For the purpose of maintaining this action, the plaintiff was bound to show a want of probable cause. The evidence on this subject was: First. That the signatures of Ackerman, the indorser, upon the two notes which defendant held against the plaintiff were unlike each other, and unlike other signatures of Ackerman, and that upon discovering the difference in Ackerman's signature, the defendant immediately wrote to Ackerman, requesting him to call and see him, mailed the letter in time for him to receive it and come in the next morning and see the defendant. Second. That not hearing from Ackerman the next day, the defendant went to the bank where the indorser did his business, showed *Page 25 the indorsement to the cashier, who expressed an opinion that one of the signatures did not look like Ackerman's, and if he wrote it, he wrote with a different pen than that he had been in the habit of writing with, and that it was heavier than the other. Third. That the teller of the same bank, upon being shown this indorsement, said to the defendant, that if such a signature was on a check he would hesitate about paying it. Fourth. That the defendant then looked for Ackerman, and could not find him, and the cashier, at the request of the defendant, inquired of Ackerman, the indorser, how many notes he had indorsed for the plaintiff, and reported to the defendant that Ackerman said to him that he was on two — one for $300 and for $150 — while the plaintiff had two notes of $300 with Ackerman's apparent indorsement. Ackerman also said, at another time to the cashier, which was reported to the defendant, that he was indorser on only one $300 note. From these facts, it would appear that the defendant had strong reason to believe that the plaintiff had committed the crime of forgery. His suspicions had been aroused from the appearance of the signatures on the notes, and he then instituted inquiries from the proper and most direct sources, and found that the opinion he had entertained was sustained by those who were competent to form an accurate judgment, and by the statement and declaration of Ackerman himself made to the cashier as to the number of notes he had indorsed. If this information was correct, then most manifestly the defendant held one note of $300 which Ackerman had never indorsed; and, in connection with the other circumstances referred to, he had probable cause to believe that the plaintiff had committed a forgery. In the prosecution of criminals some latitude must necessarily be allowed to a complainant who makes a charge against a party, with reasonable grounds to believe that such party has been guilty of a criminal offence, and the law does not hold a person thus acting responsible for damages because it turns out that he has made a mistake, and the charge made is not sustained. Probable cause is defined to be a reasonable suspicion, supported by circumstances sufficient *Page 26 to warrant a cautious man in the belief that the person accused is guilty of the offence charged. And it was enough for the defendant to show that he had reasonable ground to believe that the plaintiff was guilty at the time the charge was made. (Farnam v. Feeley, 56 N.Y., 451, 456; 2 Denio, 617; Miller v. Mulligan, 48 Barb., 30.) Probable cause does not depend upon the guilt or innocence of the accused, but a belief of the prosecutor concerning such guilt or innocence. (Miller v.Mulligan, supra; Seibert v. Price, 5 Watts Seargent, 438.) These familiar rules are mainly reiterated in Carl v. Ayers (53 N.Y., 14), and it is there said, that "public policy requires that a person shall be protected, who, in good faith and upon reasonable grounds, causes an arrest upon a criminal charge, and the law will not subject him to liability therefor." It is also said, that a groundless suspicion is not enough, which is unwarranted by the acts of the accused or the facts known to the accused. It is, however, well settled that either the acts of the accused or facts known to the prosecutor will justify a criminal charge, provided they are brought within the rules laid down. While there are hardships accompanying an enforcement of the established rules referred to, which are the result of the wisdom and experience of the past, and innocent persons are sometimes accused and placed in positions which are calculated to awaken a keen sense of injury and injustice, the public welfare, and the protection of society from the inroads of criminals, demand that a certain degree of security should be insured to those who, upon reasonable grounds, place themselves in the attitude of prosecutors against wrong-doers.
In view of the evidence in this case, which is uncontradicted, I cannot resist the conclusion that the defendant had sufficient facts within his knowledge, and information which he had received, to prefer the charge alleged, and that he acted with probable cause to believe that the plaintiff had committed the crime charged. The question of malice is not important to discuss, as even if it existed, and there was probable cause, the defendant was justified. As the case stood upon *Page 27 the evidence, there was nothing for the jury to pass upon, and the judge properly directed a verdict for the defendant.
The judgment must be affirmed, with costs.
All concur for reversal; except MILLER and FOLGER, JJ., dissenting.
FOLGER, J., concurs with MILLER, J., in result.
Judgment reversed.