charged was guilty of the crime for which he was prosecuted. Brewer v. Jacobs, 22 Fed. Rep. 217; Walker v. Camp. (Iowa) 19 N. W. Rep. 802; Wheeler v. Nesbitt, 24 How. 544; Barron v. Mason, 31 Vt. 189.

(2) Want of Probable Cause. By a "want of probable cause " is meant an absence of rational grounds of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious and reasonable man in the belief that the person accused is guilty of the crime charged. Davie v. Wisher, 72 Ill. 262. The question of what constitutes probable cause," say the supreme court of New York, in Fagnan v. Knox, 66 N. Y. 525, "does not depend upon whether the offense has, in fact, been committed, nor whether the accused is guilty or innocent, but upon the prosecutor's belief, based upon reasonable grounds. Bacon v. Towne, 4 Cush. 238. The prosecutor may act upon appearances; and if the apparent facts are such that a discreet and prudent man would be led to the belief that the accused had committed a crime, he will not be liable in the action, although it may turn out that the accused was innocent. Carl v. Ayers, 53 N. Y. 17. If there be an honest belief of guilt, and if there exist reasonable grounds for such belief, the party will be justified. But however suspicious the appearances may be from existing circumstances, if the prosecutor has knowledge of facts which will explain the suspicious appearance, and exonerate the accused from a criminal charge, he cannot justify a prosecution by putting forth the prima facie circumstances, and excluding those within his knowledge which tend to prove innocence." In an action for damages for malicious prosecution in procuring plaintiff to be indicted for perjury, an averment in the petition which clearly and distinctly alleges that the defendant maliciously and without probable cause procured the indictment to be found sufficiently avers the want of probable cause. Hampton v. John, (Iowa,) 12 N. W. Rep. 276.

In action for malicious prosecution plaintiff must establish the want of probable cause. Dwain v. Descalso, (Cal.) 5 Pac Rep. 903. Want of probable cause will not be inferred from even express malice, Wheeler v. Nesbitt, 24 How. 544; but must be proved by plaintiff. Good v. French, 115 Mass. 201, Levy v. Brannan, 39 Cal. 485.

(3) What Amounts to. It is enough if the prosecutor acted with such a degree of impartiality, reasonableness, and freedom from prejudice as can fairly be expe ted of a man of ordinary prudence and caution, acting without malice. Casey v. Sevatson, (Minn.) 16 N. W. Rep. 407. See Cole v. Curtis, 16 Minn. 182, (Gil. 161;) Bacon v. Towne, 4 Cush. 238; McGurn v. Brackett, 33 Me. 331. It is said that if the evidence on the trial of the criminal charge is such as to cause the jury to hesitate as to an acquittal, it was evidence of probable cause. Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34, Smith v. MacDonald, 3 Esp. 7. Mere suspicions, without reasonable ground for believing them to be founded in fact, will not amount to a probable cause. Hirsch v. Feeney, 83 Ill. 548. Real belief and reasonable ground must unite to afford a justification. Farnam v. Feeley, 56 N. Y. 451. It is said that a conviction before a magistrate of assault and battery does not show probable cause for having instituted an action for assault with intent to kill. Labar v. Crane, (Mich.) 14 N. W Rep. 495.

