now defendant procures the now plaintiff to be arrested and held to bail in an action on contract. The case comes on for trial very shortly afterwards, and the plaintiff discontinues his suit. This is deemed prima facie evidence of want of probable cause.1

Again, the mere abandonment of the prosecution by the prosecutor, and the acquittal of the prisoner, are no evidence of a want of probable cause.2 Such facts in themselves show nothing except that the prosecution has failed. It may still have been undertaken upon reasonable grounds of suspicion. Still, the circumstances of the abandonment may be such as to indicate prima facie a want of probable cause. For example: The defendant presents two bills for perjury against the plaintiff, but does not himself appear before the grand jury, and the bills are ignored. He presents a third bill, and, on his own testimony, the grand jury return a true bill. The defendant now keeps the prosecution suspended for three years, when the plaintiff, taking down the record for trial, is acquitted; the defendant declining to appear as a witness, though in court at the time and called upon to testify. These facts indicate the absence of probable cause.4

If the prosecutor takes the advice of a practising lawyer upon the question whether the facts within his knowledge are such as to justify a complaint, and acts bona fide upon the advice given, he will be protected even

1 Nicholson v. Coghill, 6 Dowl. & R. 12; Webb v. Hill, 3 Car. & P. 485.

2 Willans v. Taylor, 6 Bing. 183; Vanderbilt v. Mathis, 5 Duer, 304; Cases, 58; Johnson v. Chambers, 10 Ired. 287.

3 The magistrate or grand jury decides whether there is reasonable ground for putting the prisoner upon trial; the petit jury decides whether the prisoner is guilty.

4 Willans v. Taylor, 6 Bing. 183.

though the counsel gave erroneous advice.1 That is, he will be protected, though he might not have been in possession of facts such as would have justified a prosecution without the advice. For example: The defendant states to his attorney the facts in his possession concerning a crime supposed to have been committed by the plaintiff. The attorney advises the defendant that he can safely procure the plaintiff's arrest. The defendant is not liable, though the facts presented did not in law constitute probable cause.2

The prosecutor must, however, as the proposition itself states, act bona fide upon the advice given, if he rest his defence upon such a ground alone. For example: The defendant procures the arrest of the plaintiff, having first taken the advice of legal counsel upon the facts. This advice is erroneous, and it is not acted upon in good faith believing it to be correct; the arrest being procured for the indirect and sinister purpose of compelling the plaintiff to sanction the issuance of certain illegal bonds. The defendant is liable.3

If, after taking legal advice and before the arrest, new facts come to the knowledge of the prosecutor, he cannot justify the arrest as made on advice, unless such new facts are consistent with the advice which has been given. If they should be of a contrary nature, casting new doubt upon the party's guilt, the prosecutor cannot safely proceed to procure an arrest except upon new advice; unless indeed the entire chain of facts in his possession shall satisfy the court that there existed

1 Cooper v. Utterbach, 37 Md. 282; Olmstead v. Partridge, 16 Gray, 381; Cole v. Curtis, 16 Minn. 182; Ravenga v. Mackintosh, 2 B. & C. 693; Snow v. Allen, 1 Stark. 502.

2 Snow v. Allen, supra.

8 Ravenga v. Mackintosh, 2 B. & C. 693. See Hewlett v. Cruchley, 5 Taunt. 277, 283.

To make use of the

a reasonable ground for his action. advice given, when the new facts indicate that the accused is not guilty, would not be to act upon the advice in good faith.1

Again, if the only defence be that the prosecutor acted upon legal advice, a breach of duty may still be made out if it appear that the prosecutor untruly stated to the counsel the facts within his knowledge. The plaintiff's case, so far as it rested on the proof of want of probable cause, would be established by showing that the actual facts known to the prosecutor (differing from those on which the advice was obtained) showed that he had no reasonable ground for instituting the prosecution.

