author: By the Court, Robertson, J. White, J.

text:
    Charles N. Baldwin, plaintiff and respondent, vs. Elizabeth C. and Alexander F. Kimmel, defendants and appellants.
    1. Under sections 274 and 287 of the Code as amended in 1862, relative to actions against married women, it is only the cause of action against or liability of a married woman defendant that is to be tried in the action against her. The determination of the mode of satisfying the amount recovered is postponed until the execution. The judgment does not cease to be m rein, although formally in personam; it is only to he enforced against a particular kind 'of property.
    2. It is still necessary, in an action against a married woman, to allege in the complaint the facts creating her peculiar liability for an act relating to her separate estate, or relating to trade carried on by her for her own benefit.
    3. A married woman can not be arrested in a civil action.
    4. In all cases of a judgment against a married woman, it should he expressly stated therein that the amount is “ to be levied or collected out of her separate estate and not otherwise,” and the execution should follow the judgment, m its terms.
    5. A mere absolute judgment in personmn against a married woman, recovered prior to 1862, is not sufficient to entitle the creditor to sue her thereon, and recover a judgment against her separate property. The creditor in such action on the judgment must also establish, at least, that the original cause of action was such as to entitle the plaintiff to a judgment against her separate estate.
    6. The jurisdiction of a court to render a judgment was in this case allowed to be impeached fourteen years after its entry, by proof that the process was never in fact served on. the defendant.
    7. A promise to pay a judgment does not preclude the defendant from showing that the court was without jurisdiction to render it, for want of service of process, nor is it any evidence that process was in fact served.
    (Before Robertson, White and Barbour, JJ.)
    Heard June 4,1863;
    decided July 11, 1863.
    This was an appeal from a judgment entered upon the report of a referee.
    The action was brought by Charles N. Baldwin, upon a judgment recovered in this court in 1849, by Joshua P. Humphreys and others, against the defendants, Elizabeth C. Kimmel and Alexander F. Kimmel, for $169.45. The answer of the defendant Elizabeth consisted of a denial of the allegations in the complaint, an averment that "no summons in the original action had been served on her, and that at the time of the alleged recovery of said judgment she was, and still continues a married woman, the wife of the defendant Alexander.
    The action was referred to Hon. Murray Hoffman, as sole referee, to hear and determine.
    The judgment recovered in 1849 was upon a promissory note. The complaint in that action did not expressly seek to charge, her separate estate ; it was not alleged in it that the note was given for E. 0. Kimmels benefit, or that of her separate estate, or that she had any separate estate. It was admitted on the trial in this action that she was, at the time of the making of the note upon which the judgment was recovered, and at the time of the recovery of the judgment, and still is, the wife of the defendant Alexander F. Kimmel. The plaintiff had judgment against the defendant E. 0. Kimmel, absolutely; and she now appealed therefrom.

      D. Noble Rowan, for the defendant, appellant.
    I. The appellant, by reason of her coverture, was not liable on the note upon which the original judgment was recovered. That contract was, as to her, void. (Yale v. Dederer, 18 N. Y. Rep. 265. 22 Id. 450.)
    II. The appellant has not waived this defense by omiting to plead in the former action.
    1. A married woman, though she had in equity a power of disposing of her separate estate,' is incapable of making a contract personally binding upon her either at law or in equity. The statutes of 1848 and 1849 have not changed the law as respects her capacity. (Yale v. Dederer, supra.)

