LAW REPORT.

Evening Star, Issue 3281, 26 August 1873, Page 2

LAW REPORT.

SUPREME COURT.- IN BANCO.

Monday, August 25.’ (Before his Honor Mr Justice Chapman.)

M'Comb v. Low.— -Malicious prosecution — Reasonable and probable cause —Defendant acting on information received—Defendant’s knowledge Contradictory evidence Actions for personal torts, excessive daracages in, Rule as to. . . Where a person, in setting the law in motion against another, acts upon information which lie believes, if the facts communicated, coupled with other circumstances, arc so complete and sufficient as to disclose a prima fa-r-ic presumption that that other lias committed the offence with which he is charged, that is reasonable and probable cause sufficient to justify the former in setting the law in motion, provided he is at the time he institutes proceedings ignorant of the existence of other circumstances which would explain the facts previously communicated. Where, therefore, the defendant, who had purchased from the plaintiff, a slaughterman, certain sheep branded 0, and was aware at the time that the plaintiff was a slaughterman, and possessed other sheep similarly branded, having received information that certain sheep, branded 0, had been slaughtered on the plaintiff’s premises, obtained a search warrant against the plaintiff, und subsequently instituted proceedings against him for sheep-stealing, and there was no evidence that the defendant had missed any of his own sheep : Held, there was a want of reasonable and probable cause, and the defendant was liable. The law, however, does not, under such circumstances, cast upon the defendant the duty of inquiry, so ns to raise any presumption against him from neglect to inquire. Where the plaintiff asserts and the defendant denies that a certain state of things exists, and no evidence is brought, to supportorcontradict the assertion, the Court will not dictate to the jury which party they are to credit in preference to the other. In actions for personal torts, the jury, although their power is not despotic, have great latitude on tho question of damages ; and the Court will not interfere to disturb a vordict on the ground of excessive damages, unless the damages given arc outrageous, or flagrantly excessive, and out of all proportion to tho positions of the parties and the circumstance} of the case. Per Chapman, J. : The question of reasonable and probable cause ought properly to be left entirely to the jury, subject to such directions as each particular case may demand; but the practice is too well settled to admit any change short of legislative enactment. This was an action for malicious prosecution. The case, the facts of which arc stated in the judgment, was tried on the 21th January, and a verdict was returned for the plaintiff. A rule nisi having been obtained for a nonsuit, or failing that, for a new trial on the respective grounds mentioned in the judgment, Mr James Smith (with him Mr Wilson) on May 9th showed cause ; Mr Barton (with him Mr B, C. Haggitt) supported the rule. Yesterday, his Honor delivered judgment as follows Rule nisi for leave to enter a nonsuit, on the ground that there was no evidence of want of reasonable and probable cause, or, failing that, for a new trial on the several grounds of—l, misdirection; 2, excessive damages; and, 3, that the verdict was against the weight of evidence. And, first, as to the nonsuit points The action was for malicious prosecution. The plaintiff had purchased a considerable number of sheep—about 700—from a Mr Glass ford, which were marked 0. The plaintiff was a slaughterman, and had a slaughter-yard in the vicinity of the defendant’s run, where he was in tho habit of slaughtering sheep in the way of his business. Some of the pi'intiffs sheep, marked 0, had strayed on to the defendant’s run, and upon disputes touching these sheep, it was agreed that Low should purchase them at 2s each. The number was not then ascertained, but they were assumed not to exceed 200. Subsequently, when they were mustered, more than 200 were found. Low paid .for the 200, and M'Comb got backninety-sovcn sheep, being the excess. In the meantime M'Comb went on slaughtering sheep branded 0, and upon information that skins marked 0 had been seen at M‘Comb’s slaughter-yard, the defendant obtained a search warrant, and upon search, some skins so marked being found, M'Comb was