Opinion of the Court.

they were making an assignment of them to any person. They supposed the notes were paid, and placed their names upon them, merely because they were requested to do so by E. M. Fisher, and without any reason to suppose he was intending to issue the notes again with their indorsement. Adam Fisher, one of the defendants, and a member of the firm, was called by defendants as a witness, and he testified he was present when several of these notes were presented by the payees for payment, and E. M. Fisher told them that J. M. Fisher furnished the money "to pay the notes," and we observe all through his testimony, that when left to narrate the transaction in his own way, he speaks of it as a payment.

Although the legal effect of an assignment of negotiable paper can not be impaired by parol proof of a different verbal agreement, it is always proper to show the time of the indorsement, and the circumstances under which it was made. These facts enable the court to judge of the intent of the parties interested, and of the real meaning of the indorsement. In the present case the payees presented their overdue notes to the makers for payment, and received the money. They were undoubtedly told that J. M. Fisher had aided the firm in raising the money, or that he had furnished the money, as James Fisher testifies, but even that information would only confirm the impression that E. M. Fisher was paying the notes; for if the firm had borrowed the money either directly from J. M. Fisher, or by the aid of his indorsement, still, when borrowed, it became the money of the firm, and one of the partners was using it in discharge of the firm's indebtedness. When asked to place their names upon the notes, they did so unhesitatingly, having, as they testify, entire confidence in E. M. Fisher, and, probably thinking the indorsement of no consequence, or perhaps intended as a receipt, the notes being paid. The testimony shows that these persons were unfamiliar with business of this character, one of them indorsing by his mark. The assignment written over their names was without recourse, but if it had not been, it surely would not be claimed that an

Opinion of the Court. Syllabus.

assignment could have been written over their signatures, which would have imposed on them any kind or degree of responsibility.

To speak of the maker of a note purchasing it after maturity, by paying the holder the amount due would be a solecism. E. M. Fisher could make no purchase of the notes for himself or for the firm that would be any thing in substance but a payment; and, admitting that he could have bought them for his brother, we will not treat the transaction. as such a purchase, except on satisfactory proof that the fullest explanation was made to the holders of the notes, and that they perfectly understood that they were not receiving payment of their past due debts, but simply selling them to the maker for the benefit of some third person. Such a transaction is so at variance with ordinary usage as to need clear proof, that the parties receiving the money understood it in that light.

As the notes, after being taken up were re-issued to J. M. Fisher by the makers, as against them he would be entitled to participate in the proceeds of the mortgage, but the notes in his hands must be postponed to those falling due at the end of the second and third years.

Decree reversed.

HENRY BOURNE

v.

JOSEPH STOUT.

1. NEW TRIAL-finding as to facts. When the evidence is conflicting, it is the province of the jury to weigh it, and give credence to such portions as they believe to be true, and reject the balance; and in such a case their finding will not be disturbed unless it is manifestly against the evidence.

2. MALICIOUS PROSECUTION—probable cause. In an action for malicious prosecution in procuring the plaintiff's arrest on a criminal charge, if it

Syllabus. Opinion of the Court.

appear that defendant had probable cause to believe that plaintiff was guilty, the defendant will not be liable.

3. In such a case it is not necessary that all the facts shall be true upon which the prosecutor acts. If he honestly believes them to be true, and they are of such a character as would induce a reasonable and prudent man to believe them to be true, then there is probable cause.

4. PROBABLE CAUSE question of fact, under instructions. In a suit for malicious prosecution, the court can not rightfully say to the jury, that there is, or is not probable cause, but it is the duty of the court, when asked, to inform the jury what facts constitute, and what do not constitute, probable cause, leaving it to the jury to say whether such facts are proved.

5. INSTRUCTIONS-repeating. It is not error to refuse instructions when the legal propositions contained in them are embraced in others which are given.

APPEAL from the County Court of La Salle County; the Hon. CHARLES H. GILMAN, Judge, presiding.

The substance of the facts appear in the opinion of the Court.