    2. In accordance with this doctrine, her promissory notes, bonds and other obligations have uniformly been held void. (2 Kent’s Com. 164. 2 Story’s Eq. Juris. §§ 1399, 1401. Gardner v. Gardner, 22 Wend. 526.) And a confession of judgment by her is void. (Wotkyns v. Abrahams, 14 How. Pr. 191. Brittin v. Wilder, 6 Hill, 242.)
    3. It is claimed, however, that a feme covert can do that indirectly which the law does not permit her to do directly. This position is entirely at war with principle, and unsustained by authority.
    4. Coverture incapacitates from any and every contract, except such as arise from the jus disponendi. A contracting capacity is required, in order to waive a right; aud it must he borne in mind that the personal contracts of a married woman are not voidable merely, but void. (1 Pars. on Cont. 286, 359, 362, note.) The cases relied upon by the respondent fall far short of sustaining the referee’s decision in this case. There is no case wherein an attempt by a plaintiff to enforce a judgment in personam against a married woman has been aided by the courts.
    III. Formerly, a debt in a case like this might be relieved upon a writ of error coram nobis, (Tidd’s Pr. 1135, 1136,) and though this was not strictly a writ of right, yet the court could not refuse the writ, when error in fact outside the record plainly appeared. (Higbie v. Comstock, 1 Denio, 652.) Now the writ of error is abolished, and the only manner of reviewing a judgment is by appeal. (Code, § 323.) And no appeal can be had from a judgment by default. (Pope v. Dinsmore, 8 Abb. Pr. 429. Stewart v. Morton, Id. 429, note.) And no way is provided for the assignment of errors in fact. The remedy by motion is addressed to the ^discretion of the court. (Genet v. Dusenbury, 2 Duer, 679.) The Code is not to be construed so as to deprive the ■ defendant of any rights she would have had before; but having abolished the former remedy,, it leaves to'her the privilege of asserting her rights by answer. (Code, § 150.)
    IV. The complaint set forth a personal judgment, and asks for a judgment of the same kind. It is defective in not alleging that the debt (the judgment) was contracted for the benefit of her separate estate—or that she has any separate estate. (Dickerman v. Abrahams, 21 Barb. 551.) The amendment of 1862, to section 274 of the Code, does not affect or alter the rules of pleading. It only relates to the form of the judgment.
    V. We have assumed that the summons in the original action was served on the appellant. We insist, however, that there was no such service, and that the referee should have found for the appellant on this ground.
    1. This defense can be set up, and is available in this action. It goes to the question of jurisdiction, and is always held a good defense. (Starbuck v. Murray, 5 Wend. 148. Noyes v. Butler, 6 Barb. 613. Dobson v. Pearce, 12 N. Y. Rep. 156.)
    2. This is a case where a court of equity would undoubtedly give relief, and where we can avail ourselves of our equitable rights by answer. (Dobson v. Pearce, supra.)

      Reuben W. Van Pelt, for the plaintiff, respondent.
    I. Coverture, like infancy, usury, the statute of limitations must be pleaded; if not, it will be deemed waived. It is not competent, even on appeal from a judgment, to raise, for the first time the question of coverture, when it has not been pleaded, although the evidence shows the facts to have existed. (Castree v. Gavelle, 4 E. D. Smith, 425.)
    II. The judgment is not void, but is a valid and binding judgment until reversed, and no proceedings whatever have been taken to vacate or reverse the judgment in question. (Genet v. Dusenbury, 2 Duer, 679.)
    III. Ho fraud or unfair means were practiced against the defendant to recover the original judgment, and she had acquiesced in it for fourteen years. There can scarcely be a doubt but that Mrs. Kimmel was served with the summons and complaint, and if any irregularity existed in the manner of entering and the form of the judgment against her, it should have been corrected by motion. Mere irregularities do not render judgments, absolutely void. (Ingersoll v. Bostwick, 22 N. Y. Rep. 425.)
   By the Court, Robertson, J.

The defendant is a married woman, and the present action seems to be brought against her in order to obtain the benefit of the amendment of section 274 of the Code, passed in April, 1862, whereby judgment was authorized to be given against a married woman for costs and damages to fee levied of her separate estate; and also of section 287, authorizing the issuing of executions against married women to be levied of their separate estate. These amendments, which extended the provisions passed in 1853, relative to contracts of a wife before marriage, (Laws of 1853, p. 1057, ch. 576,) to all her liabilities, left the right of action against, or the liability of, a married woman to be tried in the action, and postponed the determination of the mode of satisfying the amount recovered to the execution. The judgment thereby did not cease to be in rent, but became nominally in personam, only to be enforced against a particular kind of property.

These amendments would, of course, not do away with the necessity of alleging in the complaint and showing the liability of a married woman, for an act relating to her separate estate or trade, carried on by her under the act of 1860, (N. Y. Sess. Laws 1860, p. 157, § 7,) or generally whatever was necessary to show her liability. A woman may be arrested for a willful injury to person, character or property; and therefore judgment may be obtained against her for damages for such misconduct, (Code, § 179,) but this has been held not to apply to married women, (Anon. 1 Duer, 613; S. C. 8 How. 134,) and no such remedy could be enforced against one.

The amendments of 1862, therefore, leave undetermined several important questions, whether a married woman, against whom a judgment has been obtained, may bé subjected to supplementary proceedings as regards her separate property; whether on a judgment against a married woman for a tort her separate estate may be levied on; whether she can give a confession of judgment, (See Wotkins v. Abrahams, 14 How. 191; Person v. Warren, 14 Barb. 488,) and whether a new action can be commenced on a judgment against her for any cause, so as to enable the plaintiff to make her separate property liable on execution; in other words, whether a married woman is to be considered in all respects as a feme sole in regard to her liability, and the judgment in an action against' her; except as to the mode of enforcing such judgment.

At common law a married woman could have no personal property, except choses in action not reduced to possession, and they could not be levied on, and her separate personal estate could not be reached on a mere judgment. On a judgment, therefore, against her personally, only her real estate, while her husband lived, or her personal estate acquired or reduced to possession after his death, could be reached by execution.

