to act with the same impartiality and absence of prejudice in drawing his conclusions as to the guilt of the [*183] accused that a person entirely disinterested would deli

berately do, any more than a person assaulted could be expected to judge of his danger with the like coolness and impartiality.' And all that can be required of him is that he shall act as a reasonable and prudent man would be likely to act under like circumstances.'

The test of probable cause is to be applied as of the time when the action complained of was taken; and if upon the facts then known the party had no probable cause for action, it will be no protection to him that facts came to his knowledge afterwards that might have constituted a justification had he been aware of them. Neither is he justified if he knew the facts, but did not believe them.

Advice of Counsel. It may perhaps turn out that the complainant, instead of relying upon his own judgment, has taken the advice of counsel learned in the law and acted upon that. This should be safer and more reliable than his own judgment,

Brown, 28 Iowa, 37; S. C. 4 Am. Rep. 151; Gallaway v. Burr, 32 Mich. 332; Gee. Patterson, 63 Me. 49. There should be such a state of facts and circumstances as would induce men of ordinary prudence and conscience to believe the charge to be true. Driggs . Burton, 44 Vt. 124. See, further, Stone v. Stevens, 12 Conn. 219; Jacks v. Stimpson, 13 Ill. 791; Lawrence . Lanning, 4 Ind. 194; Bank of British N. A. v. Strong, 1 App. Cas., Priv. Coun. 307; S. C. 16 Moak, 24; Hicks v. Faulkner, L. R. 8 Q. B. D. 167; Johns v. Marsh, 52 Md. 323; Johnson v. Miller, 69 Ia. 562; Jordan . Ala. &c. R. R. Co., 81 Ala. 220; Forbes v. Hagman, 75 Va. 168; Casey . Sevatson, 30 Minn. 516; Spalding. Lowe, 56 Mich. 366; Chapman v. Dunn, Id. 31; King v. Colvin, 11 R. I. 582; Planter's Ins. Co. v. Williams, 60 Miss. 916; Krulevitz . Eastern R. R., 140 Mass. 573;

Vansickle . Brown, 68 Mo. 627; Dwain v. Discalso, 66 Cal. 415; Bitting v. Ten Eyck, 82 Ind, 421.

1 Cole v. Curtis, 16 Minn. 182. Carter v. Sutherland, 52 Mich. 597. * Bourne v. Stout, 62 Ill. 261.

Delegal v. Highley, 3 Bing. (N.C.) 950; Bell v. Pearcy, 5 Ired. 83; Johnson v. Chambers, 10 Ired. (N. C.) L. 287; Galloway v. Stewart, 49 Ind. 156; S. C. 19 Am. Rep. 677; Skidmore . Bricker, 77 Ill. 164; Josselyn v. McAllister, 25 Mich 45; Foshay v. Ferguson, 2 Denio, 617. See Sims v. M'Lendon, 3 Strob. 557.

4 See cases cited in last note; also Bigelow, Lead. Cas. on Torts, 198, 200. Although suspicious circumstances may seem to afford probable cause the prosecutor is liable if he knows the accused is innocent, or does not believe him guilty. Woodworth v. Mills, 61 Wis. 44; Plummer v. Johnson, 35 N. W. Rep. 334 (Wis.)

not only because it is the advice of one who can view the facts calmly and dispassionately, but because he is capable of judging of the facts in their legal bearings. A prudent man is therefore expected to take such advice; and when he does so and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair, and not to have with

held any of the material facts. But the advice must be [*184] that of *a person accepted and licensed by the courts as

one learned in the law and competent to be adviser to clients and to the court; and if one chooses to accept and rely upon the opinion and advice of a justice of the peace or other layman, he may do so in aid of his own judgment, but it cannot

'Ravenga o. Mackintosh, 2 B. & C. 693; Stone v. Swift, 4 Pick. 389; Walter v. Sample, 25 Penn. St. 275; Hall v. Suydam, 6 Barb. 83; Olmstead v. Partridge, 16 Gray, 381; Ames v. Snider, 69 Ill. 376; Wicker v. Hotchkiss, 62 Ill. 107; S. C. 14 Am. Rep. 75; Burgett v. Burgett, 43 Ind. 78; Stewart v. Sonneborn, 98 U. S. 187; St. Johnsbury, &c. Co. v. Hunt, 59 Vt. 294; Sharpe o. Johnston, 76 Mo. 660; Jones v. Jones, 71 Cal. 89; Allen v. Codman, 139 Mass. 136; Jordan v. Ala., &c. R. R. Co., 81 Ala. 220. But it is also held that such advice bears on the question of malice, not probable cause. Wright v. Hanna, 98 Ind. 217; Brewer v. Jacobs, 22 Fed. Rep. 217; Lemay v. Williams, 32 Ark. 166; Ramsey v. Arrott, 64 Tex. 320.