(a) Belief of Prosecutor. Probable cause does not depend upon mere belief, however sincerely entertained The law imposes the additional requisite of such facts as would induce a reasonable man to believe the accused was guilty, and nothing short of this will justify the institution of criminal proceedings. Ross v. Langworthy, Neb.) 14 N. W. Rep. 515; Cooley, Torts, 182. Neither does it depend upon the guilt or innocence of the accused, but upon the prosecutor's belief in it at the time of prosecution, upon reasonable grounds. King v. Colvin, 11 R. I. 582; Foshay v. Ferguson, 2 Denio, 617; Burlingame v. Burlingame, 8 Cow. 141; Scanlan v. Cowley, 2 Hilt. 489; French v. Smith, 4 Vt. 363; Swaim v. Stafford, 3 Ired. 289; Johnson v. Chambers, 10 Ired. 287; Raulston v. Jackson, 1 Sneed, 128; Faris v. Starke, 3 B. Mon. 4; Delegal v. Highley, 3 Bing. (N. C.) 950; Jacks v. Stimpson, 13 Ill. 701, Wade v. Walden, 23 Ill. 425. Although the facts known make out a prima facie case of guilt, yet, if the circumstances are all consistent with the innocence of the party, and the prosecutor knows the accused is not guilty, or does not believe him to be guilty, he cannot have reasonable cause for the prosecution. Woodworth v. Mills, (Wis.) 20 N. W Rep. 728. See Turner v. Ambler, 10 Q. B. 252; Broad v. Ham, 5 Bing. (N. C.) 722; Fagan v. Knox, 1 Abb. (N C.) 246; Townsh. Sland. & Lib. 428, p. 715.

The court say, in Sherburne v. Rodman, supra, that "the intent, good faith, and honest belief of the defendant are mental conditions which can be proved only indirectly, presumptively, and inferentially by the facts and circumstances of the case; but malice, being a fact to be proved and directly in issue, since parties are allowed to be witnesses there seems to be no good reason why the party alone cannot positively and directly know and testify to such fact." See Wilson v. Noonan, 35 Wis. 321. And it has been held that an action for malicious prosecution will lie "if the defendant knew that the charge was false and unfounded, and by that means procured the plaintiff to be indicted and brought to trial, even though the charge made did not constitute the crime alleged or any crime." This seems to be the general doctrine in this country.

See Stone v. Stevens, 12 Conn. 219; Hays v. Younglove, 7 B. Mon. 545; Stancliff v. Palmeter, 18 Ind. 321; Stocking v. Howard, 24 Alb. Law J. 537; Sweet v. Negus, 30 Mich. 406; Collin v. Love, 7 Blackf. 416; Forrest v. Collier, 20 Ala. 175; Braveboy v. Cockfield, 2 McMul. 270; Gibbs v. Ames, 119 Mass. 60. Evidence of admission of defendant that he was the instigator of the prosecution, and that it was without probable cause, is competent. Woodworth v. Mills, (Wis.) 20 N. W. Rep. 728.

(b) Discharge by Justice or Ignoring by Grand Jury. It is held by some courts that where the accused was discharged by the examining magistrate, or the bill was ignored by the grand jury, such fact is evidence of want of probable cause. Sappington v. Watson, 50 Mo. 83. But the better, as well as the more general, doctrine is that a justice's finding is not final as to probable cause. Spalding v. Lowe, (Mich.) 23 N. W. Rep. 46. It has been said that an entry made in his docket by a justice of the peace before whom a criminal cause was tried, declaring the suit instituted maliciously and without probable cause, is not admissible in action for malicious prosecution. Casey v. Sevatson, (Minn.) 16 N. W. Rep. 407. See Granger v. Warrington, 3 Gilman, 299.

(c) Discharge by Nolle Prosequi, etc. It has been said that a discharge from the prosecution by a nolle prosequi is not prima facie evidence of want of probable cause, Yocum v. Polly, 1 B. Mon. 358, Flickinger v. Wagner, 46 Md. 580; but it is held that dismissing an action voluntarily is prima facie evidence of want of probable cause. Wetmore v. Mellinger, (Iowa,) 14 N. W. Rep. 722; Green v. Cochran, 43 Iowa, 544; Burhans v. Sandford, 19 Wend. 417.