A fair interpretation of the two amendments of sections 274 and 287, in 1862, seems to require that in all cases of a judgment against a married woman, it should be expressly stated therein that the amount is “to be levied or collected of her separate estate and not otherwise ,” as in judgments formerly against executors or administrators; and the execution of course should follow the judgment in its terms. As a plaintiff, therefore, can hereafter get no more, or less, by such a judgment hereafter obtained, than he would have by the first one, he probably would be entitled to sue upon it, in all cases: At the time of the recovery of the judgment sued upon in this case, (1849, August 1,) it depended upon the form of the judgment, whether only the real estate of the defendant could be levied on, and all remedy against her personal property must be postponed until her husband’s death or not. It was in form a general judgment in personam, to be enforced by all the means by which such a judgment could be enforced, but by no other. The only judgment which can now be given is one to be enforced against the separate property of the defendant, and in order to warrant that, it should now be alleged and shown either that the original cause of action, on which the first judgment was obtained, or that such judgment itself warranted it. A mere absolute judgment in personam, which could not have been enforced against the defendant’s personal property .until her husband’s death, and never could have been enforced against her separate estate, obtained before the change in the law, would not warrant such a new judgment. All contracts or acts of married women which would in any way make them liable, would, if made after the passage of the amendatory statute of 1862, subject their separate estate, and it only, to the provisions of that statute. In order to obtain the benefit of the change in the law, by a judgment to be levied upon the separate property of the defendant, I think the plaintiff was bound to establish, at least, that such separate property could have been reached on such original judgment, although not so expressly declared in it; in other words, that the original cause of action was such as to entitle the plaintiff to a judgment against the separate estate of the defendant.

Otherwise the effect of the amendments of 1862 would.be, to allow the plaintiff to reach property on the faith of which the original liability never was incurred, which could not then have been applied to its satisfaction, but which the legislature now by a species of confiscation is presumed to apply for that purpose, thus stripping every married woman in this state of her vested rights under any deed of trust in her favor. An intention not to be presumed, even if the act itself were constitutional. The language of such amendments is imperative “of her separate estate and not otherwise.” As, therefore, the judgment was obtained before the passage, of the act of 1862, and the pleadings, in the action in which it was recovered, show it was obtained on a promissory note claimed to be made by the defendants, I think the plaintiff was bound to establish that ' it was, when made, binding upon her separate estate, before he becomes entitled to a judgment to reach .that now which is, the only judgment he can get.

The decision of the referee giving judgment, therefore, against the defendant without proof that her separate estate was liable, or that the liability arose since April, 1862, was erroneous and ought to be reversed for that reason alone.

But the original judgment was only against E. C. Kimmel and Alexander Kimmel. In the complaint therein it was alleged that E. G. Kimmel made the note sued on. The affidavit of service of the complaint and summons was upon E. G. Kimmel only. Nothing appeared on the record to show that Elizabeth C. Kimmel was the defendant intended, or that she was a married woman. There is no evidence in this case to identify the present defendant with the E. G. Kimmel mentioned in spch original action as defendant therein, or with the person served with the summons or complaint therein. The defendant denies in her answer in this action upon the judgment, and denied in her testimony, any such •service, and, as well as her husband, testified to facts showing its exceeding improbability. Ho evidence was offered to contradict such testimony, except a promise by the defendant to pay such judgment, which does not conflict with it. Such promise, if supported by a sufficient consideration, might warrant a new action, but would not make a judgment without . jurisdiction regular, or prove that any paper had been served on the defendant. She may have made the note, and thought herself honorably bound to pay the judgment; but the promise was no admission of a legal liability, or regularity in the judgment. In the absence of any conflict of evidence, the defendant’s testimony established that she was not served, which either made the judgment void for want of jurisdiction, at least as regarded her, or disproved her identity with the person made defendant by service. (Starbuck v. Murray, 5 Wend. 148. Noyes v. Butler, 6 Barb. 613. Dobson v. Pearce, 2 Kern. 156, 164.) For this reason also the judgment was erroneous.

Upon the foregoing principles, the testimony to show the consideration of the original note, was admissible to show that the defendant’s separate estate was not liable; and was improperly excluded.

The judgment must be reversed, the order of reference vacated, unless the parties consent to its standing, and a new trial had, with costs to abide the event.

White, J.

A judgment was recovered in August, 1849, by Joshua P. Humphreys and Edward B. Humphreys, against E. 0. Kimmel and Alexander F. Kimmel, upon a promissory note, made by E. 0. Kimmel to the order of and indorsed by Alexander F. Kimmel. The judgment was recovered by default ; and the judgment roll and proceedings are in the form usual upon judgments by default in such cases, except that the affidavit of service of the summons and complaint on the defendants, is not made by the sheriff, and it does not state that the person making the service knew either of the persons served, to be either of the persons mentioned or described in the summons as a defendant therein ; nor does it state that a copy of the summons or complaint was left with either of them.

