trespass; and proof of cutting and carrying away any one of those trees would be sufficient to sustain the action. And if he were guilty of the trespass, he cannot maintain this action, although he may have been acquitted in the District Court where he was prosecuted; and it is immaterial whether the defendant knew him guilty or not, if he can now prove the fact that he was guilty, or if he can even prove that there was probable cause to suspect him of being guilty, it is sufficient for him." The ground taken in Mowry v. Miller is clearly petitio principii; for the very question is, whether the action cannot, in the case under consideration, be maintained, notwithstanding the actual existence of a cause of prosecution. The case referred to was overruled in Spengler v. Davy, 15 Gratt. 381, 388. The same is true, perhaps, of the position assumed in Adams v. Lisher. The defendant, say the court, was doing the public a service in instituting the prosecution, and should therefore be protected. He should be protected if he was acting legally; otherwise, not. But to attempt to do a public service is not necessarily a legal thing. The difficulty, therefore, is not solved. The substance of the declaration is that the defendant has preferred against the plaintiff a false charge, maliciously and without sufficient ground. Now it must be observed that the plaintiff is an innocent man, as his acquittal has established; and if the prosecutor had no knowledge of the facts which might have (clearly) justified him, that is, if he did not have an affirmative reasonable belief that the accused was guilty, - he has preferred a false charge, knowing it to be false. How, then, can he escape liability? Probable cause in fact existed; but the prosecutor, bent as he is on mischief to a man whom he knows, or is bound to presume, to be innocent, prefers his charge entirely regardless of his existence, or, as in Broad v. Ham, positively disbelieving in its existence. Upon what principle of law can one who has assumed such a wicked position afterwards, when he sees that he has involved himself in trouble, claim a protection which he either directly rejected or had not the decency, in his haste and malice, to attempt to discover? But if probable cause can be strained in any way to cover such a case, the difficulty may be obviated, it would seem, by framing the declaration, like that in Pasley v. Freeman, ante, p. 1, for the making a false charge, knowing it to be false, and intending thereby to injure the plaintiff. It is a good defence to this action that the defendant, before preferring the charge, laid the matter before professional counsel, and has acted bona fide upon the advice given, however erroneous. Snow v. Allen, 1 Stark. 502; Ravenga v. Macintosh, 2 Barn. & C. 693; Hewlett v. Cruchley, 5 Taunt. 277; Hall v. Suydam, 6 Barb. 84; Walter v. Sample, 25 Penn. St. 275; Cooper v. Utterbach, 37 Md. 282; Olmstead v. Partridge, 16 Gray, 381. In Snow v. Allen, supra, it appeared that the plaintiff's attorney had notified the prosecutor, before the arrest, that the proceeding was illegal; but the prosecutor's attorney, relying, though erroneously, on judicial authority and the opinion of a special pleader, persisted in his course; and the result was the action for malicious prosecution, in which the plaintiff failed. Lord Ellenborough said: "How can it be contended here that the defendant acted maliciously? He acted ignorantly." The Attorney-General: But the prosecutor must have acted bona fide in obtaining and following the advice given, or his defence may fail. Ravenga v. Macintosh, 2 Barn. & C. 693; Sappington v. Watson, 50 Mo. 83; Cooper v. Utterbach, 37 Md. 282. In Ravenga v. Macintosh, Mr. Baron Bayley said: "I have no doubt that in this case there was a want of probable cause. I accede to the proposition that if a party lays all the facts of his case fairly before counsel, and acts bona fide upon the opinion given by that counsel (however erroneous that opinion may be), he is not liable to an action of this description. A party, however, may take the opinions of six different persons, of which three are one way and three another. It is therefore a question for the jury whether he acted bona fide on the opinion, believing that he had a cause of action. The jury in this case have found, and there was abundant evidence to justify them in drawing the conclusion, that the defendant did not act bona fide, and that he did not believe that he had any cause of action whatever. Assuming that the defendant's belief that he had a cause of action would amount to a probable cause, still, after the jury have found that he did not believe that he had any cause of action whatever, the judge would have been bound to say that he had not reasonable or probable cause of action." The finding of the jury in this case established both malice and want of probable cause in the prosecutor; the former, in that he did not act bona fide upon the advice given, and the latter, in that he did not believe he had any cause of action. See supra. But had the jury merely found that he had improperly obtained or improperly acted upon the advice, the plaintiff would only have established the malice of the defendant. The facts in his possession at the time of the charge might still' have given a reasonable and probable cause for the prosecution; and since, if he had this, he was justified, notwithstanding his malice, the action would not lie. If this be true, there