(d) Finding True Bill" by Grand Jury. It is said that the finding of a "true bill" or indictment by a grand jury is prima facie evidence of probable cause, Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34; Garrard v. Willet, 4 J. J. Marsh. 628; although such prosecution may have resulted in an acquittal. Id. It is said that an action for malicious prosecution may be founded on an indictment whereon no acquittal can be had because coram non judice, insufficiently drawn, or the like; for it is not the danger of the plaintiff, but the scandal, vexation, and expense upon which the action is founded. Castro v. De Uriarte, 12 Fed. Rep. 250. See Goslin v. Wilcock, 2 Wils. 302; West v. Smallwood, 3 Mees. & W. 418; Wicks v. Fentham, 4 Term. R. 247; Pippet v. Hearn, 5 Barn. & Ald. 634; 3 Bl. Comm. 127.

(e) Conviction by Court of Competent Jurisdiction. Conviction of a party charged with a crime is not conclusive in an action for malicious prosecution, upon the question of probable cause for prosecution; but may be rebutted by proof that the same was prosecuted by false and malicious testimony. Bowman v. Brown, (Iowa,) 3 N. W. Rep. 609; Moffatt v. Fisher, 47 Iowa, 473. And it is held that a conviction before a justice of the peace is only prima facie evidence of probable cause. Bowman v. Brown, (Iowa,) 3 N. W. Rep. 609; Olson v. Neal, (Iowa,) 18 N. W. Rep. 863. See Ritchey v. Davis, 11 Iowa, 124; Moffatt v. Fisher, 47 Iowa, 473; 2 Greenl. Ev. 457.

Yet it has been held that the judgment of a court of competent jurisdiction finding the accused guilty is conclusive evidence of probable cause, Whitney v. Peckham, 15 Mass. 243; Cloon v. Gerry, 13 Gray, 203; Dennehey v. Woodsum, 100 Mass. 197; but to bring the case within this rule the justice must have acted judicially and not ministerially, and the result have been reached without artifice, fraud, or collusion. Com. v. Davis, 11 Pick. 432; Kaye v. Kean, 18 B. Mon. 839; Herman v. Brookerhoff, 8 Watts, 240. In other cases it is held only to be prima facie evidence when reversed on appeal. Goodrich v. Warner, 21 Conn. 432; Womack v. Circle, 29 Grat. 192. See Burt v. Place, 4 Wend. 591.

And it has been held that a conviction before a justice of the peace on a criminal charge, although there was an acquittal upon appeal, is conclusive evidence of probable cause. Whitney v. Peckham, 15 Mass. 243; Witham v. Gowen, 14 Me. 362. But it is said in Bacon v. Towne, 4 Cush. 217, the authority of the first case has been doubted in Burt v. Place, 4 Wend. 591, and that if the conviction before the justice is regarded "as evidence of probable cause, we think it is prima facie only, and not conclusive." This is the doctrine in Iowa. Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34; Moffatt v. Fisher, 47 Iowa, 473. But it is said by the supreme court of Michigan, in Phillips v. Village of Kalamazoo, 18 N. W. Rep. 547, that, as a rule, a conviction before a magistrate, even though reversed on appeal, is a bar to a suit for malicious prosecution. See Cooley, Torts, 185.

(f) Mixed Question of Law and Fact. What constitutes probable cause is a mixed question of fact and law. Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34; Gee v. Culver, (Or.) 6 Pac. Rep. 775; Murray v. McLane, 5 Hall, Law J. 515; Nash v. Orr, 3 Brev. 94; Stone v. Crocker, 24 Pick. 81; Travis v. Smith, 1 Pa. St. 234; Hill v. Palm, 38 Mo. 18; Cole v. Curtis, 16 Minn. 182, (Gil. 161;) Driggs v. Burton, 44 Vt. 124. It is for the jury to say what facts are proved, and it is for the court to say whether those facts constitute probable cause. Ross v. Langworthy, (Neb.) 14 N. W. Rep. 515; Turner v. O'Brien, 5 Neb. 547; Johns v. Marsh, 9 Rep. 143: Boyd v. Cross, 35 Md. 194. Thus, it is said that the question of probable cause is one of law for the court, Parli v. Reed, (Kan.) 2 Pac. Rep.

