fendant," said Tindal, C. J., "instead of relying on the plea of not guilty, elects to bring the facts before the court in a plea of justification, it is obvious that he must allege as a ground of defence that which is so important in proof under the plea of not guilty, viz., that the knowledge of certain facts and circumstances which were sufficient to make him or any reasonable person believe the truth of the charge which he instituted before the magistrate existed in his mind at the time the charge was laid, and was the reason and inducement for his putting the law in motion."

In Broad v. Ham, supra, it appeared that the defendant, having in fact a prima facie ground for his charge, did not believe it at the time; and this was held some evidence of want of probable cause. "In order to justify a defendant," said the same Chief Justice, "there must be a reasonable cause, such as would operate on the mind of a discreet man; there must also be a probable cause, such as would operate on the mind of a reasonable man: at all events such as would operate on the mind of the party making the charge, otherwise there is no probable cause for him. I cannot say that the defendant acted on probable cause if the state of the facts was such as to have no effect on his mind." See also Ravenga v. Mackintosh, 2 Barn. & C. 693; Blachford v. Dod, 2 Barn. & Ad. 179; Huntley v. Simson, 2 Hurl. & N. 600; Williams v. Banks, 1 Fost. & F. 557; Haddrick v. Heslop, 12 Q. B. 267.

In Haddrick v. Heslop, supra, the plaintiff complained of a prosecution for perjury, which the defendant had instituted against him for the purpose, as the plaintiff alleged, of suppressing evidence; and it was proved that the defendant, on being told that there was

not sufficient ground for the indictment, declared it was no matter, and that it would stop the plaintiff's mouth in a proceeding in which he would be likely to give evidence against the defendant. It was held that the judge was right in asking the jury whether the prosecutor believed at the time he preferred the indictment that the defendant had really been guilty of perjury, and whether he instituted the prosecution bona fide, under such a belief, or from an improper motive.

But in some cases it has been held that the question of the defendant's liability for the prosecution depends upon the actual non-existence of probable cause; so that if there was in fact probable cause, whether he knew it or not, he cannot be liable. Mowry v. Miller, 3 Leigh, 561; Hickman v. Griffin, 6 Mo. 37; Adams v. Lisher, 3 Blackf. 241.

In Mowry v. Miller, supra, the court said: "The law requires the plaintiff in this action to set forth that the prosecution was without probable cause. But as this is merely because no man can maintain an action for a malicious prosecution where there was probable cause, it is obvious that those words should be made to refer to the state of fact as it respects the person prosecuted, and not to the degree of knowledge of that fact in the party prosecuting."

The court, in Adams v. Lisher, supra, state the ground of decision thus: “This suit is founded on a prosecution set on foot by the defendant against the plaintiff for a wrong that affects the public; and therefore the defendant stands on the footing of the most favored class of prosecutors. It was an action of trespass for cutting and carrying away, from lands belonging to the public, timber. . . . The gist of that action was the

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

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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 : "He proceeded to arrest after full notice of the irregularity of his proceedings." Lord Ellenborough: "But he was acting under what he thought was good advice. It was unfortunate that the attorney was misled by Higgins's Case; but unless you can show that the defendant was actuated by some purposed malice, the plaintiff cannot recover."

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:

Purcellv. 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,

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.