without authority of law, he will be entitled to recover in an action of trespass, no matter what may have been the officer's motive. In such a case, probable cause that the plaintiff was guilty of a misdemeanor or violation of an ordinance, and absence of malice on the part of the officer, will afford no justification.1

1 Shanley v. Wells, 71 Ill., 78 (1873).

CHAPTER VIII.

ADVICE OF COUNSEL IN ACTIONS FOR MALICIOUS PROSECU TION AND FALSE IMPRISONMENT.

I. IN MALICIOUS PROSECUTION.

§ 1. The authorities not entirely uniform.

2. The general rule.

3. The law stated by Walker, J.

Applications of the law.

(1) Advice of the commonwealth attorney.
(2) Advice of different attorneys.

(3) Advice of counsel as a defense.

4. Advice of an attorney interested in the suit.

7. Honest prosecutor protected - Matter of public policy. The rule illustrated.

Prosecutor relying upon statements of persons, etc."

8. Duty of party seeking advice of counsel.

9.

10.

Applications of the rule.

(1) Did not lay all the facts before the counsel.

(2) Did not state all the material facts to the advising counsel.

(3) Advice of state's attorney.

Advice of officers - Policemen, detectives, etc.

Effect of the advice of persons not attorneys.
Applications of the rule.

Advice of a person not a lawyer.

11. Good faith, independent of legal advice.

II. IN FALSE IMPRISONMENT.

12. The advice of counsel in actions for false imprisonment.

An application of the rule.

Advice of an inexperienced attorney sufficient.

I. IN ACTIONS FOR MALICIOUS PROSECUTION.

§ 1. Authorities not entirely uniform.- The authorities are not entirely uniform as to how far or in what manner the advice of counsel constitutes a defense to an action for mali

cious prosecution. A long line of cases holds that it is proof of probable cause; other authorities maintain that it is evidence of the absence of malice; while others, and probably the majority of cases, refer to it as proof of both the absence of malice and the presence of probable cause.3

§ 2. The general rule.- The general rule seems to be that where a party has communicated to his counsel all the facts bearing on the case of which he has knowledge, or could have ascertained by reasonable diligence and inquiry, and has acted upon the advice received, honestly and in good faith, the absence of malice is established, the want of probable cause is negatived, and the action for malicious prosecution will not lie.1

3. The law stated by Walker, J.- The general rule, long and uniformly recognized, in this class of defenses requires a person to make a full, fair and honest statement of all the material circumstances of the supposed guilt which are within his knowledge, or which he could learn by ordinary care, to a respectable attorney in good standing, and act on his advice. "To protect himself he must make a full statement of all material facts. He will not be protected if he makes a garbled and untrue statement. Human liberty is too sacred to be recklessly invaded to gratify malice, or for the advancement of personal interest. The law will not tolerate such nefarious purposes or reckless disregard of the liberty of the citizen." 1

(1) A person acting under advice of commonwealth attorney, although actuated by malice, not liable for a malicious prosecution.

Polly sued Yocum for a malicious prosecution upon a charge of being present, aiding and assisting in the murder of Preston Coulter, upon which he was arrested, imprisoned, and remained in prison until he was brought before the justices and put upon his trial, and the evidence having been heard the prosecution was dismissed by the commonwealth. On the trial of the case the evidence tended to show that any agency which Yocum may have had in the prosecution, so far as Polly was concerned, was wholly in subordination to the attorney for the commonwealth; that Yocum and his friends had determined to prosecute the actual homicide alone, unless upon the evidence on his trial it should appear that Polly and others of his party who were present ought to be prosecuted, and that he would not have been prosecuted had not the attorney for the commonwealth, upon information not derived from the defendant, directed a constable, who was acting in the business, to procure the warrant. A judgment was entered for the plaintiff and the defendant appealed.

In delivering the opinion of the court, Marshall, J., after reviewing the facts, said: "If this be so, we are well satisfied that, whatever malice the defendant may have had against the plaintiff, he cannot be liable for a prosecution instituted by the immediate direction of the public attorney, and in which he did nothing but in subordination to that officer and to effectuate his directions. If, being, as he (the defendant) was, a justice of the peace, he had, on being informed by the constable of the attorney's directions, actually issued the warrant, this would not have implicated him; and much less, as we suppose, was he implicated by merely writing the body of the warrant, as requested, when neither the constable nor the other

Ann., 672 (1960); Bartlett v. Brown, 6 R. I., 37 (1859); Davenport v. Lynch, 6 Jones (N. C.), 545 (1859).

1 Roy v. Goings, 112 Ill., 656 (1885); Anderson v. Friend, 85 Ill., 135 (1877).

justice who was applied to was able to make it out without a form; and it makes no difference if he, in conjunction with the constable, applied to the other justice for the warrant which had been directed by the attorney. As to any subsequent agency which he may have had, nothing appears, except that he was used and consulted with by the prosecuting attorney as a near friend and relative of the deceased, not instituting the prosecution, so far as the plaintiff was concerned, nor officiously interfering to carry out even the directions of the attorney. If these inferences of fact, which the evidence conduces to establish, are just, surely the opinions and directions of the attorney for the commonwealth, founded on information aot derived from the defendant, must have the effect of protecting him from such liability for such an agency as is here supposed." The judgment is reversed. Yocum v. Polly, 1 B. Mon., 358; 36 Am. Dec., 583 (1841). See Thompson v. Lumley, 50 Abb. Pr., 105 (1871).

(2) Advice of counsel. The county attorney advised against the prosecution. Another attorney advised in favor of it. The finding of the jury conclusive on the question of good faith.

There was a controversy over the ownership of a team of horses which had been delivered to Bartlett by Hawley on a contract of sale, and Bartlett claimed the right to hold them. A small part of the purchase-money had been paid. Hawley discharged Bartlett, who was in his employ, and there was a dispute about the right to hold the horses. Hawley took them out of Bartlett's possession by force, and there was a bitter feeling between them. Immediately afterwards Bartlett went to Hawley's barn and took out the horses and put them in a neighbor's barn. Hawley then went to the county attorney and laid the case before him, but was advised that there was no ground upon which to base a criminal charge of larceny. Not satisfied with this advice, he went to another attorney, who advised him to have Bartlett arrested for breaking and entering the barn and for taking the horses. Hawley then went to a magistrate, made a complaint and procured a warrant, upon which Bartlett was arrested for taking the horses. Upon a trial he was discharged. He then brought an action against Hawley for a malicious prosecution. At the trial the jury found for the defendant and the plaintiff appealed.

Vandenburg, J., in affirming the judgment, said: "Upon the evidence, though we think the case not free from doubt, and we sustain the trial court with some hesitation, the question of malice was for the jury; and if we concede that a prima facie case was made by the plaintiff's evidence requiring evidence in rebuttal or explanation, yet we cannot say that the evidence on the part of the defendant in respect to the advice of counsel and his reliance thereon, though subject to criticism before the jury, was not proper to be submitted to them on the question of his good faith. He was not obliged to consult the county attorney, and he might act in good faith in following the advice of other counsel in opposition to his. It is a circumstance to be very carefully considered, upon the question of defendant's good faith; for if the advice he received did not induce an honest belief that he had probable cause, and that the plaintiff was guilty of larceny, it would afford him no legal protection. He admitted, indeed, in his