arrested, and Low proceeded against him before the Magistrate at Clyde for sheep stealing, but the case was dismissed. Now, if the skins found had been marked with Low’s own station brand, I should have considered that circumstance as constituting some reasonable and probable cause, though no sheep had been missed, and I should have directed a non-suit ; but as they were not so marked, other inquiry became necessary. M'Comb described what took place between himself and Low when the trespassing sheep were sold to. the latter, M'Coinb commenced by saying “Borne of my sheep have strayed upon your run.” This conveys a slight intimation that there were some others in existence. After the discussion about the sale and price had taken place, Low asked M'Comb whether _ all his sheep had got away, and M‘Comb_ replied that they had not. On cross-examination, M‘Comb said that he had never told Low that the sheep which had strayed were “the balance”; but that lie did inform him that he had some running on the commonage. This is evidence that M'Comb had other sheep marked 0, and that Low was aware of it. It is no answer to say that the defendant gave evidence to the contrary. It is evidence of want of reasonable and probable cause, and there is, in my opinion, no ground for a nonsuit. Wyatt v. White, 29 Law J., Exch, 193, was mentioned in moving the rule, but was not relied upon in the arguments, and very properly so, for there the sack bore the defendant’s trade marks, and although he admitted that he lost many new sacks in the year, from the neglect of his customers to return them, there were found pieces of new sacks with his own trade mark, which did not admit of the same explanation, and with which lie had not voluntarily parted. This was held to constitute reasonable and jirohable cause for setting the law in motion. I proceed, therefore, to the second branch of the rule, and first, as to the alleged misdirection. What I told the jury was in substance this : that if the skins had been marked with Low’s own station mark, he not having sold any to M'Coinb, I should have considered it as constituting reasonable and probable cause, and should have directed a nonsuit ; but that a? the evidence stood I thought tho question of reasonable and probable cause turned on the fact of the existence of other sheep marked O, and whether the defendant was aware of it. I told the jury that if they came to the conclusion upon the whole of the evidence that the defendant was aware that M'Comb had other sheep marked O, they would be justified in concluding that there was a want of reasonable and probable cause. If, on the other hand, they found that the defendant was not aware that M‘C)omb had other sheep marked 0, and believed that he himself had all tho remaining sheep so marked, they might infer reasonable and probable cause, and find for the defendant; and 1 think I used the expression that Low’s knowledge, or want of knowledge, of the existence of other sheep marked O was “ the turning point of the case.” I further told the jury that a prudent man in such a case would have made some further inquiry before lie preferred such a charge ; or 1 may have put it, that ordinary prudence should have induced Mr Low to make some further inquiry before he made such a charge. But I did not put to the jury that want of such inquiry constituted want of reasonable and probable cause, or even that it was an element therein, but that it was a precaution which the defendant should have adopted for his own security. And I think so still. Tin’s part of my charge to the jury is seized upon as a misdirection, and two cases have been cited to show as a general or universal proposition that want of inquiry is not an element in the question of reasonable and pro- j bable cause. I think I shall show that the learned counsel for the defendant has missed a very patent distinction in the cases- which he has cited, and that they have really no bearing on my directions to the jury. In Perryman v. Lister, Law Rep. 4, Eng. and J. Appeals, p. 521, the defendant had lost a rifle, which had been stolen from his house. His own servant had informed him that he had been informed by a neighbor’s coachman that the latter had seen the rifle (which he knew) in the plaintiff’s possession. It was held that, although this was hearsay evidence, the defendant, if he believed his servants, was not bound to inquire

