William Merriam vs. Nathaniel Mitchell, 13 Me. 439

The decision of the Court upon the case was communicated at the July Term, in this county, 1837. By the Court. The testimony of Albert Beed and of Francis Croolcer, in regard to the letter directed to a lady, and opened by the defendant at Lincolnville, if not admissible as a part of what was said and done by him on the tour, which led to the prosecution of the plaintiff, was at most irrelevant and immaterh al, and in our judgment affords no sufficient ground for disturbing the verdict.

It does not appear, that the attention of the Judge was called at the trial to any objection made to a part of O’Brien’s deposition; and he was not desired to rule upon its admissibility. The idle rumor heard by O’Brien of the arrest of Col. Hall, was known at the trial to have been false. It was altogether immaterial, and could not have operated to the prejudice of the defendant. That he entertained suspicions of some postmaster west of Belfast, is abundantly proved, and is not controverted. The records of the Camden post-office were kept in pursuance of law.

They were public records, made by a sworn officer of the government; and were in our opinion legally admissible in evidence, to show the transactions of that office. If fraudulently or corruptly kept, they were liable to bo controverted, but were entitled to credence, until impugned or impeached. The Judge instructed the jury, that there was, in point of law, no probable cause for the prosecution; but he submitted certain questions of fact to their consideration, the determination of which was designed to enable the Court, to decide upon the correctness of this instruction.

From their finding it appears, that the plaintiff was entirely innocent of the charge, preferred against him. And it does not appear from any evidence in the case, that any ground of suspicion could justly or fairly arise from any part of his conduct. It further appears from the finding of the jury, that the package, supposed to be missing, was in the mail-bag, when searched by the defendant; and it was in proof, that it reached its destination at Bath, in due course of mail. The cause of the prosecution, then, was the fact that the package was overlooked by the defendant.

That there must have been some carelessness or defect in the search, is sufficiently apparent. The assurance of the defendant, however strong it may have been, was based upon his own error, mistake or negligence; for such it undoubtedly was ; although participated in by others, who assisted in the search. The proceedings before the justice, and subsequently before the grand jury, have no other foundation. We cannot but regard it as too much to hold this to have been probable cause, to justify a prosecution against an innocent and unoffending man, who had given no color for suspicion against him.

Reparation is demanded in such a case, by the plainest dictates of common justice. If a man had prosecuted and imprisoned a faithful servant, on the false charge of purloining an

article of value, which had remained locked up in his desk, merely because he had carelessly overlooked it, he could not and ought not to rest satisfied with himself, until he had made restitution. II e could not reasonably expect, that the claim of the injured party for damages in a court of justice, could be defeated by the strength of his assurance.

If such a doctrine were established by law, innocence might indeed escape the punishment due to guilt, if the error were seasonably discovered, but it would he without indemnity for losses and expenses growing out of the charge, to say nothing of personal suffering and lacerated feelings. The pretence of error and unintentional mistake would become a cloak, to give impunity to malice, and fraud, and falsehood. The defendant was manifestly excited in the attempt to bring the business, which had been confided to him, to a successful termination. He knew that one package had been lost at Lincoln-ville.

It should have occurred to him, that the decoy package might have been lost in the same manner. It was a fact, in itself calculated to weaken any just conviction, that it was abstracted by the hand of the plaintiff. Nor did the more decisive fact of the arrival of the letter, impair his assurance • for when apprized of that by Col. Hall at ffiscasset, he still insisted upon the guilt of the plaintiff. The jury have expressly found malice. They had a right to do so, from the want of probable cause. To them also was properly submitted all the testimony, bearing upon the plaintiff’s claim for damages.

It belonged to them to estimate the loss to the plaintiff, arising from the prosecution 5 and we perceive no sufficient reason to set aside their verdict upon that, or upon any other ground, taken for the defendant. Judgment on the verdict*