Skidmore v. Bricker, 77 Ill. 164; Fadner v. Filer, 27 Ill. 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 v. Iddings, 72 Iowa, 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. Jones, 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 case, or he will still be liable: Guthbert v. Galloway, 35 Fed. Rep. 466; Blunt v. Little, 3 Mason, 102; Bliss v. Wyman, 7 Cal. 257; Potter v. Scale, 8 Cal. 217; Aldridge v. Churc hill, 28 Ind. 62; Scotten v. Longfellow, 40 Ind. 23; Paddock v. Watts, 116 Ind. 146; S. C., 18 N. E. Rep. 518; Lcgan 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 v. 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, 111 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 v. Hagman, 75 Va. 168; Sherburn 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 Iowa, 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 affords. An incomplete and unfair statement warrants an inference 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 v. 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 Ill. 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 are facts tending to exculpate the plaintiff: Jessup v. Whitehead (Colo.), 29 Pac. Rep. 916. The defendant will not be exonerated if he so exaggerate 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 specified 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 disclose 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 v. Hotchkiss, 62 Ill. 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 defendant 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. If, 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 arouse suspicion as to the truth of their statements: Jordan v. 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 v. 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 . 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 v. Rodeminiski (III.), 32 N. E. Rep. 913; nor if caused by passion and a desire to injure the plaintiff: Fugate v. Miller, 109 Mo. 281; S. C., 19 S. W. Rep. 71; Sharpe v. Johnston, 76 Mo. 660; nor if the defendant did not in fact believe the plaintiff guilty: Center v. Spring, 2 Iowa, 393; Johnson v. Miller, 82 Iowa, 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 the error 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. Cruchley, 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 authorities 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 v. 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 7. Jones, 76 Tex. 141; S. C., 13 S. W. Rep. 477; Hurlbut ". Boaz (Tex.), 23 S. W. Rep. 446. The question of the effect of this evidence is solely for the jury: Smith v. Walter, 125 Pa. 453; S. C., 23 W. N. C., 538; 17 Atl. Rep. 466.

VII. The whole subject 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 prosecution, lays all such facts before one learned in the law, and solicits his deliberate opinion thereon, 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 negative 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.

BOOKS RECEIVED.

[All legal works received before the first of the month will be reviewed in the issue of the month following. Books should be sent to William Draper Lewis, Esq., 738 Drexel Building, Philadelphia, Pa.)

THE LAW RELATING TO REAL ESTATE BROKERS, as decided by the
American Courts. By STEWART RAPALJE. New York: Baker,
Voorhis & Co., 1893.

DIGEST OF INSURANCE CASES, for the year ending October 31, 1893.
By JOHN FINCH. Indianapolis: The Rough Notes Co., 1893.
CASES ON CONSTITUTIONAL LAW, with Notes. Part II. By JAMES
BRADLEY THAYER, LL.D. Cambridge: Charles W. Sever, 1894.
American Railroad and Corporation Reports, being a Collection

of the Decisions of the Courts of Last Resort in the United States pertaining to the Law of Railroads, Private and Municipal Corporations, including the Law of Insurance, Banking, Carriers, Telegraph and Telephone Companies, Building and Loan Associations, etc. Edited and annotated by JOHN LEWIS. Vol. VII. Chicago: E. B. Myers & Co., 1893.

THE BANKING QUESTION IN the United States, Report of the meeting held on January 12, 1893, under the auspices of the American Academy of Political and Social Science. Addresses by HORACE WHITE, MICHAEL D. HartER, A. B. HEPBURN, J. H. WALKER, HENRY BACON and W. L. TRENHOLM. Philadelphia: American Academy of Political and Social Science, 1894.

THE LAW OF PLEADING UNDER THE CODES OF CIVIL PROCEDURE. By EDWIN E. BRYANT. Boston: Little, Brown & Co., 1894.

POCKET MANUAL of Rules of Order for DeliberativE ASSEMBLIES. By Lieut.-Colonel HENRY M. ROBERT. Chicago: S. C. Griggs & Co., 1894.

A MANUAL OF THE STUDY OF DOCUMENTS TO ESTABLISH THE INDIVIDUAL CHARACTER OF HANDWRITING AND TO DETECT FRAUD AND PERJURY, including Several New Methods of Research. By PERSIFOR FRAZER. Illustrated. Philadelphia: J. B. Lippincott Company, 1894.

TREATIES AND TOPICS IN AMERICAN DIPLOMACY. BY FREEMAN SNOW, Ph.D., LL.B., Harvard University. Boston: The Boston Book Company, 1894.

A TREATISE ON DISPUTED HANDWRITING and the DetERMINATION of Genuine from Forged Signatures, THE CHARACTER AND COMPOSITION OF INKS, ETC. BY WILLIAM E. HAGAN, Expert in Handwriting. New York: Banks & Brothers, 1894.