before the grand jury, and the bills were ignored. Afterwards the defendant presented a third bill, which on his own testimony was found. This prosecution he kept pending for three years, when the plaintiff took the record down for trial, the defendant, although in court and called upon, declining to appear as a witness. The plaintiff was acquitted; Held, there was prima facie evidence of want of probable cause.1 But the mere failure on the part of the prosecutor to appear and prosecute is not of itself evidence of want of probable cause.' Where it appeared that plaintiff was employed by H. to work some timber into spars; before the work was completed H. assigned all his goods to defendant for the benefit of his creditors. At this time £19 remained due plaintiff for work done to that time. Plaintiff went to defendant's yard, where the spars were, and asked for them, and on defendant's foreman refusing to give them up, plaintiff next morning took them away, and his attorney wrote defendant's attorney that plaintiff claimed a lien on the spars. Defendant demanded the spars back; plaintiff refused to deliver them; defendant gave plaintiff into custody for stealing the spars; plaintiff asked defendant why he gave him into custody; defendant replied, "You had no right to take the spars away; I think you merely fetched them away to get what was your due." Held, there was evidence of the absence of reasonable and

probable cause.3 In an action for a malicious prosecution, the charge having been for stealing a horse, left with a servant to show with a view to a sale, and the horse having been bought honestly and openly ;-Held,

1 Taylor v. Willans, 2 B. & Adol. 845; s. c. Willans v. Taylor, 6 Bing. 183; affi'd 3 M. & P. 350; see Purcell v. Macnamara, 9 East, 361; Wallis v. Alpine, I Camp. 204, note; Nicholson v. Coghill, 4 B. & C. 21; Brown v. Randall, 36 Conn. 56; Johnson v. Chambers, 10 Ired. 287; Braveboy v. Cockfield, 2 McMul. 270.

2 Gorton v. De Angelis, 6 Wend. 418; Roberts v. Bayles, 1 Sandf. 47.

that there was no reasonable cause.' The plaintiff was tenant to defendant, who resided in Wiltshire, of lands in Carmarthenshire, together with the exclusive right of sporting over defendant's lands adjacent. Plaintiff fished one of the ponds by cutting down the dam. D., defendant's local agent, suggested to plaintiff that he might fish a certain pond on the estate by cutting down the bank, which plaintiff accordingly did. Disputes afterwards arose between plaintiff and defendant, D. laid an information before a magistrate against plaintiff for unlawfully breaking down the dam and destroying the fish; and on D.'s testimony the magistrate held plaintiff to answer an indictment. A bill was preferred, but ignored. Defendant was not present at the hearing of the information, nor was there any evidence to show that he knew that D. had given the plaintiff permission. At the trial the jury found that D. had given permission, and that D. acted under defendant's authority in instituting the proceedings. Held, that, independently of the permission given by D., there was no reasonable or probable cause for instituting the proceeding."

The defendant may rebut the evidence of want of probable cause by evidence of reasonable and probable cause, and reasonable and probable cause may be shown. by evidence of facts which would constitute a prima facie case against plaintiff, although the evidence might be insufficient to convict. It is some evidence of probable cause that the jury paused before rendering a verdict of not guilty, and so is the finding of a true bill by the

1 Stewart v. Beaumont, 4 Fost. & Fin. 1034.

2 Michell v. Williams, 11 M. & W. 205. Where the prosecution was founded upon several charges or a divisible charge, an action may be maintained (other circumstances concurring) if one or some divisible part of the charge was without reasonable and probable cause. (Reed v. Taylor, 4 Taunt. 616; and see Ellis v. Abrahams, 8 Q. B. 709; Candler v. Petit, 2 Hall [N. Y.] 315.)

3 Dawson v. Van Sandau, II Weekly Rep. 516.

4 Smith v. Macdonald, 3 Esp. 7.

grand jury.

But to rebut evidence of want of probable cause, defendant cannot prove the general bad reputation of the plaintiff. Nor can a defendant give evidence that the general reputation of plaintiff was suspicious, and that his house had been searched on former occasions.3

$ 427. Under certain conditions it is sufficient evidence of reasonable and probable cause that the defendant in what he did acted under the advice of reputable counsel. The conditions upon which this defense is available are, that the defendant honestly sought the advice of counsel to direct his action and not to cloak his malice, and that, prior to receiving advice, he fully and fairly stated to counsel all the facts of the case, so far as known to him; and what were the facts so stated must be shown. Nor is a defendant deprived of the

6

1 Brown v. Griffin, Cheves, 32. Defendant cannot prove by a grand juror that the grand jury hesitated about returning "no bill," and that eight jurymen were in favor of finding an indictment. (Scotten v. Longfellow, 40 Ind. 23.)

2 Oliver v. Pate, 43 Ind. 132. Plaintiff may prove his good reputation and defendant's knowledge thereof as showing want of probable cause. (Blizzard v. Hays, 46 Ind. 166.)

3 Newsam v. Carr, 2 Stark. Rep. 69. Where defendant gave evidence of probable cause, defendant was allowed to prove the plaintiff a man of notoriously bad character. (Rodriguez v. Ladmire, 2 Esp. 72.)