farther. In that case, it will bo observed that the facts communicated, coupled with the loss of the rifle, were complete and sufficient. The information disclosed a prima facie presumption of felony. But that is a very different thing from information which, if accepted as true, is insufficient to justify a reasonaole conclusion that a felony had been committed. The judgment in Perryman v. Lister, in the House of Lords, turns upon this distinction. Lord Chelmsford intimates that this feature was overlooked by two of the Judges. “Neither of them,” his Lordship says, “appears to have considered whether the information conveyed to Mr Lister was not in itself sufficient to justify him in proceeding against the plaintiff, without making personal inquiry of Robinson. * * * In my opinion the facts brought to

the knowledge of the defendant by his coachman, and which the jury found that he believed, were quite sufficient to justify his proceeding against the plaintiff.” There was no such completeness in the information imparted to the defendant in this case. All that he learned was that M'Comb had slaughtered some sheep marked 0, and that skins with that mark had been seen on M'Comb’g premises. There is no evidence that he was aware that M'Comb had such sheep; and hj« knew that slaughtering was M'Comb’s business, conducted, not in an unusual place, but at his own slaughter-yard. In this there does not appear to have been any concealment. Moreover, there is no evidence to show that the defendant had missed any sheep. Ido not say that, under such circumstances, the law casts on a defendant the duty of inquiry, so as to raise any presumption against him from the neglect to inquire ; but I do say that, if he bo so precipitate as to set the law in motion without such inquiry, he must abide by the consequences. There is a similar distinction in the other case relied on—Chatfield v. Cornsford, 4 Fos. and Fin., 1,003. The information received by the defendant was as complete as in Perryman v. Lister. That is if accepted as true by the jury ,it contained all the elements of the offence charged. Cockburn, C.J., told the jury that if the defendant believed the information which he had received, there was reasonable and probable cause. He could not have told th;m that, if the .information had not disclosed the offence imputed to the plaintiff. Having already pointed out in what respect the information received by the defendant in this case fell short of completeness, I have only to add that I am of opinion that the ease was properly submitted to the jury, and that there was no misdirection. Before I leave this part of the subject, I feel tempted to add a few words on ths mode ef putting the question—or, perhaps, I should say half the question—of reasonable and probable cause to the jury. I have long been of opinion, generated by a long experience in such cases both at the bar and on the bench, that the mixed question of law and fact should be left to the jury-subject, of course, to such directions as each particular case may demand. It has long been so in actions for libel; why should it not be so in actions for malicious prosecution ? But since the determination of Panton v. Williams, 2, Add, and Ell. 160, the present practice has been too well settled to admit of any change short of legislative enactment. The rule had been laid down curlier in Johnston v. Sutton, 1 T.R. 545. I know that many lawyers and some judges are of the same opinion, but I believe it has never been so emphatically expressed as I find it in the ease of Peiryman v. Lister. Lord Chelmsford, Lord Westbury, and Lord Colonsay, all «unsidored that it is/lesirable that reasonable and probable cause should be an inference of fact to bo determined by the jury rather than by the Judge. Lord Westbury said “ I regret to rind the law to be that it is an inference to be drawn by the Judge and not by the jury.” Lord Colonsay said—“ I have frequently had to deal with cases of this kind at the other end of the island (Scotland), but there this question of reasonable and probable cause is treated as an inference of fact to be determined by the jury from the whole circumstances of the case, in like manner ns the question of malice is left to the jury. If I had tried this case I should have left this matter to the jury.” After this emphatic condemnation of the present mode of putting ths facts to the jury, and leaving the inference of law to the Judge, it is not unlikely that it may become the subject of legislative enactment, at no very distant period. As to the question whether the verdict was against the weight of evidence, I am of opinion th*t it was not so to ah extent to justify the Court in disturbing the verdict. As to that which I have designated the turning point of the case, namely, the defendant’s knowledge of the existence of other sheep in M ‘Comb’s possession marked O, there was no doubt conflicting evidence. But whose function was it to decide upon that? Obviously that of the jury; and there was quite enough to support the conclusion at which they arrived. It is true that the plaintiff and defendant contradicted each other, but that is a contingency which juries frequently have to encounter. No third person was present when the conversation of the 9th August about tho sale of the trespassing sheep took place, and I could not say that the verdict is against the weight of evidence without at the same time saying, or at least implying, that the jury ought to have disbelieved M'Comb and believed Low. This I have no authority to do. I now approach the question of the alleged excessive damages, which I fear X must trant at some length. The subject of large damages, as a ground for disturbing the verdict in actions for personal torts, has not been so prominently before this Court on any former occasion, and I think that a review of some of the most remarkable cases on that head may well be excused, though it will necessarily somewhat lengthen my judgment. A distinction has frequently been laid down between actiops upon contracts and torts. In the former it is said there is always a standard or measure of damages to which the jury is confined. The pecuniary damage is a matter of computation, and if there be miscomputation or erroneous estimate, the Courts will interfere in cases of excessive damages; wliereas in torts the jury, though not despotic, has a greater latitude, But this distinction is not exhaustive. There are some actions, which, although properly called torts, are founded on claims for damages capable of pecuniary estimate. Actions in the case against carriers, for instance, for loss of goods. The value of the goods lost is the measure of damages just as much as if the action were framed, not on the general breach of duty to carry safely, but on the implied contract to carry safely. On the other hand, an action for breach of promise to marry is founded on a contract expressed or implied, and yet the injury so far partakes of the nature of a personal injury as to let in that latitude or discretion which belongs to tho jury in cases of personal injury. In actions of trespass against property, there is often little to be considered beyond the amount of the injury ; but if there be any other element, such as vexation or annoyance, the Courts will not very nicely weigh the decision of the jury. Thu* in Williams v. Carrie, 1, C.8., 841, the Court refused to set aside a verdict for L3OO for damaging crops, although it was in evidence that the whole value did not exceed L2OO. But in Pleydall v. Lord Dorchester, 7, T.R., 529, which was an action for diverting a water course, in which the jury had given L 3.000 damages, the Court granted a new trial on the ground that, although there were some circumstances of aggravation, the damages greatly exceeded the utmost amount of injury proved. But in all personal torts the case is otherwise. There is no computable measure of damage, and _ accordingly we find the Courts reluctant to interfere, even when they think the damages much too large ; and in one case, to which I shall presently have occasion to refer, the difference of opinion between the jury and the judge who heard the cause was between LSOO and one shilling. The Courts, even in refusing or discharging rules, never let slip the opportunity of asserting their jurisdiction, and yet it la not a little remarkable that the cases which are usually cited as authority for the proposition that “ a new trial may be granted for excessive damages,” are cases in which the rule has been discharged. In all personal torts the rule is best expressed negatively—that the Courts never interfere with the verdict unless the damages are outrageously excessive. [Owing to its length, we are obliged to hold over the remainder of the judgment,!