Burhans v. Sanford & Brown
New York Supreme Court
This was an action on the cause for a malicious prosecution, tried at the Albany circuit in October, 1836, before the Hon. James Vanderpoel, then one of the circuit judges.
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This was an action on the cause for a malicious prosecution, tried at the Albany circuit in October, 1836, before the Hon. James Vanderpoel, then one of the circuit judges. The plaintiff proved that in January, 1830, he was arrested and held to bail on a capias issued out of the mayor’s court of the city of Albany, at the suit of the defendants, in an action of slander, without a judge’s order to hold to bail. 2 R. S. 348, § 8. Sanford & Brown declared in that action' the defendant pleaded not guilty and gave, , notice of special matter in justification. In July, 1831, Sanford & Brown…
1Opinion of the Court
By the Court,
Bronson, J.
When this case was before the court on a former occasion, the case stated that the plaintiffs in the action of slander suffered a judgment as in case of nonsuit to be taken against them ; and we held that this fact alone did not furnish sufficient evidence of a want of probable cause, to entitle the plaintiff to a verdict. The mere omission to prosecute an action, by reason of which the defendant obtains a judgment of non pros, or as in case of nonsuit does not of itself furnish a sufficient foundation for this action. Sinclair v. Eldred, 4 Taunt. 7. See also Purcell…
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