This judgment came by assignment to Baldwin, the above named plaintiff, who in 1862 brought the present action upon it, against the above named defendants, Elizabeth 0. Kimmel and Alexander F. Kimmel, alleging in the complaint, the recovery of the above mentioned judgment in 1849, that the defendant, Elizabeth 0. Kimmel, sued in this action, is the same person against whom the judgment was revovered in 1849, by- the name of E. 0. Kimmel, that said judgment of 1849 remains in full force and effect, and was duly assigned to the present plaintiff, Baldwin, by whom it is now owned ; and thereupon judgment is demanded in the complaint against the defendants for the full amount of the original judgment with interest.

The defendant. Elizabeth 0. Kimmel was alone served with the summons and complaint in the present action, and alone answered, denying in her answer every allegation of the complaint ; and further denying that she had been served with the summons and complaint in the action of 1849 ; and also controverting the allegation that she was the person intended to be described as defendant by the name of E. 0. Kimmel in that action; and alleging that at the time of the recovery of the judgment in 1849, she was and is yet, a married woman, the wife of said Alexander F. Kimmel; and further, denying any indebtedness to the Humphreys upon which her separate estate could be charged.

The cause was referred, and upon the trial before the referee, the judgment roll of the judgment 'of 1849 was read in evidence, under exceptions taken by the defendant; said exceptions alleging that the judgment was void; first, because it is a judgment in personam against a married woman, upon a promissory note made by her during coverture; and secondly, because the affidavit of service of the Summons and complaint is insufficient. Proof of the assignment of the judgment to the present plaintiff was also made.

The defendant Elizabeth 0. Kimmel testified on her own behalf that she was the wife of the defendant, Alexander F. Kimmel, and was so at the time of the making of the note upon which the judgment of 1848 was obtained; that she was never served with the summons and complaint in the action of 1849, and could not have been served at the time stated in the affidavit of service annexed to the roll, namely, June 18, 1849, because at that time and for many days previously, and for many weeks afterwards, she was very sick in bed with cholera, confined to her room from the second week in June until September, 1849, so sick that none but her attendants were permitted to see her, being a part of the time out of her mind; and the first knowledge that she had of the judgment of 1849, was when the summons.and complaint in the present action were served upon her.

Her husband, the defendant, Alexander F. Kimmel, was also sworn, and corroborated her testimony. %

Edward B. Humphreys was sworn for the plaintiff, and stated, that he had at least a dozen conversations with the defendant since the judgment in question, in which he referred to the judgment, and she said she would pay it when she was able.”

The defendant, Mrs. Kimmel, being recalled, stated positively, that she never had the conversations with Humphreys, which he swore to; that he had not been inside her house and she had not seen him since 1848.

The defendants’ counsel offered to show that the note on which the judgment of 1849 was recovered, was given for a debt due from Alexander F. Kimmel to the Humphreys, and not for any indebtedness of the defendant Elizabeth, nor for her benefit, nor for the benefit or upon the credit of her separate estate. The plaintiff’s counsel objecting to the testimony, it was excluded by the referee, to which decision the defendants counsel excepted.

Upon the foregoing testimony the referee found the existence of the judgment of 1849 unreversed, and in full force and effect, and that the whole amount, with interest, is due and payable; that the plaintiff is entitled to recover the same; that the judgment was obtained upon a promissory note made by the defendant, Elizabeth, and indorsed by her husband, the defendants then being husband and wife; that neither of them made any defense to the action on the note; and that the defense of her then' coverture can not be made available by the defendant, Elizabeth, in the present action.

The defendant duly excepted to these findings.

The judgment entered upon the findings concludes by adjudging, “that tlie said judgment be enforced and collected according to law, out of the separate estate or property of the said defendant, Elizabeth 0. Kimmel.” ■

The defendant appeals from the judgment thus rendered against her, and (so far as I can gather from the printed case and points) alleges, as grounds for reversal, in substance:

1st. That the note upon which the judgment of 1849 was recovered was void, by reason of the maker’s then coverture, and that the plea of coverture is as available to the defendant in this action, which is brought upon the judgment recovered upon the note, as it would have been in the original action brought upon the note itself, if it had been then pleaded.

2d. That the present action being brought against a married woman, upon a judgment in, personam recovered against her, the complaint should allege" facts showing affirmatively that the debt for which the note was given was an indebtedness of the defendant, incurred for the benefit or upon the credit of her separate estate; and that the complaint not containing such allegations, it does not state facts sufficient to constitute a cause of action, and the plaintiff must therefore fail.

