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Skidmore v. Bricker, 77 III. 164; Fadner v. Filer, 27 III. App. 506: Smith v. Zent, 59 Ind. 362; McCarthy v. Kitchen, 59 Ind. 500; Lytton v. Baird, 95 Ind. 349; Flora ... Russell (Ind.), the principal case, 37 N. E. Rep. 593 ; Mesher 2. Iddings, 72 lowa, 553; Hall v. Kehoe, 8 N. Y. Suppl. 176; Ramsey v. Arrott, 64 Tex. 320; Glasgow v. Owen, 69 Tex. 167; S. C., 6 S. W. Rep. 527 ; Shannon v. Joncs, 76 Tex. 141; S. C., 13 S. W. Rep. 477. Accordingly, the conduct of the plaintiff must be free from any bad faith. In the first place, he must have given to the attorney, as the basis for his advice, a full and fair statement of the facts of the casc, or hc will still be liable: Guthbert v. Galloway, 35 Fed. Rop. 466; Blunt v. Littlc, 3 Mason, 102; Bliss v. Wyman, 7 Cal. 257 ; Potter v. Scalc, 8 Cal. 217; Aldridge v. Churchill, 28 Ind. 62; Scotten v. Longfellow, 40 Ind. 23 ; Paddock v. Watts, 116 Ind. 146 ; S. C., 18 N. E. Rep. 518; Logan v. Maytag, 57 Iowa, 107; Mesher v. Iddings, 72 Iowa, 553; Schippel v. Norton, 38 Kans. 567; Cointement v. Cropper, 41 La. An. 303 ; S. C., 6 So. Rep. 127 ; Weil v. Israel, 42 La. An. 955; S. C., 8 So. Rep. 826 ; Wells v. Noyes, 12 Pick. 324; Donnelly v. Daggett, 145 Mass. 314 ; Stevens o. Fassett, 27 Me. 266; Huntington v. Gault, 81 Mich. 144; S. C., 45 N. W. Rep. 970; Baldwin v. Weed, 17 Wend. 224; Davenport v. Lynch, 6 Jones N. C. L. 545; Ash v. Marlow, 20 Ohio, 119; Walter v. Sample, 25 Pa. 275; Fisher v. Forrester, 33' Pa. 501; Emerson v. Cochran, in Pa. 619; Leahey v. March, 155 Pa. 458; S. C., 32 W. N. C. 292; 26 Atl. Rep. 701 ; Hall v. Hawkins, 5 Humph. (Tenn.) 357 ; Kendrick v. Cypert, 10 Humph. (Tenn.) 291; Forbes o. Hagman, 75 Va. 168 ; Sherbum v. Rodman, 51 Wis. 474; Palmer v. Broder, 78 Wis. 483 ; S. C., 47 N. W. Rep. 744. It is therefore not enough to merely prove the consultation with the attorney; the facts laid before him must also be proved: Aldridge v. Churchill, 28 Ind. 62 ; Porter v. Knight, 63 lowa, 365; Blunt v. Little, 3 Mason, 102.
A suppression of material facts will render the defendant liable. “Any evasion or concealment by a prosecutor in his statement of case to his counsel, or any failure on his part to
make a full disclosure of all the facts within his knowledge concerning it, will deprive him of the protection which advice founded upon an honest, fair and full presentation of the case assords. An incomplete and unfair statement warrants an interence that the advice was sought as "a mere cover for the prosecution, and an opinion based on such statement is an unsatisfactory reply to evidence of malice and want of probable cause :" Barhight v. Tammany (Pa.), 28 Atl. Rep., 135; Galloway ». Stewart, 49 Ind. 156; Stevens v. Fassett, 27 Me. 266; Willard v. Holmes, 21 N. Y. Suppl. 998; S. C., 2 Misc. Rep. 303. Thus, defendant is liable if he fail to state that property taken by plaintiff was taken openly and under a claim of right: Roy v. Goings, 112 III. 656; that the plaintiff requested him to examine the property alleged to have been stolen, and that he refused : Norrell v. Vogel, 39 Minn. 107; S. C., 38 N. W. Rep. 705 ; or that there arc facts tending to exculpate the plaintiff: Jessup v. Whitehcad (Colo.), 29 Pac. Rep. 916. The defendant will not be cxoncrated if he so cxaggerate the facts as to mislead the attorney: Flora v. Russell (Ind.), the principal case, 37 N. E. Rep. 593. It is competent to ask the attorney, as an expert, whether or not, if the facts stated had been different in a specificd particular from those stated by defendant, he would have given the advice he did: Paddock v. Watts, 116 Ind. 136; S. C., 18 N. E. Rep. 518.