2 Ash v. Marlow, 20 Ohio, 119; Walter v. Sample, 25 Penn. St. 275; Kimmel v. Henry, 64 Ill. 505; Sharp v. Johnston, 59 Mo. 557; Cooper v. Utterbach, 37 Md. 282; Bliss v. Wyman, 7 Cal. 257; Anderson v. Friend, 85 Ill. 135; Mesher v. Iddings, 34 N. W. Rep. 328 (Ia.); Wild v. Odell, 56 Cal. 136. In Ravenga o. Mackintosh, 2 Barn. & Cress. 692, 698, it is said to be "a question for the jury whether he acted bone fide on the opin

ion, believing that he had a cause of action." And on this point, see Ross v. Innis, 26 Ill. 259, 279; Center v. Spring, 2 Iowa, 393; Eastman v. Keasor, 44 N. H. 518; Potter v. Seale, 8 Cal. 217; Josselyn v. McAllister, 22 Mich. 300; Williams v. Vanmeter, 8 Mo. 339; Hill v. Palm, 38 Mo. 13. The mere fact of getting advice is not conclusive in favor of the defendant. Lytton v. Baird, 95 Ind. 349; Hogg . Pinckney, 16 S. C. 387; Lemay . Williams, 32 Ark, 166; Ramsey v. Arrott, 64 Tex. 320. The advice must be honestly given and acted on in good faith. Allen . Codman, 139 Mass. 136; Jordan v. Ala. &c. R. R. Co., 81 Ala. 220; Parkhurst v. Masteller, 57 Ia. 474; Roy v. Goings, 112 Ill. 656. No protection if sought as a means of covering malice. McCarthy v. Kitchen, 59 Ind. 500. The attorney must not be interested in the subject matter. White v. Carr, 71 Me. 555. All facts known, or which could, with reasonable diligence, have been ascertained, must be disclosed. Motes v. Bates, 80 Ala. 382; Roy v. Goings, 112 Ill. 656; White . Carr, 71 Me. 555. Enough, if disclosure is of all facts known. Johnson v. Miller, 69 Ia. 562.

afford him any protection.

Moreover, when he places himself

under the guidance of counsel, if facts subsequently come to his knowledge which seem to be important, it is his duty to communicate these to counsel, if he expects to rely upon his advice as a justification in the steps subsequently taken."

Proof of Want of Probable Cause. The burden of proof to show a want of probable cause is upon the plaintiff. In other words, the want of probable cause will not be inferred from the mere failure of the prosecution. Nor does malice establish a want of probable cause, because, as is well said in one case, a person actuated by the plainest malice may nevertheless have a justifiable reason for prosecution; and, indeed, the offense itself, or the belief in its having been committed, is likely to excite malice. An acquittal and discharge by a magistrate having power to bind over, is evidence of want of probable cause, as is

'Olmstead. Partridge, 16 Gray, 381; Beal . Robeson, 8 Ired. 276; Straus . Young, 36 Md. 246; Burgett. Burgett, 43 Ind. 78; Stanton

. Hart, 27 Mich. 539; Murphy v. Larson, 77 Ill. 172; Sutton v. McConnell, 46 Wis. 269; Brobst v. Ruff, 100 Penn. St. 91; Gee v. Culver, 12 Oreg. 228; Colbert v. Hicks, 5 Ont. App. 571; McCullough v. Rice, 59 Ind. 580; Coleman . Heurich, 2 Mackey 189; Stewart . Sonneborn, 98 U. S. 187.

Cole . Curtis, 16 Minn. 182; Ash . Marlow, 20 Ohio, 119.

See on the burden of proof, Abrath ⚫. Northeastern Ry Co. L. R. 11 Q. B. D. 440; Legallee v. Blaisdell, 134 Mass. 473; McFarland o. Washburn, 14 Ill. App. 369; Sutton . Anderson, 103 Penn. St. 151; Bernar v. Dunlap, 94 Penn. St. 329. As to what is evidence of want of probable cause, Krulevitz e. Eastern R. R., 143 Mass. 228.

Boyd . Cross, 35 Md. 194, and

5

cases cited; Good . French, 115 Mass. 201; Levy v. Brannan, 39 Cal. 485; Wilkinson v. Arnold, 11 Ind. 45; Frost v. Holland,75 Me. 108; Andersou v. Friend, 85 Ill. 135.

