v.
Partridge, 16 Gray (Mass.) 381.
Page 98 U. S. 197
These cases, and many others that might be cited, show that if
the defendants in such a case as this acted
bona fide upon
legal advice, their defense is perfect.
The remaining exceptions to the charge require but brief notice.
They relate to the assessment of damages, under the positive
instruction to find for the plaintiff. Of these but a single one
need be noticed. The court was asked to charge that the jury, if
they found for the plaintiff, could not, in estimating the damages,
consider the fees of counsel in prosecuting the case. The
instruction was not given. It was refused, and erroneously, as we
think. The fees of counsel in prosecuting this case were no part of
the consequences naturally resulting from the action of the
defendants in suing out the decree and warrant in bankruptcy. They
were not what the defendants ought to have foreseen. That such fees
are not recoverable, and why they are not, was clearly shown in
Good v. Mylin, 8 Pa.St. 51;
vide also Alexander v.
Herr, 11
id. 537;
Stopp v. Smith, 71
id. 285;
Hicks v. Foster, 13 Barb. (N.Y.) 424.
The rule asserted in these cases we think is correct, and it should
have been given to the jury in the present case. The defendants
were the more injured by the refusal to give it, because evidence
was given of the cost of prosecuting the suit calculated immensely
to influence the damages -- evidence which should not have been
offered or received.
The other exceptions to the charge require no notice.
The judgment of the Circuit Court will be reversed, and the case
remanded with instructions to award a
venire de novo, and
it is
So ordered.
MR. JUSTICE BRADLEY dissenting.
I am obliged to dissent from the judgment of the Court in this
case. It hardly needs any reference to authorities to establish the
familiar doctrines laid down in the opinion. As applied to ordinary
cases of actions for malicious prosecution and arrest, they are
elementary law. It cannot be gravely supposed that when the court
below instructed the jury that the question of malice and probable
cause was not before them except on the question of vindictive
damages, it
Page 98 U. S. 198
meant to ignore or to dispute the law as laid down by the
court.
The question, as viewed by the court below, was not as to what
is incumbent on the plaintiff to prove in an ordinary action for
malicious prosecution, but whether the defendant in this particular
case stood in the category that entitled him to require such
proof.
No one doubts that in an ordinary action of this kind, malice
must be proved, and that probable cause for the prosecution is a
defense. The sole question was whether this was such an ordinary
action or not, and this question has not been met by the counsel at
the bar, and I do not think it is met in the opinion of the
Court.
What are the grounds and reasons for the stringent rules imposed
upon a plaintiff in an action for malicious prosecution? Why is he
obliged to prove actual malice, and why is it that the defendant
may justify by probable cause? The reason undoubtedly is that every
man in the community, if he has probable cause for prosecuting
another, has a perfect right by law to institute such prosecution,
subject only, in the case of private prosecutions, to the penalty
of paying the costs if he fails in his suit. If this were not so,
it would deter men from approaching the courts of justice for
relief. Prosecutions may fail from many causes independent of the
justice of the case, and it would be very hard to visit a man with
heavy damages for making a complaint or bringing a suit when he had
probable cause for it. Hence the law gives to every man a right to
complain of or sue another if he has probable cause to believe he
has ground for such complaint or suit. For the exercise of this
right he cannot be made accountable in damages except so far as the
law, for the discouragement of private suits, imposes upon him the
costs of the litigation. In the case of criminal charges, this
right of making complaint is given to every man, for all are
interested in the preservation of public order. It is not necessary
that the complainant or prosecutor should show any private interest
in himself. But in the case of a civil suit, the prosecutor must
base his demand upon some claim due, or supposed to be due, to
himself. Without any claim or pretense of claim, a suit brought in
his own name, or
Page 98 U. S. 199
in the name of another, would be of itself unlawful, malicious,
and without probable cause.
In short, upon probable cause, every man has a right to bring a
charge against another for a public offence, and every man
supposing himself to be wronged by another may bring suit for the
redress of that wrong. The law gives this right and protects it in
an action brought for malicious prosecution or malicious
arrest.
But suppose that, in any class of cases, the law did not give
this right; could the party then stand, for his defense, upon the
question of malice and probable cause? Most assuredly not. He could
not bring himself within the proper category. He would then be
liable at all events for the actual damage caused by an unjust
prosecution, just as much so as the man who should assault and
wound another or take and carry away his goods. And if an action
should be brought against him for such unjust prosecution, a charge
of malice, or want of probable cause, introduced in the
declaration, would at most be regarded as surplusage, or the
prosecution would,
per se, be regarded as malicious. The
allegation of malice would no more prejudice the right of recovery
than did similar allegations of fraud and intent to deceive and
injure in the old action of assumpsit. If a man does not bring
himself within the category of right to sue given by the law, then
it is clear that he cannot avail himself of the indulgence allowed
by the law of showing probable cause for the suit.
That was precisely the question in this case. The court below
did not pretend to say that if Stewart & Co. had a right to
institute proceedings in bankruptcy against Sonneborn, they could
not, if unsuccessful, have availed themselves of all the defenses
applicable in ordinary cases of actions for malicious prosecution.
