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because the court confined it to the certain use, and did not consider it in the other connection. Under the statutory regulations concerning the wrongful suing out of attachments in Tennessee, such a record has a conclusive effect to establish a want of probable cause in a suit for the statutory damages; but this is not that kind of suit, nor are we aware of any similar statute in Arkansas. But, aside from the judgment in that court, it is absolutely proved in this case that there was not the shadow of a cause for the attachment. The affidavit was wholly false. Brewer was not about to fraudulently convey his property. It is conceded that there was no other conveyance about to be made except the Richardson & May mortgage, and the affidavit was based alone on that. But that mortgage was a perfectly fair and honest one, and is the same kind in universal use in this valley between the planter and his supply merchant, and has been, time and again, sustained by the courts of Arkansas. This being so, it was plain to the court that there was no probable cause for suing out the attachment. There was no doubt a confusion of ideas on the part of the defendants and their then counsel. They conceived that Brewer had misrepresented and deceived them, and was acting dishonestly about their agreement with him, and this, coupled with a belief that if the defendants could levy an attachment before the Richardson & May mortgage was properly executed their lien would be the better, no doubt instigated the attachment. This deceit, however, even if it existed, was no ground for attachment; and it requires but little discrimination to see that the issue of probable cause is not in the least aided by these facts. It depends entirely upon the validity of the Richardson & May mortgage, which was the conveyance alleged to be fraudulent.

In ordinary prosecutions for crime, or in ordinary process for civil suits, what is a probable cause of action or prosecution has, perhaps, a much wider scope of inquiry than in suits where the grounds of action by extraordinary process are defined by statutory law. The inquiry here is whether defendants had probable cause to believe that they had good statutory ground of attachment, and this depended wholly on that mortgage and on nothing else, since no other ground. was pretended to exist or be set up in the proof. There could be no probable cause of action in a case like this, unless there was a probable ground for attachment under the statute prescribing that remedy. The only question, then, for the jury was that submitted to them— whether the attachment was sued out maliciously. No exception was taken to the definition of malice which was given to the jury, but great complaint was made that the question of probable cause, as based upon the advice of counsel that an attachment would lie, was not submitted to them. In effect, this exception is that the court refused to adopt the theory of defendants, to support which there is no doubt some authority, that the advice of counsel furnishes probable cause for proceeding by attachment, and that, when given under the v.22F,no.4-15

conditions laid down in the authorities, it is an absolute protection in a suit for damages. I do not think so; nor are we committed to this doctrine by the expressions used in Kennedy v. Meacham, 18 FED. REP. 312. There the plaintiff was suing for the statutory damages allowed by the attachment laws of Tennessee for wrongfully suing out the writ, and the court was excluding from the jury the claim for punitive damages. There was no doubt that the ground of attachment in that case was perfect, the defendant being a non-resident, and the consideration was whether the attachment plaintiff was maliciously suing on a false claim of debt or pursuing a lawful remedy to collect a debt in good faith believed to exist. The court was stating a general principle, and was not called on and gave no attention to its precise character or limitations.

Here the contention is that in all cases where there is no concealment or omission of material facts, the advice of counsel furnishes probable cause for the suit. It may furnish a reasonable belief in the existence of a cause or ground of attachment which would show a state of mind in the attachment plaintiff that would altogether negative the existence of that condition of his mind which the law denominates malice. But how can the ill-considered, erroneous, ignorant, or, it may be, sound advice of a lawyer strengthen or add anything to the cause or ground of attachment? That depends on the facts, and wholly on them. Generally, it depends wholly on the situation and conduct of the defendants. If that situation and conduct be well and accurately known or defined, and susceptible of satisfactory proof of facts sufficient to maintain the plaintiff's suit, there would be a good cause of action; while if they be doubtful and equivocal, or proof of them difficult and uncertain, there would be a probable or possible cause of action. It is in this direction we must look for a solution of the issue of probable cause, and the advice of lawyers can neither add to nor take from the other facts of the case their force in the process of reasoning necessary to determine it. The cause of action is neither better nor worse after advice of counsel is taken. The client may not understand the bearing of the facts on his legal rights, nor whether he has a cause of action at all, and being advised that he has, by counsel of repute, may reasonably believe that it is so, and safely bring his suit if the facts plausibly support it. But this surely can neither enlarge nor diminish his legal right as found in the facts, nor so affect, let us say, the statute by which his cause of action is precisely defined, as in this case. If the facts do not fall within it, the statute gives no ground of attachment, and a reasonable belief that his lawyer will properly construe the statute, or wisely determine the application of the facts to it, can give the client no other ground of attachment than he had before,-neither one that is probable nor of any other degree.