3d. That the judgment of 1849 was void as to the defendant, Elizabeth 0. Kimmel, because the court never had jurisdiction of her; no summons having been served upon her, and she never having appeared in the action.

Upon neither the first nor second point above stated, should the judgment in this case be reversed, in my opinion.

If the defendant omitted to plead her coverture when she might have done so, and, instead of so pleading, she has suffered a judgment to be taken against her by default, the record of which presents on its face no error of fact or of law, (for nothing of her coverture appears upon the judgment roll,) she can not interpose that plea in an action brought against her upon the judgment. Her only remedy would be to apply by action or motion to open the original judgment and let her in to defend that suit.

And as to the allegations proper in a complaint in an action upon such a judgment as that recovered in 1849 ; all that it is necessary for the plaintiff to allege in the complaint, is the fact of the present existence of the judgment unreversed and unsatisfied. It is not necessary to go behind it, and make allegations respecting pre-existing matters, which that judgment must be presumed to have disposed of, and respecting which it is, so long as it stands, a complete and conclusive finality.

A question respecting the connection or relation of the original judgment to the defendant’s separate property, no more arises in such a case, than it would in a case in which a married woman should be sued upon a promissory note made by her before marriage, while a feme sole; and need no more be stated or referred to in the complaint in one case than in the other.

The direction in the judgment in this action, H that it be collected and enforced out of the defendant’s separate estate,” is not otherwise objectionable than that it fails to adopt, with sufficient.literal accuracy, what is now the authorized form of a judgment against a married woman, in every case and for any cause, (Sess. Laws of 1861, p. 849,) the object of this statute being, as I suppose, merely to give more full expression or effect to the new principle, that the wife’s debts can be made chargeable only upon her own separate estate, and the husband’s debts only upon his separate property.

But on the third of the above points I think that the testimony, as it is given in the case, preponderates irresistibly in favor of. the conclusion that the defendant was not served with a summons or complaint in the original action. All the proceedings in that action should, therefore be regarded, as to her coram non judice, and the judgment as to her absolutely void.

Upon that ground, therefore, I concur in the conclusion, that the judgment in the present action must be reversed, and a new trial ordered, with costs to abide the event; the order of reference to be vacated unless the parties stipulate that it shall remain.

Judgment reversed.


source: Caselaw Access Project

author: Robertson, J.

license: Public Domain

text:
    August Haupt, plaintiff and respondent, vs. Hermann Pohlmann, defendant and appellant.
    1. A judge at the trial is not hound, without the request of parties, to give any instructions to the jury. The latter are presumed to he acquainted with all the rules of law, in regard to which the partie^ do not require them to he instructed, or the court does not instruct them.
    2. In an action for malicious prosecution in arresting the plaintiff for felony, the fact that the plaintiff was, on the hearing, committed by the magistrate to await the action of the grand jury, is not conclusive evidence of probable cause.
    3. Conclusive evidence means either a presumption of law, or else evidence so strong as to overbear all other in the case to the contrary.
    4. In an action for malicious prosecution, want of probable cause, though a question of law, may properly be passed upon by the jury, in the absence of any request to the judge to instruct them as to the law.
    6. A refusal to nonsuit will be sustained on appeal, if it appears that there was finally in the case sufficient evidence to be submitted to the jury.
    6. Slighter evidence will suffice, to establish the want of probable cause, than to establish an affirmative.
    7. What constitutes sufficient probable cause to justify a prosecution for larceny.
    (Before Robertson, White and Barbour, JJ.)
    Heard June 10,1863;
    decided July 11, 1863.