is ground for criticising the remark in Walter v. Sample, 25 Penn. St. 275, that suppression of facts, evasion, or falsehood, in stating the case to counsel, would make the prosecutor liable. This would, at most, only show malice (see Cooper v. Utterbach, 37 Md. 282); and it may be that, had he stated the case as he understood it, he would have been deemed to have probable cause. Or, he may have come into possession of other facts after asking the advice and before preferring the charge. And the plaintiff must disprove the presumption of probable cause which the law accords to public prosecutions. Walter v. Sample, supra. To put the case in more direct form, if the defendant plead that he preferred the charge upon the advice of counsel, after stating fully the facts, it will not be sufficient for the plaintiff to reply that the defendant did not obtain or act on the advice in good faith. He must also show that he did not believe the advice, or other facts showing that he was not in possession of reasonable and probable cause. We have therefore stated supra that the defence may fail if the prosecutor do not act in the matter bona fide. This defence of having acted upon professional advice is held to be a peculiar one, and strictly confined to the case of advice obtained from lawyers. Beal v. Robeson, 8 Ired. 276; Olmstead v. Partridge, 16 Gray, 381; Straus v. Young, 36 Md. 246. In the case first cited, the defendant, to rebut the plaintiff's allegation of malice, offered to prove that, before preferring the charge complained of, he had consulted with a certain justice of the peace, with whom he had been in the habit of advising on legal matters; and that he had followed his advice. The testimony was held inadmissible. "We have neither seen," said the court, "nor heard of any case where the opinion of an unprofessional man, taken by the defendant, has been admitted to show that he acted in good faith and without malice." And, after quoting the language of Story, J., in Blunt v. Little, 3 Mason, 102, to the effect that to admit the evidence even of counsel was going a great way, the court add concerning the rule: "We do not feel at liberty to carry it further by admitting testimony of the opinion of any gentleman, however respectable, who has not qualified himself for giving advice upon questions of law by studying it as a science, and pursuing it as a profession." See Leigh v. Webb, 3 Esp. 165; Heyward v. Cuthbert, 4 McCord, 354; McNeely v. Driskill, 3 Blackf. 259; Bartlett v. Brown, 6 R. I. 37, of magistrates issuing wrong warrants of their own motion, on a true statement of facts. The difference between acting upon legal and non-legal advice appears very clearly in respect of the defence of probable cause. The evidence of this is obviously stronger when asserted by a lawyer than when asserted by a layman. Indeed, it is so strong in the former case that the courts do not examine if it be a reasonable cause; the opinion of counsel is conclusive, so far as the defence based on it is concerned. If, therefore, the defendant answer that he acted bona fide upon legal advice, his defence is perfect. But if he should say that he had acted upon the advice of a discreet friend, it would be necessary to set forth fully the facts, so that the court might judge whether they constituted probable cause, precisely as he would have to do if he had acted without the advice of others, because one layman is as competent to judge of such a matter as another. It is clear, therefore, that such an averment of itself would be of no avail. And it does not follow in every case that because a party makes a full and correct statement of a case, as he honestly believes, to his counsel, and receives and acts upon his advice, that his action is properly prosecuted; for he may, after the advice, and before the accusation, have been informed of facts which would satisfy a cautious man that the accused was not guilty. Cole v. Curtis, 16 Minn. 182. That the mere abandonment of the prosecution and the acquittal of the defendant are not even prima facie evidence of a want of probable cause has often been decided. Willans v. Taylor, 6 Bing. 186; Purcell v. McNamara, 9 East, 361; Wallis v. Alpine, 1 Camp. 204, note; Johnson v. Chambers, 10 Ired. 287. So of an entry of nolle pros. : Yocum v. Polly, 1 B. Mon. 358; and of a dismissal for want of prosecution: Purcell v. McNamara, supra; Braveboy v. Cockfield, 2 McMull. 270. But the circumstances of the abandonment may be such as to constitute a prima facie case of want of probable cause, as in Willans v. Taylor, supra. There, it appeared, the defendant had presented two bills for perjury against the plaintiff, but did not himself appear before the grand jury; and the bills were ignored. He presented a third; and, on his own testimony, the bill was found. This prosecution he kept suspended for three years, when the plaintiff, taking the record down for trial, was acquitted; the defendant then declining to appear as a witness, though in court and called on. This was held prima facie evidence of want of probable cause. See also Nicholson v. Coghill, 4 Barn. & C. 21; Brown v. Randall, 36 Conn. 56. So a voluntary discontinuance of a civil suit is prima facie evidence of want of probable cause. Nicholson v. Coghill, supra; Burhans v. Sanford, 19 Wend. 417; Cardival v. Smith, 109 Mass. 158; Pierce v. Street, 3 Barn. & Ald. 397. Otherwise, of suffering a judgment for the defendant as in case of nonsuit, or a non pros. Burhans v. Sanford, supra; Sinclair v. Eldred, 4 Taunt. 