In the very nature of the case, it seems to me, the advice of counsel is properly referred to its influence on the plaintiff's state of

mind on the issue of malice or no malice on his part, and not to the grade or degree of plaintiff's cause of action on the issue of its being probable or improbable as a ground for the attachment. It is an important distinction, because in the one view it becomes, on admitted facts, a question of law for the court, with the result that whenever the court sees that reputable counsel was sought, that all facts were stated, and nothing was concealed which due diligence would develop, it must direct a verdict for the defendant upon the ground that probable cause has been shown as a matter of law, no matter what the other facts may be, or how preposterously wrong was the advice of the lawyer, or grievous the damage done the plaintiff. This is a very shocking result, to my mind, and seems to be offering a premium for ignorance, to say nothing of the unsatisfied wrongs of the injured defendant in attachment; for the attaching plaintiff would be wiser to seek an ignorant, careless, or reckless lawyer, and bring his malicious suit for the advantage of probable success in the lottery of litigation or the coercion of a compromise, or to gratify his malice pure and simple, than to seek a more prudent counselor who would carefully advise him against the attachment. On the principle contended for, he would be equally safe in the hands of either against any claim for damages by the injured adversary party, and he might as well take the chances of gaining something by the attachment.

Nor does the rule that the advice must be that of a reputable lawyer furnish any guaranty against this result. Theoretically it might, but practically it is of little value, for reasons that are plain to all who are acquainted with the looseness with which access to the ranks of the legal profession is guarded, and the difficulty of disrating any lawyer from the character of being reputable as to his intellectual and professional acquirements. The effort of any party to prove that the lawyer giving the advice was not, in fact, nor reputed to be, one of sufficient knowledge and skill to give reasonable counsel, would be so utterly hopeless that, in effect, the theory fails to furnish any security whatever against incompetent advice.

Criticism may pronounce this a humiliating statement, but that kind of criticism deals, like the theory under consideration, with presumptions and assumptions not altogether founded in fact. A plaintiff in the action for malicious prosecution, who should challenge the reputation of the lawyer giving the defendant the advice, would find himself trying another case than his own, which would at once attract attention by the desperate character of the enterprise, and with a success much more rare than that attending similar attacks on the character of witnesses with respectable surroundings and many friends. The courts have recognized this difficulty, and shrink from the doctrine that advice of counsel is an absolute protection, which accounts for the serious difficulty of determining, in suits like this, precisely what effect the advice of counsel shall have to protect the

defendants from the consequences of a wrongful resort to the process of attachment. When the principle was established the whole number of lawyers was small, and incompetency to give safe advice so rare that the reason for the rule was substantially sound. With increasing numbers and decreasing scrutiny into the qualifications of those "called to the bar," this reason has not so entirely failed as to invoke the maxim that "when the reason of any law ceases, so does the law itself," and the courts cannot abrogate the rule, but they can guard it from abuse by confining its operation within the limits prescribed by law. It never did extend as far as defendants here claim, because tnis mode of redress for malicious prosecutions was never confined to those cases alone wherein the offending plaintiff did not take the advice of reputable counsel, and the rule cannot be properly construed to offer such a premium for reckless professional advice.