      This was an appeal from a judgment entered on a verdict in favor of the defendant.
    The actioá was brought by August Haup.t against Hermann F. Pohlmann, to recover damages laid at $10,000, for malicious prosecution and imprisonment. The complaint alleged a malicious prosecution of the plaintiff by the defendant, in charging him with grand larceny and embezzlement; the arrest, examination and commitment, and the discharge of the plaintiff, the grand jury having refused to return a true bill. The answer denied want of probable cause, and malice, and averred that the defendant acted upon probable cause and under advice of counsel.
    The cause was tried before Justice White, and a jury, on the 14th day of November, 1861.
    When the plaintiff rested his case, it appeared that he was superintendent of the defendant’s laundry, up to the 18th day of July, 1860; that he received and collected about $150 without the knowledge of the defendant and without rendering any account therefor; that on the 18th day of July, he left the employ of the defendant; that he took a pass book of'a Mrs. Yan Houten with him, when he left, which contained the items of moneys paid to him by her, all of which became first known to the defendant after the plaintiff had left; the plaintiff did not claim? that he was authorized to retain these sums. Nothing was shown on the part of the plaintiff to explain a deficiency in the number of shirts entrusted to him, or to show that the defendant had no reasonable grounds of believing that the plaintiff had taken the missing shirts.
    A motion made by the defendant to dismiss the complaint was denied, and exception taken.
    On the part of the defendant, it was then shown that the plan tiff received a lot of shirts from the defendant’s customers ; after the plaintiff had left,. the defendant and a witness, Weilder, examined their account of shirts delivered and received, and found a deficiency of about twenty dozen, for which the defendant paid $157. There was evidence that the polaintiff’s reputation for truth and veracity was bad. The defendant testified that he had received notice of the plaintiff’s intention to leave ; found his cloak and shawl in the plaintiff’s possession, up town; never saw a book of account of money collected by the plaintiff, and did not know that he had received money from Mrs. Van Houten, but ascertained this fact about six days after the plaintiff had left; that he acted upon the advice of counsel, in making the charge. On a former occasion, when two shirts were missing, the foreman told the defendant that they had been delivered to the plaintiff, who returned them afterwards, after they had been worn. The plaintiff called several witnesses to prove his good character. The counsel for the defendant then renewed the motion to dismiss the complaint, on the ground that from the evidence it appeared that the defendant had probable cause for prefering the charge. The court denied the motion, and the defendant excepted.
    The court thereupon charged the jury, among other things, as follows: “ The point for your consideration is,- whether the defendant proceeded, in the matter of the prosecution of the plaintiff, in a careful, honest, prudent manner, and without malice. If you think he has done so,, and that there was probable cause for his action in the premises, then he is entitled to a verdict at your hands. If, on the contrary, you find that there was no probable cause for the defendant’s supposing that there had been a theft committed, or money embezzled by the plaintiff; if you think it was mere unreasonable suspicion, such as no man of ordinary understanding should have entertained, you are to determine whether there was probable cause for the action of the defendant in the matter complained of, and whether he acted in a malicious, or in a prudent, reasonable and temperate manner.” The defendant excepted to that part of the charge instructing the jury that they were to determine, from all the facts in the case, whether there was probable cause or not.
    The counsel for the defendant requested the court to charge the jury that the commitment before the magistrate was evidence of probable cause. The court declined so to charge, "but did charge the jury as follows: “The commitment is an item of evidence showing probable cause, but is by no means conclusive evidence.” To this the defendant’s counsel excepted.
    The jury thereupon rendered a verdict for the plaintiff, for the sum of $600. From the judgment entered upon this verdict the defendant appealed.

      James Eschwege, for the defendant, appellant.
    I. The learned court erred in refusing to dismiss the complaint when the plaintiff rested.
    1. The proceedings and depositions before the police magistrate read in evidence by the plaintiff, and his commitment, are evidence of probable cause.
    2. The plaintiff failed to show a want of probable cause. The fact that the grand jury did not return a true bill, is not prima facie evidence of want of probable cause. (Byne v. Moore, 5 Taunt. 187. Freeman v. Arkell, 2 B. & C. 494. Vanderbilt v. Mathis, 5 Duer, 304.)
    3. The plaintiff failed to prove malice on the part of the defendant. (Bulkeley v. Smith, 2 Duer, 271. Vanderbilt v. Mathis, 5 id. 304.) When, as in this'case, upon the jdaintiff resting, a verdict in his favor would be against or not sustained by the evidence, a nonsuit should be granted. (Ernst v. The Hudson River R. R. Co., 24 How. Pr. 97, Wilds v. The Hudson River R. R. Co., 24 N. Y. Rep. 430.)
    II. The learned judge erred in refusing to dismiss the complaint after the partiés had rested ;• the uncontroverted and clearly established facts not being sufficient to prove a want of probable cause. (Besson v. Southard, 10 N. Y. Rep. 236. Bulkeley v. Smith, 2 Duer, 261. Masten v. Deyo, 2 Wend. 424, 426. Burlingame v. Burlingame, 8 Cowen, 141.)
    III. The court erred in instructing the jury that “they, the jury, were to determine from all the facts in the case, whether there was probable cause or not.” Probable cause is in all cases a question of law, in relation to which the judge who tries the cause is bound to express a positive opinion. (Bulkeley v. Smith, supra. Bulkeley v. Keteltas, 6 N. Y. Rep. 384.)

      IY. The court erred in qualifying the request to charge, made by the defendant, that the commitment was evidence of probable cause; by adding the qualification, the coúrt left it to the jury to find that the commitment was not evidence of probable cause.
    Y. The verdict is against the evidence. The jury found that the charge of embezzlement was made without any probable cause; the account signed by the plaintiff, his own admission, and offered on his part, amounts to proof of probable cause. (Scanlan v. Cowley, 2 Hilton, 489.) The jury, although charged by the court, that the plaintiff, to recover, must establish malice on the part of the defendant, have, in the absence of all proof of such malice, found a verdict for the plaintiff. (Bulkeley v. Smith, supra.)