But, whether right or wrong in its views, it held that Stewart
& Co. did not come within the category of persons having such
right. It held that the bankrupt law gave such right to creditors
only -- not to those who only believed themselves to be creditors,
but were not such. It held that the fact of their being creditors
was a condition precedent to their right to institute bankrupt
proceedings. The words of the law as found in sec. 39 of the
Bankrupt Act are that a person
Page 98 U. S. 200
owing debts, and doing certain things enumerated in the
section,
"shall be deemed to have committed an act of bankruptcy, and
subject to the conditions hereinafter prescribed, shall be adjudged
a bankrupt, on the petition of one or more of his creditors, the
aggregate of whose debts provable under this act amount to at least
$250."
In construing this section, the court held that whilst the law
did not require that a man should establish his debt by a judgment
before instituting proceedings in bankruptcy, it nevertheless
required that he should be in fact a creditor and that, if his debt
was disputed by the debtor, the responsibility was on him (the
creditor) to establish it. If this were not so, then a man
prosecuting an old disputed claim against another which the latter
had always repudiated and which was still contested in the courts,
could effectually ruin his antagonist by simply swearing to his
claim and throwing him into bankruptcy, and the latter, though
finally successful in demonstrating to the courts the invalidity of
the claim, would be without any redress except the petty
satisfaction of recovering the costs of the suit. The court below
held that this was not the law, and that a man who assumes the
responsibility of throwing another into bankruptcy and drawing down
upon him all the consequences of breaking up his business and
ruining his prospects for life must be prepared to show that at
least he is in fact a creditor of his victim, and therefore in the
category of those who have a right to institute such
proceedings.
In the present case, Stewart & Co. claimed to be creditors
of Sonneborn; but the claim was disputed and in litigation when the
proceedings in bankruptcy were commenced. It seems to me that the
court was right in holding that the issue of the litigation of the
claim was at Stewart & Co.'s risk, so far as the question of
their right to institute proceedings in bankruptcy was concerned,
and that if they failed to establish their claim against him, they
could not excuse themselves for the outrageous wrong of breaking up
his business and blighting his life by showing that they had
probable cause to believe that their claim was valid.
This position does not in the least disaffirm the right of a
creditor -- one who is really such -- to plead, or show,
probable
Page 98 U. S. 201
cause for instituting bankruptcy proceedings against his debtor,
where those proceedings are dismissed for want of sufficient
ground, or for any other cause. A creditor has the right, by the
law, to institute such proceedings upon probable cause. But, in my
judgment, one who is not a creditor in fact has no such right. The
law does not give him any such right.
The power to throw a man into bankruptcy and thus destroy his
business, and all hope for the future, is one of great magnitude to
be given to one man over another. A wealthy man or firm, with
extensive business connections, having this means of destruction in
his hands, wields a tremendous power. The indiscriminate exercise
of the power by many heavy capitalists throughout the country as a
means of collecting their debts or holding it
in terrorem
over their debtors for that purpose, was one of the causes which
made the late law odious to the community and produced its repeal.
In my judgment, the construction given to it by the court below on
the point in question was a wise and proper one, calculated to
prevent or at least to moderate that reckless resort to the law
which made it so odious and tyrannical in its effects. It did not
trench upon any of the acknowledge principles of the law of
malicious prosecution; it distinguished the case from those which
came under that head of law, and simply held that one who is not in
fact a creditor cannot lawfully institute proceedings in
bankruptcy, and if he does so to the prejudice of the alleged
bankrupt, he is responsible for the damages caused to him
thereby.
In the rightful prosecution of their alleged claim, whatever
injury they may have caused to Sonneborn, Stewart & Co. could
well have pleaded probable cause of believing their claim to be
just, and Sonneborn could not have recovered damages without
showing malice as well as want of probable cause. But in
instituting proceedings in bankruptcy, they must at least be in
fact creditors, as a condition precedent of their right to do so.
If they had been in fact creditors, then they would have been
entitled to all the privileges awarded to a defendant in an
ordinary action for malicious prosecution, whatever the result of
the proceedings might have been.
Page 98 U. S. 202
Putting the matter into a summary form, the result of my views
is briefly this:
1st, that in criminal matters every person, being interested in
the public order, has a right by law, upon probable cause, to make
complaint against a supposed offender.
2d, that any person believing himself to have a claim against
another, having probable cause for such belief, has a right by law
to sue therefor, subject only, if his claim be adjudged false, to
pay the costs of suit.
3d, that any creditor of another may institute proceedings in
bankruptcy against his debtor if he have probable cause to believe
that his debtor has committed an act of bankruptcy, but a condition
precedent to such right is that he be in fact a creditor.
Counsel, on argument, and it seems to me the court in its
opinion, take for granted in this case the contrary of the last
proposition without considering the question itself. Assuming that
a petitioning creditor is not under any condition precedent to be
in fact a creditor, then I would agree to all that is laid down in
the opinion. But that is the very question, and the only important
question, in the case.
The exception in regard to allowing counsel fees in the suit by
way of damages was not founded in truth. The court below expressly
confined the jury to three specific grounds of damage, and this was
not one of them. Hence, the request to charge on the subject was
not relevant and the court did no wrong to the defendants in
refusing to so charge.
I think the judgment should be affirmed.