635, and the question of malice is for the jury. Parli v. Reed, (Kan.) 2 Pac. Rep. 635; Malone v. Murphy, 2 Kan. 250. What is probable cause is a question of law, to be determined from the facts as found by the jury. Eastin v. Bank of Stockton, (Cal.) 4 Pac. Rep. 1106.

(4) Practice. The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show it probable are true and existed, is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law. It is therefore generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not. Castro v. De Uriarte, 16 Fed. Rep. 93; Stewart v. Sonneborn, 98 U. S. 187; Heyne v. Blair, 62 N. Y. 19; Sutton v. Johnstone, Term R. 493. It is said that the court should group the facts together in the instructions which the evidence tends to prove, and then instruct the jury, if they find such facts have been established, they must find there was or was not probable cause. Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34; Owen v. Owen, 22 Iowa, 271; Shaul v. Brown, 28 Iowa, 37; Gee v. Culver, (Or.) 6 Pac. Rep. 775; Haddrick v. Heslop, 12 Q. B. 275. And where facts are undisputed, the court should instruct the jury that there was or was not probable cause. Fulton v. Onesti, (Cal.) 6 Pac. Rep. 491; Harkrader v. Moore, 44 Cal. 152; Brewer v. Jacobs, 22 Fed. Rep. 217; Castro v. De Uriarte, 16 Fed Rep. 93; Commissioners v. Clark, 94 U. S. 278, 284; Parli v. Reed, (Kan.) 2 Pac. Rep. 635; Besson v. Southard, 10 N. Y. 240; Stone v. Crocker, 24 Pick. 81; Travis v. Smith, 1 Pa. St. 234; Hill v. Palm, 38 Mo. 13; Wells v. Parsons, 3 Har. (Del.) 505: Wells, Law & Fact, 291. (5) Intent. Where intent or motive is involved in the issue, the person to whom such intent or motive is imputed is a competent witness, unless rendered incompetent by some statutory inability. Spalding v. Lowe, (Mich.) 23 N. W. Rep. 46; Watkins v. Wallace, 19 Mich. 57. In an action for malicious prosecution and false arrest, the defendant may prove the bad reputation of the plaintiff to rebut the want of probable cause. Rosenkranz v. Barker, (Ill.) 3 N. E. Rep. 93; O'Brien v Frasier, (N. J.) 1 Atl. Rep. 465. See Israel v. Brooks, 23 Ill. 575; Bacon v. Towne, 4 Cush. 240; Pullen v. Glidden, 68 Me. 563; Fitzgibbon v. Brown, 43 Me. 169; 3 Suth. Dam. 708.

(6) Advice of Counsel. Where a party has communicated to his counsel all the facts bearing on the case, of which he had knowledge, or which he could have ascertained by reasonable diligence, and has, in good faith, acted upon the advice received, a want of probable cause will be negatived, and the party will not be held liable, Walter v. Sample, 25 Pa. St. 275; Wicker v. Hotchkiss, 62 III. 107; Anderson v. Friend, 71 Ill. 475; Davie v. Wisher, 72 Ill. 262, Ash v. Marlow, 20 Ohio, 119; Eastman v. Keasor, 44 N. H. 519; Hill v. Palm, 38 Mo. 13; but he must act in good faith after stating all the facts, and the advice must be given honestly and in good faith, Sherburne v. Rodman, (Wis.) 8 N. W. Rep. 414; see Plath v. Braunsdorff, 40 Wis. 107; for advice of counsel is of no avail as a defense unless defendant acted in good faith in instituting the suit, Wetmore v. Mellinger, (Iowa,) 14 N. W. Rep. 722; Center v. Spring, 2 Iowa, 393; and in suits for malicious prosecution the advice of counsel is referable rather to the issue of malice than the want of probable cause. If the jury can see, from all the facts, that the suit was malicious, notwithstanding the advice of counsel, that fact affords no protection. Brewer v. Jacobs, 22 Fed. Rep. 217.

