The refusal to direct a verdict for the defendants was proper. No question of the sufficiency of the plaintiff's declaration being raised, it was only essential to the maintenance of his action that he should satisfy the jury that the proceedings against him instituted by the defendants were malicious and with* out probable cause. The existence of malice is always exclusively question for the jury, and so is the question of probable cause so as it is dependent upon the credibility of the evidence which has been given to prove or disprove its existence. Hence, although in an action for malicious prosecution it is a complete defence that the defendant acted in good faith and upon the advice of counsel learned in the law, after fully and fairly laying the case before him, the court has no right, and will not undertake, to pass upon the credibility of the evidence, with all the inferences which jury could justifiably draw from it, in respect of these requirements.
The exception to Spaulding's testimony requires no examination. It was manifestly competent; and so was the testimony of the witness, that soon after the defendants became non suit Leon *Page 564 Saidel told him he had made it cost the plaintiff quite a sum, and he was satisfied and didn't want to carry the cases into court and risk having to pay the costs.
The defendants' exception (Int. 4, Davis' deposition) to all talk of Clark, when the defendants were not present, about joining suits against the plaintiff and driving him out of business, is not sustainable. The real trouble, if any, with the evidence was not that the part of Clark's talk which was excepted to was made in the defendants' absence, but that the fact of a conspiracy may not have been sufficiently established when the evidence was received. "When the fact of a conspiracy has been proved, or established by reasonable inference, the acts and declarations of one conspirator in furtherance of, or made with reference to, the common design, are admissible in evidence against his associates." 6 Am. Eng. Enc. Law (2d ed.) 866, and numerous cases there cited; 11 Ib. 514; Page v. Parker, 43 N.H. 363, 367. Whether such proof had or had not then been given does not definitely appear; but if it had not, and even if the objection had been put on that ground, the evidence was properly received, because the requisite proof might be furnished at a subsequent stage of the trial. 1 Gr. Ev., s. 111.
The defendants' exceptions to interrogatories 6, 7, 8, 10, and 46 are overruled, and also their exception to the rejection of their offer to prove that the plaintiff had brought a claim of one Foster for twenty dollars against the defendants, and brought suit and made attachment in said suit. Their exception to the ruling of the court permitting the plaintiff to send to the jury room the deposition of Leon Saidel in the suits complained of was properly not insisted. upon at the argument, and requires no further notice; nor does that to the denial of their motion to direct a verdict for Isaac Saidel.
The plaintiff's exception to the testimony as to what Clark told the defendants in his absence, with reference to the plaintiff cheating and defrauding them in the copartnership business and in his purchase of their interest therein, is very clearly unfounded. Eastman v. Keasor,44 N.H. 518, 520; Carter v. Beals, 44 N.H. 408; Dinsman v. Wilkes, 12 How. 390; 2 Gr. Ev., s. 454. "When the motive of a party in doing an act is in question, it is competent to show that he was induced to do the act by what he learned from third parties." Carter v. Beals, supra.
The defendants' request that the jury be instructed that "the mere failure of the prosecution, that is, the suits brought by these defendants against this plaintiff, does not establish a want of probable cause," should have been granted. The failure of those suits, though necessary to be proved, was "but a short step *Page 565 toward the maintenance of an action for malicious prosecution." Shaw, C.J., in Cloon v. Gerry, 13 Gray 201. "In every case of an action for a malicious prosecution or suit, it must be averted 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; much less that it is conclusive of, those things." Strong, J., in Stewart v. Sonneborn, 98 U.S. 187, 195. In determining the question of probable cause, — the most vital point in the case, — it is manifest that the jury would be very likely to give great weight to the failure of the defendants' suits against the plaintiff, and therefore that the defendants were entitled to and should have received the benefit of the instruction requested; not only, was this denied them, but the jury were left wholly uninstructed on this point and free to draw such inferences as to them might seem proper, and which could not well be otherwise than highly prejudicial to the defendants.
The defendants further requested the court to instruct the jury (inter alia) that "to maintain the present actions, the plaintiff must satisfy the jury by a preponderance of evidence of the existence of the essential elements of his case, viz.: (1) that the defendants acted maliciously in bringing the suits against the plaintiff; (2) that the defendants acted, in bringing the suits against the plaintiff, without probable cause. The question of probable cause does not depend upon whether the plaintiff was guilty of the offence charged in the defendants' writs, but depends wholly upon the defendants' honest belief of the plaintiff's guilt, based upon reasonable ground. The defendants were at liberty to act upon the appearances; and if the apparent facts were such that a discreet and prudent person would be led to the belief that the plaintiff had done the acts complained of, the defendants are not liable in this action, and your verdict will be for the defendants, although upon the whole evidence you may believe that the plaintiff did not do the acts complained of, and that the defendants were mistaken in their belief that he did." The court did not give the particular instructions requested by the defendants, and the defendants excepted.
Their exception must be sustained. It is familiar law, so sanctioned by authority as not to be questioned, that, in an action for malicious prosecution, malice, either express or implied, and the want of probable cause must both concur; and that while malice may be inferred by the jury from want of probable cause, the want of such cause cannot be inferred from any degree of even express malice. But the court, on the contrary, explicitly charged the jury that, if they found the defendants' suits were malicious, that alone was sufficient to maintain the plaintiff's action — the *Page 566 exact language being: "If they brought the suits maliciously intending to oppress and injure this man, then they must be liable." And again: "Now the plaintiff has introduced his own testimony, the deposition of Davis, the record evidence, and the full record of all their business. That is the evidence that the plaintiff puts in and relies upon to show that the Saidels had malice in their hearts toward him, and that on account of such malice they brought their suits, maliciously intending to injure him." And still again: "The plaintiff says the defendants brought these suits maliciously, and says that the evidence shows it. You will say whether that is so or not; and you have got to weigh the evidence right in there pretty closely, because right in there is the test of this case." It is true that in other parts of the charge an approximately correct statement of the law may be found; but this cannot be held to cure the emphatic error in question, for it plainly tended rather to mystify and involve the case in intricacy, and mislead the jury, than to give them light. In short, the effect was to permit the jury to choose between a multiplicity of inconsistent and disconnected instructions, some wrong and some right, instead of placing the law fairly before them in a few plain, direct, and forcible instructions, which would aid them, in coming to an intelligent decision.
The defendants' general exception to the charge on the question of damages is overruled. Bixby v. Dunlap, 56 N.H. 456, 464; Kimball v. Holmes,60 N.H. 163, 164; Friel v. Plumer, 69 N.H. 498, 500, 501. H there was malice on the part of the defendants and the plaintiff suffered mentally therefrom, he is entitled to compensation for such suffering; and this we take to be the fair and reasonable construction of the charge as reported.
Verdict set aside.
All concurred.
Upon the filing of the foregoing opinion both parties moved for a rehearing upon the points discussed in the subsequent opinion.