7; Kirkpatrick v. Kirkpatrick, 39 Penn. St. 288; Driggs v. Burton, 44 Vt. 124. A discharge of the plaintiff by a committing magistrate, authorized to commit or hold to bail upon circumstances warranting suspicion, is held prima facie evidence of the want of probable cause. Bostick v. Rutherford, 4 Hawks, 83; Johnson v. Chambers, 10 Ired. 287; Williams v. Norwood, 2 Yerg. 329; Josselyn v. McAllister, 25 Mich. 45. Contra, Israel v. Brooks, 23 Ill. 575. The converse is also held, that a commitment of the plaintiff is prima facie evidence of probable cause. Graham v. Noble, 13 Serg. & R. 233; Braveboy v. Cockfield, 2 McMull. 270; Bacon v. Towne, 4 Cush. 217. So of the finding of the grand jury, notwithstanding the acquittal. Cardival v. Smith, 109 Mass. 158. The want of probable cause cannot be implied from proof of malice, however clear; for a person may prosecute a guilty person out of mere personal ill-will. Turner v. Ambler, 10 Q. B. 252, 257, Paterson, J.; Boyd v. Cross, 35 Md. 194; Mitchinson v. Cross, 58 Ill. 366. These and many other cases. show that the question whether the facts constitute reasonable and probable cause is for the court to decide. Malice. - Malice may be inferred from the want of probable cause, though it is not a necessary deduction; and the question of its existence, unlike that of probable cause, is one of fact for the jury. Griffin v. Chubb, 7 Tex. 603. There is no presumption of malice in this action; the plaintiff must prove it. Ib.; Levy v. Brannan, 39 Cal. 485; Boyd v. Cross, 35 Md. 194; Dietz v. Langfitt, 63 Penn. 234; Merkle v. Ottensmeyer, 50 Mo. 49. But malice may be inferred from the activity and zeal displayed by the defendant in conducting the prosecution. Straus v. Young, 36 Md. 246. It is not necessary to prove malice in the ordinary sense of the term: it is enough that any improper or sinister motive be shown. Stockley v. Hornidge, 8 Car. & P. 11; Jones v. Nicholls, 3 Moore & P. 12; Page v. Cushing, 38 Maine, 522; Barron v. Mason, 30 Vt. 189. In Stockley v. Hornidge, supra, the court expressed the opinion, but with out directly deciding the point, that an action lies for maliciously arresting the plaintiff, and taking him in execution at the defendant's suit, though the plaintiff was taken in execution at the instance of the defendant's attorney, and without the knowledge or assent of the defendant. To the objection that there could be no evidence of malice in such a case, Best, C. J., said: "But malice may be inferred. Malice in law means an act done wrongfully, and without reasonable or probable cause, and not, as in common parlance, an act dictated by angry feeling or vindictive motives." But see Burnaps v. Albert, Taney, 244, holding the doctrine of respondeat superior not to apply to such a case. In Page v. Cushing, supra, the Supreme Court of Maine said that, "in a legal sense, malice has a meaning different from its popular signification. Acts wilfully and designedly done, which are unlawful, are malicious in respect to those to whom they are injurious. One may prosecute a laudable purpose with an honest intention, but in such a manner, and in such disregard of the rights of others, as to render his acts unlawful. Prosecutions may be instituted and pursued with pure motives to suppress crimes, but so regardless of established forms of law and of judicial proceedings as to render the transactions illegal and malicious. The general motive may be upright and commendable, while the particular acts in reference to others may be malicious in the legal acceptation of the term. So that an act may be malicious in a legal sense, which is not prompted or characterized by malevolence or corrupt design." prosecution is "injury sustained by the plaintiff either in his person by imprisonment, his reputation by the scandal, or in his property by the expense. If the plaintiff cannot prove any such injury, he cannot maintain the action." Selwyn's N. P. 1026; Savil v. Roberts, 1 Salk. 13; Jones v. Gwynn, 10 Mod. 214. If, therefore, the charge complained of be not scandalous, so that an action of slander could not be maintained for a similar verbal imputation, it is necessary for the plaintiff to aver and prove special damages, as was decided in the principal case, Byne v. Moore. In Frierson v. Hewitt, 2 Hill (S. Car.), 499, an action for maliciously indicting the plaintiff for killing cattle, the court, by Mr. Justice O'Neall, after stating that the indictment had only charged a trespass, said: “The indictment must charge a crime; and then the action is sustainable per se, on showing a want of probable cause. There is another class of cases which are popularly called actions for malicious prosecution, but they are misnamed; they are actions on the case in which both a scienter and a per quod must be laid and proved. I allude now, first, to actions for false and malicious prosecutions for a mere misdemeanor, involving no moral turpitude; secondly, to an abuse of judicial process, by procuring a man to be indicted as for a crime when it is a mere trespass; third, malicious search-warrants. In all these cases it will be perceived that they cannot be governed by the ordinary rules applicable to actions for malicious prosecutions. It is said by most of our law-writers that, in such cases, you must not only prove want of probable cause, but also express malice and actual injury or loss, as deprivation of |