It is said in Walter v. Sample, 25 Pa. St. 275, that "professors of the law are proper advisers of men in doubtful circumstances, and their advice, when fairly obtained, exempts the party who acts upon it from the imputation of proceeding maliciously and without probable cause. It may be erroneous, but the client is not responsible for the error. He is not the insurer of his lawyer. Where the fact of probable cause is in the very question submitted to counsel in such cases, and when the client is instructed that they do, he has taken all the precaution demanded of a good citizen. To manifest the good faith of the party it is important that he should resort to a professional adviser of competency and integrity. He is not, in the language of Judge ROYES, to make such resort a mere cover for the prosecution;' but, when he has done his whole duty in the premises, he is not to be made liable because the facts did not clearly warrant the advice and prosecution. * * Suppression, evasion, or falsehood would make him liable; but if fairly submitted, and if the advice obtained was followed in good faith, he has a defense to the action."

(a) Advice of District Attorney. The rule is the same where the defendant acted under the advice of the district attorney. Thompson v. Lumley, 50 How. Pr. 105. It is for the jury to say whether a defendant stated all the material facts to a prosecuting attorney. Johnson v. Miller, (Iowa,) 19 N W. Rep. 310.

(b) Advice of Justice of Peace. It is no defense in an action for malicious prosecution that the defendant laid the facts within his knowledge before a justice of the peace and acted on his advice. Gee v. Culver, (Or.) 6 Pac. Rep. 775; Olmstead v. Partridge, 16 Gray, 381; Brobst v. Ruff, 100 Pa. St. 91. Notwithstanding, it is the defendant's duty,

on applying to justice for warrant, to state all of the facts and circumstances. Chapınan v. Dunn, (Mich.) 22 N. W. Rep. 101.

(7) Public Officer. A public officer, acting under the direction of his government to procure the extradition of a particular person for a crime charged, has probable cause for believing the person so charged guilty, and of assigning the act as committed since the statute or treaty making such act a crime was passed or ratified. Castro v. De Uriarte, 16 Fed. Rep. 93. A warrant of arrest pending preliminary hearing in extradition proceedings is not void because no preliminary mandate has been obtained, unless the statute or treaty makes such preliminary mandate prerequisite. Castro v. De Uriarte, 16 Fed. Rep. 93; Case of Farez, 7 Blatchf. 34, 46; Case of Thomas, 12 Blatchf. 370. See In re Kelley, 2 Low. 339. A warrant for the arrest of one charged with a crime which follows the words of the statute or treaty in designating the crime charged, without further particulars, is sufficient. Castro v. De Uriarte, 16 Fed. Rep. 93; Case of Macdonhell, 11 Blatchf. 79, 88; Payne v. Barnes, 5 Barb. 465; Atchinson v. Spencer, 9 Wend. 62; People v. Donohue, 84 N. Y. 438; Case of Terraz, 4 Exch. Div. 63. It is said, in Wheaton v. Beecher, (Mich.) 13 N. W. Rep. 769, that an officer to whom a warrant is delivered is not bound to look behind it, if regular on its face and issued from a proper jurisdiction; and if he executes it he cannot be held liable in a civil action for dam. ages, though it be invalid.