      Samuel Hirsch, for the plaintiff, respondent.
    I. The judge on the trial passed three times on the question of probable cause, as matter of law. (1.) In denying the motion of the appellant’s attorney below, for a -nonsuit. (2.) When the plaintiff rested his case ; and lastly, when all the testimony on the part of the plaintiff was in,-, viz. in his charge to the jury.
    II. There was evidence to show the absence of probable cause for the arrest and imprisonment of the plaintiff, and malice in the preferring and prosecuting of the criminal charges. The plaintiff .had rendered account of the moneys" received and expended before the imprisonment and alleged malicious prosecution, and the account so rendered is remarkably particular. -There was nothing from which the defendant could reasonably have inferred or suspected the larceny of the shirts by the plaintiff. The attempt to impeach the character of the plaintiff proves the malice of the defendant.
    ITT. The testimony as to the want of probable cause, as well as to the existence thereof, was conflicting, and was a proper element for the consideration of the jury in determining what damages, if any, they should award to the plaintiff, and .was, therefore, properly submitted to the jury, after the judge had himself passed upon the question of probable cause, as a question of law.
   Robertson, J.

In this action, which is brought for a malicious prosecution, the principal complaint of the action of the court on the trial is, that the evidence not having been sufficient to establish a want of probable cause, it should, therefore, not have been left to the jury. There was no request made to the court to instruct the jury that any particular state of facts did not or did constitute probable cause in law. It did instruct them that they “were to determine from all the facts in the case, whether there was probable cause,” to which an exception was taken. A request was made to charge the jury that “the commitment was evidence of probable cause;” which the court declined to charge in those words, but did instruct the jury that such “ commitment was an item of evidence, but by no means conclusive evidenceto which also an exception was taken. Neither of those instructions were improper. Prima facie every case tried before a jury, unless otherwise required, is to be determined by them; a court is not bound, without the request of parties, to give' any instructions to them, and jurors are presumed to be acquainted with all the rules of law, in regard to which the parties do not request them to be instructed or the court does not instruct them. Probable cause was an essential issue in this case; the testimony was addressed to the jury, and it toas their province to determine from the established facts in the case, in the absence of any instruction to the contrary, whether there was a want of probable cause; clearly an instruction to the reverse of such-proposition would not have been correct. If the counsel was apprehensive that the jury would understand the court as saying that probable cause was a question of fact and not of law, he should have required the instruction to be made more definite, by calling on the court to pass upon such proposition more definitely. (Wyman v. Hart, 12 How. Pr. 122. Winchell v. Heeks, 18 N. Y. Rep. 558. Law v. Merrills, 6 Wend. 268.) The charge that a commitment is not conclusive evidence of probable cause is correct, and does not qualify its being evidence, but merely affects its weight as such; conclusive evidence means either a presumption of law, or else evidence so strong as to overbear all other in the case to the contrary. (Aeby v. Rapelye, 1 Hill, 9.)

The refusal to dismiss the complaint is of course sustained by the other evidence in the case, if it furnishes enough to go to the jury upon, and it is wholly immaterial whether at the time of the denial of such motion there was sufficient or not.

The right to permit new evidence to be introduced is entirely a matter of discretion with the court before the cause is disposed of and the trial ended. But the defendant’s counsel renewed the motion to dismiss upon the ground that the. facts in the case showed a want of probable cause, as matter of law, and therefore there was nothing to submit to the jury.

The allegations in the complaint of a charge by the defendant, before some police justice in the city of New York, against the plaintiff, of a felonious embezzlement of certain moneys belonging to him, and of a felonious larceny of certain shirts, on which a warrant was issued and the plaintiff detained in custody, is admitted in the answer. It sets up as a defense that he made such charge believing the plaintiff to be guilty of the offense charged, and not through malice; avers that the plaintiff was in his employ as clerk, from January to July, 1860, and received a large sum of money as such, and applied the same to his own use, without the defendant’s knowledge. That he left the defendant’s employ on the 19th of July, 1860, without consulting him, and he did not know of his collecting such moneys until after such departure. Also that the .plaintiff received a large quantity of shirts for the defendant, from ■ a firm, (Strauss & Co.) to be washed, and after the plaintiff left, a large number of them were missing, and the defendant suspected him of, and therefore charged him with, a larceny. Also that he made a full statement of the facts on which such charges were founded to. a counsel, by whom he was advised that the plaintiff was guilty of such charges, and they could be sustained, and therefore he commenced such proceedings, and employed such counsel to conduct them.

