[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 627 This is an action for malicious prosecution, and its essential elements are the want of probable cause and malice. (Vanduzor v. Linderman, 10 Johns. 106.) These it belongs to the plaintiff affirmatively to prove, or to introduce evidence in regard to them from which they may be legitimately inferred. (McCormick v. Sisson, 7 Cow. 715; Murray v. Long, 1 Wend. 140;Bulkley v. Smith, 2 Duer, 261; Van Latham v. Rowan, 17 Abb. *Page 628 Pr. Rep. 238, 248.) Whatever the plaintiff may prove, the defendant is at liberty to disprove. He is, therefore, at liberty to show both the absence of malice and the existence of probable cause, and no evidence pertinent to either issue should be excluded. The defendant was sworn on the trial, and was asked whether he believed the evidence given by the plaintiff (on which the defendant attempted a prosecution against him for perjury) was material, and whether he, the defendant, believed, at the time he made the complaint against the plaintiff for perjury, that the defendant was guilty of the charge made against him? Both of these questions were overruled, and, I think, erroneously. They tended directly to repel the imputation of malice, and perhaps, to some extent, the want of probable cause. If answered in the affirmative, and reliance was placed upon the testimony by the jury, they would tend very much to exculpate the defendant; or, at all events, to mitigate the damages. How much weight the jury would give to such testimony, coming from the mouth of the defendant himself, was a question exclusively for them. The testimony, I think, was competent, within the cases ofSeymour v. Williams (4 Kernan, 567); Griffin v. Marquardt (21 N.Y. Rep. 121), and Forbes v. Waller (25 N.Y. Rep. 430,439).
In the first of these cases it was held that on an issue of fact whether an assignment of property was made to defraud creditors, it was competent to inquire of the assignor, who was a witness, whether, in making the assignment, he intended to defraud creditors, and thus to repel the imputation of actual fraud.
In Griffin v. Marquart, testimony of the assignor that he made the assignment for the purpose of gaining time to pay his creditors and protect his indorsers, was held admissible for the purpose of establishing a fraudulent intent.
In Forbes v. Waller it was held proper to prove by the assignor his object and intent in making the assignment, and to prove by him that it was to prevent a sacrifice of his property. These cases go very far to establish the *Page 629 general principle that where the motive of a witness in performing a particular act or making a particular declaration becomes a material issue in a cause, or reflects important light upon such issue, he may himself be sworn in regard to it, notwithstanding the difficulty of furnishing contradictory evidence, and notwithstanding the diminished credit to which his testimony may be entitled as coming from the mouth of an interested witness.
It is suggested that as the jury had before them the affidavit of the defendant when he made his complaint against the plaintiff for perjury, the defendant had thereby the benefit of all the evidence to establish probable cause and the absence of malice, which he could supply by his own oral testimony before the jury. But this is not so. For in the first place those conclusions could only be inferentially drawn from that affidavit, and in the next palce, the defendant had the right, when he was on the stand, to have the benefit of all the inferences which could be legitimately made in his favor before the jury from testifying to these facts in a direct and positive manner before them, aided by such impressions as would be made upon the jury by his appearance, manner, and mode of testifying.
As we are clearly of opinion that a material error to the prejudice of the defendant was committed on the trial, by the exclusion of this evidence, it is unnecessary to examine any of the other questions made in the case.
The judgment must be reversed and a new trial granted, with costs to abide the event.
DAVIES, J., read an opinion for affirmance. All the other judges being for reversal, judgment reversed. *Page 630