(8) Defective Process, etc. When a matter is wholly beyond the jurisdiction of the committing magistrate, an action for malicious prosecution will not lie. Castro v. De Uriarte, 12 Fed. Rep. 260; see Painter v. Ives, 4 Neb. 126; Sweet v. Negus, 30 Mich. 406; except in cases where malicious falsehoods are put forward as the gravamen, and the arrest or other act of trespass be claimed as the consequence. Newfield v. Copperman, 47 How. Pr. 87; Thaule v. Krekeler, 81 N. Y. 428; Von Latham v. Libby, 38 Barb. 348; Dennis v. Ryan, 63 Barb. 145; S. C. 65 N. Y. 385. But one for false imprisonment will. Murphy v. Martin, (Wis.) 16 N. W. Rep. 603; Colter v. Lower, 35 Ind. 285. An action for ma licious prosecution will lie where the defendant falsely and maliciously procured the plaintiff to be adjudged a bankrupt upon an affidavit which was not sufficient legally to warrant an adjudication. Farley v. Danks, 4 El. & Bl. 493; Oldfield v. Dodd, 8 Exch. 578.

It was held in Gibbs v. Ames, 119 Mass. 60, where a plaintiff was brought to trial and acquitted, but without any previous proper complaint or proper warrant of arrest, that an action for malicious prosecution would lie. The court say: "This was a sufficient prosecution and acquittal therefrom to furnish a foundation for the common action for malicious prosecution, notwithstanding an insufficiency of the complaint, or defect of process by which she was brought before the court, or want of jurisdiction of the magistrate arising from such defect. The magistrate had jurisdiction of the subjectmatter of the complaint, which was not the case in Bixby v. Brundige, 2 Gray, 129, and Whiting v. Johnson, 6 Gray, 246."

2. MALICE. Malice and want of probable cause on the part of the person instituting the prosecution is essential to support a suit for malicious prosecution, and should both concur. Castro v. De Uriarte, 16 Fed. Rep. 93; Yocum v. Polly, 1 B. Mon. 358; Mitchell v. Mattingly, 1 Metc. (Ky.) 240; Ullman v. Abrams, 9 Bush, 744; Woods v. Finnell, 13 Bush, 628; Kelton v. Bevins, Cooke, (Tenn.) 90; Bell v. Graham, 1 Nott & McC. 278; Smith v. Zent, 59 Ind. 362; Evans v. Thompson, 12 Heisk. 534, Scott v. Shelor, 28 Grat. 891; Carleton v. Taylor, 50 Vt. 220; McKown v. Hunter, 30 N. Y. 625; Fagnan v. Knox, 66 N. Y. 525. It is said that to maintain his case the plaintiff must prove malice in fact as distinguished from malice in law. Malice in law is where malice is established by legal presumption from proof of certain facts; malice in fact is to be found by the jury from the evidence in the case. They may infer it from want of probable cause. But the plaintiff is not required to prove express malice in the popular sig nificance of that term; it is sufficient if he prove malice in the enlarged legal sense. Any act done willfully and purposely, to the prejudice and injury of another, which is unlawful, is, as against that person, in a legal sense, malicious. Com. v. Snelling, 15 Pick. 337. It has been said that "the malice necessary to be shown in order to maintain this action is not necessarily revenge, or other base and malignant passion. Whatever is done willfully and purposely, if it be at the same time wrong and unlawful, and that known to the party, is in legal contemplation malice. See Wills v. Noyes, 12 Pick. 324; Page v. Cushing, 38 Me. 523; Humphries v. Parker, 52 Me. 502; Mitchell v. Wall, 111 Mass. 492; Pullen v. Glidden, 66 Me. 202. The acquittal of the plaintiffs is not, of itself, evidence of malice on the part of the prosecutor, Garrard v. Willet, 4 J. J. Marsh. 628; Ullman v. Abrams, 9 Bush, 744; neither is a discharge from prosecution by nolle prosequi. Yocum v. Polly, 1 B. Mon. 358.

Malice must be alleged and proved as an independent fact, as well as want of probable cause. Gee v. Culver, (Or.) 6 Pac. Rep. 775; Mitchell v. Jenkins, 5 Barn. & Adol. 593. The jury are the exclusive judges of the malice of the defendant. Gee v. Culver, (Or.) 6 Pac. Rep. 775; Munns v. Dupont, 3 Wash. C. C. 37; Stewart v. Sonneborn, 98 U.