On the other hand, if we refer the advice of counsel to the issue of malice, it becomes a fact to be considered by the court or jury along. with other facts in the case in determining that issue. It may or may not conclude the issue in favor of the attaching plaintiff, but in all cases, in the absence of countervailing facts, it affords as absolute protection to him as when referred to the issue of probable cause. The charge presented the case to the jury in this view of the law with the most scrupulous care to give the defendants the fullest possible benefit of the fact that they consulted reputable counsel, but the court refused to charge that this fact of itself and by itself afforded absolute protection. There were other facts which no doubt led the jury to believe that there was malice in the legal sense, if not in a larger sense, and the objection to the charge really is that it did not end the case in favor of the defendants by exaggerating the importance of the advice of counsel into a complete protection.

This view which the court took of the matter is supported by the thoroughly convincing commentary of Professor Tiedeman in his note to Sharpe v. Johnstone, 21 Amer. Law Reg. (N. S.) 576, 582. He cites the authorities extensively, and it is not necessary to enumerate them here. It is not to be understood that the facts and circumstances relied on to show probable cause must be found always to exist in such a state of certainty as to establish the defendant's probable guilt of the offense or liablity to the cause of action; nor that the element of belief, on the part of the prosecuting plaintiff or his lawyer, is eliminated from the inquiry as to probable cause. It may be that the defendant is not guilty, or that there is no ground of attachment, and that more careful and intelligent minds would readily detect the weakness of the case and groundless character of the accusation, or that better information would have developed such weakness. But still the proper inquiry is-Would a reasonable man have brought this suit? This involves necessarily a judicial inspection of the conduct of the prosecuting plaintiff as to his diligence in ascertaining facts, his intelligent comprehension of them, his fairness in dealing with them,

his prudence in asking professional advice, and all considerations. entering into the character of his conduct about the matter, pretty much like the same inspection that goes on in determining the other issue of malice on his part. But we need not confuse the two branches of the case, albeit the processes of adjudging them be the same.

If the facts and circumstances as proven, including the advice of counsel, would excite belief in a reasonable mind of the existence of a ground of attachment, then there is probable cause for his conduct in bringing the suit, though there be no good ground of attachment, and the question is for the court or jury, or both, according to wellunderstood circumstances. This does not mean, however, that unreasonable belief can be converted into that which is reasonable simply by advice of counsel, regardless of all bearing of the other facts on the question. As it was put to counsel at the argument, no amount of reputation on the part of the lawyer would excuse the client if he brought an attachment upon a ground wholly outside of the statute; as if, for example, he should be advised that all conveyances of property while a man was in debt were fraudulent, or that all men who wore blue shirts might be attached. It is not reasonableness to the plaintiff's mind which is a test of the quality, but reasonableness as a matter of law, to be determined, not by the strength of that particular mind, nor yet by the nature and character of the advice given to it, but by the legal test in all such inquiries, here as elsewhere. And this is that belief which would be generally entertained by prudent and cautious minds acting with ordinary or average intelligence in such matters on the facts within the knowledge of the prosecuting plaintiff.

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The supreme court, in Wheeler v. Nesbit, 24 How. 544, has defined probable cause to be "the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.' Or, negatively, in another place in the opinion, "that he had no sufficient reason to believe him to be guilty." A reasonable mind is a sensible one, fairly judicious in its action, and at least somewhat cautious in reaching its conclusions. Assuming, then, as was done in charging the jury, that the defendants believed that they had a probable cause of action by attachment, or, to present it specifically, that they believed that Brewer was, in the language of their affidavit, "about fraudulently to convey his property," does that belief protect them? Mere belief will not do. It is agreed it must be honest and sincere, but under the above definition it is more important that it should be reasonable. However honest or sincere, and whether produced by advice of counsel or otherwise, surely sincerity is not synonymous with reasonableness. The belief may be never so sincere and yet unreasonable. As we cannot substitute sincerity for reasonableness in the definition, the real question is-Does advice of counsel of itself, under the given con

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