4 Advice of "pettifogger" no defense (Stanton v. Hart, 27 Mich. 539); nor is the advice of a justice of the peace (Burgett v. Burgett, 43 Ind. 78), or of one who holds himself out as a licensed lawyer, but is not so in fact. (Murphy v. Larson, 77 Ill. 172.) To admit evidence of advice of counsel is going a good way. (Blunt v. Little, 3 Mason, 102.) "We do not feel at liberty to carry it further by admitting testimony of the opinion of any gentleman, however reputable, who has not qualified himself for giving advice upon questions of law by studying it as a science and pursuing it as a profession." (Beal v. Robeson, 8 Ired. 276.)

5 Fisher v. Forrester, 33 Penn. St. R. 501; and see Skidmore v. Bricker, 77 Ill. 164; Galloway v. Stewart, 49 Ind. 156; Cole v. Curtis, 16 Minn. 182; Sharpe v. Johnston, 59 Mo. 557.

6 Stanton v. Hart, 27 Mich. 539; Wicker v. Hotchkiss, 62 Ill. 107; Blunt . Little, 3 Mason, 102; Center v. Spring, 2 Iowa, 403; Potter v. Seale, 8 Cal. 217; Bliss v. Wyman, 7 Cal. 257. Where a collector, by advice of the U. S. district attorney, instituted a suit against plaintiff, held such advice was probable cause. (Murray v. McLane, 2 Car. Law Repos. 186; and see Laughlin v. Clawson, 27 Penn. St. R. 330.)

benefit of this defense by the fact that the advice was erroneous.' If the defendant acted bona fide on the advice received, it is a defense." But it has been said: Advice of counsel will not of itself protect a client from the imputation of malice. To enable it to have that effect the question must be one of law, or some legal principle must be involved, in order to a proper decision of which the law applicable to the question must be ascertained. In such a case, if the client acts in good faith upon the advice of counsel learned in the law, he cannot be charged with malice." 3

428. The question of probable cause does not turn upon the actual guilt or innocence of the plaintiff. The guilt or innocence was the issue in the prosccution of which the plaintiff complains, and where, after the termination of that prosecution in his favor, he sues for damages, on the ground that the prosecution was without probable cause, it is no defense to allege that in fact the plaintiff was guilty." Nor does the question of probable cause turn upon a consideration of what were the facts of the case, but upon a consideration of what were the facts as they appeared to, or were known by, or

1 Richardson v. Virtue, 9 Sup. Ct. Rep. (2 Hun), 208; 4 Sup. Ct. Rep. (T. & C.) 441; Hall v. Suydam, 6 Barb. 83; Stone v. Swift, 4 Pick. 389; Hewlett v. Cruchley, 5 Taunt. 277. In an action against A. for malicious prosecution, defendant's attorney proved that he instituted the prosecution by the order of a city alderman; Held that defendant's counsel might ask the witness, the attorney, whether defendant had desired him not to prosecute on his, defendant's, behalf, but could not ask him what defendant had said to him on the subject of the prosecution. (Osterman v. Bateman, 2 C. & K. 728.)

2 Ravenga v. Macintosh, 2 Barn. & Cr. 693.

3 Mullin, J., Laird v. Taylor, 66 Barb. 143.

+ Carl v. Ayers, 53 N. Y. 17; Hall v. Suydam, 6 Barb. 83; Foshay v. Ferguson, 2 Denio, 619; Wanser v. Wyckoff, 16 Sup. Ct. Rep. (9 Hun), 179; Scanlan v. Cowley, 9 Abb. Pr. Rep. 94; Siebert v. Price, 5 Watts & S. 438; Swaim v. Stafford, 3 Ired. 289; 4 Id. 392; Sharpe v. Johnston, 50 Mo. 557. Held error to lead the jury to infer that the guilt or innocence of the plaintiff of the charge was a question in the cause. (Fisher v. Forrester, 33 Penn. St. R. 501.)

Delegal v. Highley, 3 Bing. N. C. 950.

* *

were believed to be by the defendant. The controlling fact is not was there reasonable and probable cause for the prosecution, but had the defendant, at the time of instituting the prosecution, reasonable and probable cause for so doing. One who makes a charge or institutes a prosecution which at the time he knows to be unfounded, acts without reasonable or probable cause. In an action for maliciously prosecuting the plaintiff for perjury, the judge charged: "That * if defendant, at the time he preferred the indictment, acting upon information he had received, believed, and had reasonable grounds for believing, that plaintiff had sworn falsely, then there was reasonable and probable cause for preferring the indictment; but if defendant, at the time he preferred the indictment, did not believe the information he had received to be true, but, in his own mind, believed, and had reasonable ground to believe, that plaintiff had not sworn falsely, or, still more, if he believed that plaintiff had spoken the truth, then there was no reasonable or probable cause for the prosecution;" held correct. Where the Where the prosecution is for larceny, the knowledge of defendant that the plaintiff claimed to own the property he was accused of stealing, and had a prima facie right to it, is evidence of want of probable cause.3 In an action for a malicious prosecution for sheep stealing, it appeared at the trial that plaintiff was possessed of a sheep which defendant claimed as one of a lot stolen from him. Plaintiff gave an account of the way he became possessed of it, which, if the sheep was the defendant's, must have been willfully false. The defendant took away the sheep. The plaintiff sued him

2

1 James v. Phelps, 11 Adol. & El. 483; Gallaway v. Burr, 32 Mich. 332.

2 Heslop v. Chapman, 23 Law Jour. Rep. N. S. 49 Q. B.; affirming s. c. Haddrick v. Heslop, 12 Q. B. 267.

3 Weaver v. Townsend, 14 Wend. 192.