S. 193. The law will not presume malice merely from an unfounded prosecution, Edgeworth v. Carson, (Mich.) 5 N. W. Rep. 282; Dietz v. Langfitt, 63 Pa. Št. 234; for malice is never an inference of law, Gee v. Čulver, (Or.) 6 Pac. Rep. 775; but the jury may infer it as a deduction of fact from a want of probable cause, Heap v. Parish, (Ind.) 3 N. E. Rep. 549: Edgeworth v. Carson, (Mich.) 5 N. W. Rep, 282; Burhans v. Sanford, 19 Wend. 417; McKown v. Hunter, 30 N. Y. 625; Green v. Cochran, 43 Iowa, 545; Flickinger v. Wagner, 46 Md. 581; Wertheim v. Altschuler, (Neb.) 12 N. W. Rep. 107; Turner v. O'Brien, 5 Neb. 542; 2 Greenl. Ev. 2 453, note 1; Bell v. Graham, 1 Nott & McC. 278; Garrard v. Willet, 4 J. J. Marsh. 628; Wood v. Weir, 5 B. Mon. 544; Mowry v. Whipple, 8 R. I. 360; Levy v. Brannan, 39 Cal. 485; Pullen v. Glidden, 66 Me. 202; 2 Greenl. Ev. 453; and a criminal intent is supplied by law where the wrong and injury result from the lack on the part of the defendant of that ordinary prudence and discretion which persons of sufficient age and sound mind are presumed in law to have. Murphy v. Hobbs, (Colo.) 5 Pac. Rep. 119.

Malice will be inferred when the object of the prosecution is to simply enforce the payment of a debt, Ross v. Langworthy, (Neb.) 14 N. W. Rep. 515; or any other purpose than that of bringing the party to justice. Johns v. Marsh, 9 Reporter, 143; Mitchell v. Jenkins, 5 Barn. & Adol. 594. Where the defendant had the plaintiff arrested for petit larceny, maliciously and without probable cause, in an action for malicious prosecution, the hostility and unfriendly feeling of the defendant prior to the institution of the prosecution may be introduced to enable the jury to determine the animus of the defendant in instituting such prosecution. Bruington v. Wingate, (Iowa,) 7 N. W. Rep. 478.

(68 Cal. 135)

HAND v. HAND. (No. 8,981.)

Filed November 30, 1885.

MARRIED WOMAN LIVING AS FEME SOLE-ACKNOWLEDGMENT Of Deed by. Where married woman has lived in United States separate and apart from her husband for more than 20 years, he never having been in the United States, and during such time she has had no relations with him, but has been living part of the time under her maiden name, and part of the time under the name and as the wife of a man with whom she has formed a meretricious connection, and she executed a deed as a feme sole of certain of her separate property acquired in the United States, she will not be permitted to fall back upon her marriage relation, and avoid her deed on the ground that the certificate of the notary does not recite that she was examined "separate and apart" from her husband; and such deed, executed as a feme sole, will be held valid. MCKEE, J., dissents.

In bank. Appeal from superior court, city and county of San Francisco.

Geo. D. Chadbourne, for appellant.

Lloyd & Wood, for respondent.

MORRISON, C. J. This case, which comes before us on the judg ment roll, is a suit to quiet title to certain lots of land in the city of San Francisco. It is conceded that the property in question was at one time owned by the plaintiff; it having been purchased and paid for with her separate funds. But it is claimed that the defendant has succeeded to the ownership thereof by virtue of certain instruments executed by the plaintiff to the defendant. The sufficiency of those instruments to convey the title is the question before us. It was held in the superior court that the defendant had acquired the title of the plaintiff, and judgment was rendered in his favor. The appeal is from that judgment.

It appears from the findings in the case that the plaintiff was a married woman, her husband being a resident of England, but for a great many years living separate and apart from her husband. As v.8P,no.11-45