The defendant, however, is not bound to disclosc all the facts in the case, but only those which he knows, or might have ascertained by reasonable diligence: Motcs v. Bates, 80 Ala. 382; Wicker ». Hotchkiss, 62 III. 107; Manning v. Finn, 23 Neb. 511; R. R. v. Hunt, 59 Vt. 294. But a failure to state facts exculpatory of plaintiff, which the desendant might have known by the slightest inquiry of persons associated with himself in the transaction complained of, he being in possession of information which would have put a prudent man on inquiry respecting those facts, will make him liable: Jessup v. Whitehead (Colo.), 29 'Pac. Rep. 916. II, however, the reputation of his informants for veracity is bad, a failure to make inquiry about the latter will not remove the
defendant from the protection of the rule, when there were no known facts to arousc suspicion as to the truth of their statements: Jordan 7'. R. R., 81 Ala. 220; S. C., 8 So. Rep. 191. The facts which the defendant is obliged to disclose are only those which a man of ordinary intelligence is bound to know are material: Peterson a'. Toner, 80 Mich. 350; S.C., 45 N. W. Rep. 346.
IV. The prosecution must also be carried on in good faith, after the advice has been given: Wells v. Noyes, 12 Pick. 324; Cole v. Curtis, 16 Minn. 182; Ravenga v. Mackintosh, 2 B. & C. 693. A prosecution to force collection of a debt is not in good faith : Neufeld 2. Rodeminiski (III.), 32 N. E. Rep. 913; nor is caused by passion and a desire to injure the plaintiff: Fugate 0. Miller, 109 Mo. 281; S. C., 19 S. W. Rep. 71; Sharpe v. Johnston, 76 Mo. 660; nor if thc defendant did not in fact believe the plaintiff guilty: Center v. Spring, 2 Iowa, 393 : Johnson ». Miller, 82 lowa, 693; nor had reason to believe him so: Brewer v. Jacobs, 22 Fed. Rep. 217.
V. The defendant, if he acts in good faith, is not liable for thc crror of the attorney in advising the prosecution : Stone v. Swift, 4 Pick. 389; Wells v. Noyes, 12 Pick. 324; Hall v. Suydam, 6 Barb. (N. Y.) 83 ; Walter v. Sample, 25 Pa. 275; Richardson v. Virtue, 72 Hun (N. Y.) 208. But see Hewlett v. Cruchlcy. 5 Taunt. 277; and Hall v. Hawkins, 5 Humph. 357.
VI. There has been much dispute as to the proper application of the evidence of advice. Some authoritics hold that it goes to the question of malice only: Brewer v'. Jacobs, 22 Fed. Rep. 217; Wright'v. Hanna, 98 Ind. 217; Ramsey v. Arrott, 64 Tex. 320. Others claim that it relates only to probable cause: Genevey v. Edwards (Minn.), 56 N. W. Rep. 578; Sharpe v. Johnson, 59 Mo. 557; Hall v. Kehoe, 8 N. Y. Suppl. 176. The better opinion, however, is that which makes advice evidence of both want of malice and the existence of probable cause : Wilkinson v. Arnold, 11 Ind. 45 ; Smith 0. Zent, 59 Ind. 362; McCarthy v. Kitchen, 59 Ind. 500; Gould v. Gardner, 8 La. An.. 11; Phillips v. Bonham, 16 La An. 387; Monaghan v. Cox, 155 Mass. 487; S. C., 30 N. E
Rep. 467; Thurston v. Wright, 77 Mich. 96; Shannon . Jones, 76 Tex. 141; S. C., 13 S. W. Rep. 477 ; Hurlbut i'. Boaz (Tex.), 23 S. W. Rep. 446. The question of the effect of this evidence is solely for the jury: Smith v. Walter, 125 P'a. 453 ; S. C., 23 W. N. C., 538; 17 Atl. Rep. 466.
VII. The whole subjcct is very well summed in the following extract from the opinion of the court in Stevens v. Fassett, 27 Me. 266, 283: “If a person with an honest wish to ascertain whether certain facts will authorize a suit or a criminal prosccution, lays all such facts before onc Icarned in the law, and solicits his deliberate opinion thercon, and the advice obtained is favorable to the suit or prosecution, which is thereupon commenced, it will certainly go far, in the absence of other facts, to show probable cause, and to ncgative malice. But if it appears that he withheld material facts, within his knowledge, or which, in the exercise of common prudence, he might have known; or if it appears that he was influenced by passion or a desire to injure the other party, and especially if he received from another, learned in the law, whose counsel he sought, advice of a contrary character upon the same question, the opinion which he invokes in defence, ought not to avail him, and it is well understood that it cannot be a protection."
(For a collection of cases on this subject, see 14 Am. & Eng. Enc. of Law, 52, etc.)
R. D. S.
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