The opinion of the Court was delivered by
Gibson, C. J.The Judge put the question of probable cause upon the fact of what the plaintiff had actually sworn before the inquest, and not on the fact of what he was supposed to have sworn. It was a matter of much doubt at the trial of the present cause, whether he had said that the alleged lunatic had been called as a witness in Schoch v. Seibert by the defendant, or not; insomuch, that the witnesses who swore positively about it were divided, even insomuch, that a majority were in favour of the affirmative. In this conflict of perception, then, suppose that the prosecutor had acted on a mistaken belief that the plaintiff had sworn what would undoubtedly have been a perjury, would he not have acted on what appeared to have been justifiable cause; and if he did so act, would it not repel the implication of malice ? Again, if the same misapprehension was entertained by the bystanders, would it not materially increase, in an indifferent mind, the probability of the witness’s guilt ? What is justifiable probable cause, in the technical sense ? It is a deceptive appearance of guilt arising from facts and circumstances misapprehended or misunderstood so far as to produce belief; and when the subject of belief is the crime of perjury, the misapprehension may have regard to the extent of the swearing, as well as the truth of it. The question of probable cause, may as well depend on the one as on the other, the difference being, that a misapprehension or doubt *440is more likely to occur in regard to the former than the latter. Still, the tenor of the testimony, resting as it does in the understanding and memory of the hearers, who may have misapprehended or forgotten it, may not be accurately perceived by the prosecutor; for the uncertainty of human perception is well known to those who are familiar with the examination of facts depending on oral proof. No two eye-witnesses ever yet exactly agreed in their account of a transaction; and nothing is more frequent than the misapprehension of a person’s words. A by-stander relying on his own ears, may be grossly mistaken; and when the matter has regard to the sum of a witness’s testimony instead of the truth of it, there may be such a mistake as to produce an appearance of perjury sufficient to justify a prosecution of it. If, then, there was a reasonable belief in the minds of the prosecutor and the by-standers that the plaintiff swore to what it is admitted would have been an untruth, whether the belief was well founded or not, there was probable cause amounting to justification.
The exception to the sending out of the prosecutor’s affidavit before the magistrate, is not sustained. That document was not a deposition, but an indispensable part of the case put in evidence by the plaintiff himself; and, as such, it does not fall within the rule which excludes a deposition from the jury-room.
Judgment reversed, and a venire de novo awarded.