5 TINDALL, Ch. J., in Williams v. Taylor, 6 Bing. 183, 186. And, see, Heyne v. Blair, 62 N. Y. 19, 22; Foshay v. Ferguson, 2 Denio, 617; Skidmore v. Bricker, 77 Ill. 164; Krug v. Ward, 77 Ill. 603; Chapman v. Caw. rey, 50 Ill. 512; Caperson v. Sproule, 39 Mo. 39; Hall v. Hawkins, 5 Humph. 357; Bell v. Pearcy, 5 Ired. 83; Center v. Spring, 2 Clarke (Iowa), 393; Cloon v. Gerry, 13 Gray, 201; Kidder v. Parkhurst, 3 Allen, 393; Wade v. Walden, 23 Ill. 425; Travis v. Smith, 1 Penn. St. 234; Stewart v. Sonneborn, 98 U. S. 187; Sharpe v. Johnston, 76 Mo. 660; Flickinger v. Wagner, 46 Md. 580; Bitting v. TenEyck, 82 Ind. 421; Meysenberg v. Engelke, 18 Mo. App. 346.

the ignoring of a bill by a grand jury.' But neither of these is conclusive.'

[*185] *If the defendant is convicted in the first instance and appeals, and is acquitted in the appellate court, the con

viction below is conclusive of probable cause."

Malice. The burden of proving that the prosecution was malicious is also upon the plaintiff. If a want of probable cause is shown, malice may be inferred; but the deduction is not a necessary one, and the mere discontinuance of a criminal prosecu

tion, or the acquittal of the accused, will establish for the purposes of this suit neither malice nor want of probable cause.' But if an arrest is made in a civil suit which is afterward voluntarily discontinued, the discontinuance has been held to furnish prima facie evidence of a want of probable cause. Legal malice is made out by showing that the proceeding was instituted from any improper or wrongful motive, and it is not essential that actual malevolence or corrupt design be shown. Sometimes the accompanying circumstances show the bad motive very clearly, as for instance, where an arrest on an unfounded criminal charge was made use of to compel the surrender of securities to which both parties were equally entitled. This is a sort of malice suffi- . ciently common to need special mention.

*What is an end of the Proceeding. The termination [*186] of the proceeding must, in general, be by a final acquit

tal. It is not enough that the parties in a case which they might

Ebberts, 6 Sawy. 538; Murphy v. Hobbs, 7 Cal. 541; Casebeer v. Rice, 18 Neb. 203.

'Willans . Taylor, 6 Bing. 183; Yocum. Polly, 1 B. Mon. 358; Skidmore. Bricker, 77 Ill. 164; Kidder . Parkhurst, 3 Allen, 393; Bitting Ten Eyck, 82 Ind. 421, and cases p. 213 n. 5; Spear v. Hiles, 67 Wis. 350; Hamilton . Smith, 39 Mich. 222; Johns . Marsh, 52 Md. 323; Jordan

. Ala., etc., Co., 81 Ala. 220; Gee v. Culver, 13 Oreg. 598. Mere ill-will without an act intended to injure is not malice. Peck. Chouteau, 91 Mo. 138.

Burhans . Sanford, 19 Wend. 417; Nicholson v. Coghill, 4 B. & C. 21; Green . Cochran, 43 Iowa, 544. Page v. Cushing, 38 Me. 523; Barron . Mason, 31 Vt. 189; Harpham . Whitney, 77 Ill. 32. The jury are the exclusive judges of malice. Munns v. Dupont, 3 Wash. C. C. 31; Center . Spring, 2 Clarke (Iowa), 393; Mitchel v. Jenkins, 5 B. & A. 587; Stewart v. Sonneborn, 98 U. S. 187; Vinal v. Core, 18 W. Va. 1;

Bartlett v. Hawley, 37 N, W. Rep. 580 (Minn). But whether the facts found are such as to warrant the inference of malice is for the court. Sharpe

. Johnston, 76 Mo. 660. When the court holds that there is a want of probable cause there is evidence of malice for the jury. When such want is the only evidence of malice the jury are not bound by the holding of the court to find malice. As evidence of malice the question of probable cause is wholly for the jury. Hicks . Faulkner, L. R. 8 Q. B. D. 167; Quartz Hill Co., v. Eyre, L. R. 11 Q. B. D. 674.

Kimball v. Bates, 50 Me. 308. See Willans v. Taylor, 6 Bing. 183; Brown v. Randall, 36 Conn. 56; Krug v. Ward, 77 Ill. 603; Prough v. Entriken, 11 Penn. St. 81; Schmidt v. Weidman, 63 Penn. St. 173. Or to enforce payment of a debt. Ross v. Langworthy, 13 Neb. 492.

5 Bacon v. Towne, 4 Cush. 217; Boyd v. Cross, 35 Md. 194; Kirkpatrick v. Kirkpatrick, 39 Penn. St. 288; Williams v. Woodhouse, 3 Dev. (N.