The result is, that the defence of advice of legal counsel, to establish probable cause, must not be resorted to as a mere cover for the prosecution, but must be the result of an honest and fair purpose; and the statement made at the time by the prosecutor to his counsel must be full and true, and consistent with that purpose.2

This defence of having acted upon legal advice is, it seems, a strict one, confined to the case of advice obtained from lawyers admitted to practise in the courts. Such persons are certified to be competent to give legal advice, and their advice when properly obtained and acted upon is conclusive of the existence of probable cause. But if the prosecutor act upon the advice of a person not a lawyer, and therefore not declared competent to give legal advice, the facts must be shown upon which the advice was obtained, however honestly and properly it was sought and acted upon. It is not enough that the advice was given by an officer of the law, professing familiarity with its principles, if such a person were not

1 See Fitzjohn v. Mackinder, 9 C. B. N. s. 505, 531, Ex. Ch. Cockburn, C. J.; Cole v. Curtis, 16 Minn. 182.

Walter v. Sample, 25 Penn. St. 275.

a lawyer. For example: The defendant procures the arrest of the plaintiff upon advice of a justice of the peace, with whom he has been in the habit of advising on legal matters; but the justice is not a lawyer. This is not evidence of probable cause.1

The want of probable cause is not to be inferred because of mere evidence of malice, since a person may maliciously prosecute another whom he has the strongest evidence against; whom, indeed, he may have caught in the commission of the crime.2 There must be some evidence indicating that the prosecutor instituted the suit under circumstances which would not have induced a cautious man to act.

It should be observed, finally, that it is necessary for the plaintiff, even in a jury case, to convince the judge of the want of probable cause upon the facts proved. The facts material to the question of probable cause must be found by the jury; but the judge decides whether the facts so found establish probable cause or want of it.3

§ 4. OF MALICE.

To make out a breach of duty by the defendant, the plaintiff must also produce evidence that the prosecution was instituted with express or actual malice towards the accused.4 Malice is not to be inferred because of

1 Beal v. Robeson, 8 Ired. 276.

2 Turner v. Ambler, 10 Q. B. 252, 257; Boyd v. Cross, 35 Md. 194. 8 Panton v. Williams, 2 Q. B. 169, Ex. Ch.; Lister v. Perryman, L. R. 4 H. L. 521; Abrath v. Northeastern Ry. Co. 11 App. Cas. 247; Dietz v. Langfitt, 63 Penn. St. 234; Driggs v. Burton, 44 Vt. 124; Boyd v. Cross, supra.

4 Vanderbilt v. Mathis, 5 Duer, 304; Cases, 58; Pangburn v. Bull, 1 Wend. 345; Carson v. Edgeworth, 43 Mich. 241; Dietz v. Langfitt, 63 Penn. St. 234.

mere proof of a want of probable cause,1 any more than want of probable cause is to be inferred because of mere proof of malice; it may be inferred as a fact from want of probable cause, but it is not a necessary inference.2 A man may institute a prosecution against another without the least motive of malice towards him, though he had no sufficient ground for doing so.3

The jury must be allowed, and it is their duty, to pass upon the question of malice as a distinct matter. There is, therefore, no such thing in the law of malicious prosecution as implied malice or malice in law. For example: Evidence having been introduced in an action for a malicious prosecution, which showed that the defendant had instituted the prosecution without probable cause, the judge instructs the jury that there are two kinds of malice, malice in law and malice in fact, and that in the present case there was malice in law because the prosecution was wrongful, being without probable cause. This is erroneous; the existence of malice is a question for the jury.5 It is not necessary, however, notwithstanding the language of some of the old decisions, to prove the existence of an intense hostility and rancor; evidence of slight hostility, or of the existence of any sinister motive, or indirect motive of wrong, is sufficient. For example: The defendant is shown to have gone out of his way in a prosecution of the plaintiff, by publishing the proceedings against him. This is evidence of malice."

6

1 Vanderbilt v. Mathis, 5 Duer, 304; Cases, 58; Griffin v. Chubb, 7 Texas, 603, 617.

2 Carson v.

St. 234.

Edgeworth, 43 Mich. 241; Dietz v. Langfitt, 63 Penn.

3 Griffin v. Chubb, supra, at p. 616.

4 Mitchell v. Jenkins, 5 B. & Ad. 588; Carson v. Edgeworth, supra.

5 Mitchell v. Jenkins, supra.

6 Savil v. Roberts, 1 Salk. 13.

7 Chambers v. Robinson, 2 Strange, 691. See Stevens v. Midland