Mr. E. C. LEWIS, & Mr. GEO. W. STIPP, for the appellant.

Mr. T. LYLE DICKEY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case for a malicious prosecution, brought by appellant in the La Salle county court against appellee. It appears that appellee placed in the hands of appellant, four head of horses for sale, together with some other personal property. There is no dispute that he sold three of them for which he accounted. But as to whether the other Appellee contends that it was

was sold there is a controversy. not sold, or if it was, that appellant did not account for it, whilst appellant swears it was sold and accounted for by him. He having started to remove with his family to Kansas, appellee made complaint and procured a warrant for larceny against appellant of the colt in dispute, upon which he was

Opinion of the Court.

pursued, arrested, and brought back; and, on an examination, he was recognized for his appearance at the next term of court to answer the charge. The grand jury returned a true bill, and appellant was put on trial, and after introducing the testimony on behalf of the people, the prosecuting attorney abandoned the case, and appellant was discharged. And this suit was brought for an alleged malicious prosecution.

The case was tried by the court and a jury, and the issues were found for appellee; a motion for a new trial was overruled, and judgment rendered on the verdict, and the case is brought to this court on appeal, and various errors are assigned.

An examination of the evidence preserved in the record, discloses the fact that it was conflicting, and it was the province of the jury to weigh it, and give credence to such portions as they believed to be true, and reject the balance. They have seen proper to believe that introduced by appellee, and we are not prepared to say that in doing so they erred. In such a conflict they must determine, and we will not disturb their finding unless it is manifestly against the evidence, and such is not the case on this record. They saw the witnesses testify, and had every opportunity to determine which was the more worthy of credit. It is no doubt true, that if appellee's evidence were left entirely out of view, there would be a clear case for recovery; but, on the other hand, if appellant's testimony were excluded from consideration, the verdict would be manifestly right. There is no ground for setting aside the verdict because it is not supported by the testimony.

If the evidence on the part of appellee is true, then there can be no doubt, that there was probable cause to believe that appellant was guilty. In such cases it is not necessary, as this court has repeatedly held, that all the facts shall be true upon which the prosecutor acts; but if he honestly believes them to be true, and they are of such character as would induce a reasonable and prudent man to believe them to be true, then there is probable cause. If a prosecutor were compelled, when

Opinion of the Court.

sued, to prove the truth of all the facts and circumstances upon which he acted, before he could escape liability, there would be no safety in starting criminal prosecutions, except in cases where the proof was clear and irresistible. To announce such a rule would well nigh afford immunity to every species of crime. No such rule, has, so far as we are enabled to find, ever been announced. The jury have given credence to appellee's testimony, and if so, they could not do otherwise than find there was probable cause.

But some criticisms are made upon the instructions given. for appellee. In the instructions given for appellant, the court clearly and correctly informs the jury what is not probable cause. And in appellee's instructions they are correctly informed what constitutes probable cause; with such instructions the jury could not be misled. Appellee's instructions in defining what constitutes probable cause, are but the reverse of appellant's, in stating what is not probable cause. Taking the instructions as a series, we can perceive no objection to them, and we think they presented the law of the case correctly and fairly to the jury. We do not understand appellee's instructions as counsel for appellant do. They insist that they leave the question of probable cause to the jury. This is not a fair criticism. The court informs the jury what facts, if proved, constitute probable cause, properly leaving it to the jury to say whether such facts are proved. It is not the duty of the court, nor can he rightfully say to the jury, that there is, or is not, probable cause in a case; but it is his duty, when asked, to inform them what facts constitute, and what do not constitute, probable cause. And the court did so in this case.

Nor do we perceive that the criticism of the instructions, that they are not applicable to the several counts of the declaration is entitled to weight. They announce correct legal propositions. And we are not able to see, from the evidence, that there was any material change of circumstances between the suing out the warrant, and the action of the grand jury, that rendered it improper for appellee to further prosecute. In fact we are at a loss to perceive how appellee could