The plaintiff, to establish the want of probable cause, introduced in evidence three depositions of the defendant, taken on the 26th and 30th of July, 1860, and two by two other persons, , severally, purporting to be sworn to before a police justice of the city of New York; which were admitted without objection. They were proved to have been taken from the files of the clerk of the court of sessions; how or by whom placed there did not appear. They did not purport to be examinations of any witnesses on any charge, or that the magistrate before whom they were sworn issued the warrant on which the plaintiff was arrested; or that he detained him for examination or inquiry. They were, therefore, simply affidavits made by the defendant, containing his version of, the plaintiff’s conduct.

The first of these depositions of the defendant states the retention by the plaintiff of the moneys received by him as employee, and collected from customers, and that the defendant received on the previous day from a friend of the plaintiff’s an account of the moneys collected by him, alleged to be but not annexed to such deposition. It also denies any authority to the plaintiff to collect or receive such moneys, and that whatever moneys he received he was bound to pay over daily to the defendant. It also alleged that the plaintiff had quit his employment, and that a large number of shirts received by him from a customer had disappeared from his place of business, and had not been seen since the plaintiff left his employ. His other affidavits tend to sustain the same state of facts, and speak of certain papers as produced which are not identified or proved in any way. Another affidavit of a customer of the defendant’s shows the collection of money by the plaintiff from her, and another of the clerk of the firm, whose shirts had disappeared, of the number received from him by the plaintiff personally and delivered by the latter to him, and the quantity unaccounted for. The defendant admits in such affidavits, the receipt by him, from a Mr. Hahn, of the account of moneys collected by the defendant, in his writing.

Upon the charge of embezzlement, the only defect of the testimony would be, in some want of authority of the plaintiff to collect the moneys- withheld by him, it being proved that he did withhold them; his right to retain them for his use or disburse them for the defendant’s. Except the testimony of Mr. Hahn, there is no evidence in regard to such authority beyond the plaintiff’s and defendant’s. He states that the defendant once told him it was the same thing whether he paid his bills to himself, or the plaintiff, who was his foreman ; and again, that the latter did not come to his place of business because he was sick, and that he would have to give up the -business unless he had a man who understood it. This was three or four days after the plaintiff left and the witness took his account of the money received by him to the defendant to procure a settlement. The testimony of the plaintiff and defendant is conflicting as to the authority of the former to receive and disburse the moneys of the latter. It is true, the plaintiff is obliged to establish a negative, viz. Want of probable cause, but slighter evidence may do that, than if he had to establish an affirmative. It is true, the plaintiff’s character for truth and veracity was assailed, but it was sustained by about the same number of witnesses, and his credibility was a proper question for the jury; as well as the relative credit to be given to his own account and the defendant’s.

In regard to the charge' of larceny, however, it was established that the plaintiff had received the articles and they were under his charge, and were not produced or accounted for; and although others had access to the same place of deposit, it was a question as to who took them; the foreman, who was bound to see to their safe keeping, or a workman under him. The foreman left without notice or reason, apparently, and the other remained. Between the two the defendant was justified in suspecting the former. In law, therefore, there was probable cause for such accusation, whether the. plaintiff was innocent or guilty, and the defendant was not liable for any damages arising from that branch of the charge. (Bulkeley v. Smith, 2 Seld. 384. S. C. 2 Duer, 261. Vanderbilt v. Mathis, 5 id 304.) As the court was not asked to charge the jury upon that point, it would not be available upon an exception; but as it was left to the jury, they evidently must have based their estimate of damages upon the ground of the malice of both accusations. Considering the proof of the previous conduct and character of the plaintiff in pecuniary transactions where he received money for others, the damage to his. character by a charge of embezzlement would be highly overrated by the sum given. Even so far as his character for veracity is concerned, positive testimony, if reliable, .would be far more effectual than negative, of persons who have heard nothing; the experience of both with public opinion respecting it, should be equally great to balance them. But the striking proof of particular transactions shows considerable and frequent disregard as to pecuniary obligations^ Hone of them, however, approach the criminality of stealing, and I can not but think the greater portion of the damages was given for that charge. The verdict ought therefore to be reduced as excessive.

The order denying a new trial should therefore be reversed, on the defendant’s paying the costs of the former trial of such motion and the appeal therefrom, unless the plaintiff will elect to reduce his damages to $300, which is nearly $20 a day for his imprisonment, and deduct $15 from the extra allowance made;1 in which latter case both the judgment and order denying a new trial to stand. Ho costs to be allowed on the appeal from the judgment unless the defendant fail to pay the costs above specified in five days after they are adjusted, in which case both the judgment and order must be affirmed with costs,

White and Barbour,-JJ. concurred in this opinion.

Judgment accordingly.