in substance.

The formal requirements in each jurisdiction must be observed.

If, in the particular case, the present plaintiff had been once convicted, or bound over by a committing magistrate, it will be safer, if not necessary, for him to set up that fact, and state in his pleading the facts which rebut the prima facie effect of such action. In other words, under these conditions, the plaintiff should confess the fact which constitutes prima facie evidence of probable cause and then avoid this fact by allegation of the facts upon which he relies for that purpose.

The defendant's pleading in this action is usually quite simple, consisting of demurrers and exceptions to the petition or declaration of the plaintiff and of denials of the facts alleged by him. It is not often that any matter in confession and avoidance need be plead by him. Whenever such necessity exists, the facts should be set up under the same rules that govern similar pleadings in other cases.

Evidence. The rules of evidence in these cases are substantially the same as those which govern in other civil suits. The burden of proof is on the plaintiff, and he must introduce evidence to prove every fact necessary to sustain each point in his case before he can recover.20

Though the allegation of want of probable cause is negative, it must still be proved by the plaintiff. The defendant's evidence usually consists in facts tending to disprove and destroy the effect of the

26 Miller v. Milligan, 48 Barb. 30 (N. Y.); Walter v. Sample, 25 Pa. St. 275; Boyd v. Cross, 35 Md. 194; Legallee v. Blaisdell, 134 Mass. 473; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650.

plaintiff's testimony. There is, however, one matter which should be discussed to some extent. This is the effect of the advice of counsel as to the institution of the proceeding now claimed to have been malicious.

Advice of counsel. The first question to be considered is, who may be consulted for the purpose of acting on his advice. There is practical unanimity in the decisions. Not only must the counsel have a license to practice law, but he must actually be engaged in the practice and have sufficient moral and legal standing to justify a reasonable man in relying upon his judgment.27

To justify the admission in evidence of advice given by an attorney, it must first be shown that the party claiming the benefit of it made a full and fair statement to the attorney of all the facts of the case as known to him, or that might have been ascertained by him by the exercise of reasonable diligence, and that he believed such facts to be true and acted in good faith in taking such advice regarding the institution of the proceeding.

There is a great difference in the cases as to the effect of such advice after it has been received in evidence. Some of the decisions hold that, if the advice is obtained from a reputable attorney, upon a full and fair statement made in good faith, and the advice is acted upon in good faith, this constitutes a substantive defense and no recovery can be had. Others hold that such advice is proper to be given

27 Murphy v. Larson, 77 Ill. 172; Roy v. Goings, 112 Ill. 656; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650.

in evidence before the jury, but that its effect is to be passed on by the jury and given such weight in connection with the other evidence as the jury sees fit. Some of the cases say that the advice is to be considered in determining the question of probable cause; others, in considering the question of malice; and others, again, that it may be regarded with reference to both.

In some states the distinction is made between the advice given in criminal cases by counsel sought out and employed by the party instituting the prosecution and that given by the official representative of the people, the former not being regarded as a substantive defense, but only being received for what the jury may regard it to be worth, while the latter constitutes a defense within itself." 28

12. Malicious prosecution contrasted with false imprisonment. In conclusion, it may be well to contrast malicious prosecution with false imprisonment under judicial process. Malicious prosecution does not involve a direct trespass by the party sought to be held liable upon the person or property of him who is claiming the damage. False imprisonment always involves such a trespass. The wrong in malicious prosecution lies back of the actual trespass by the officer holding the process, and consists in the malicious and unfounded putting in operation of the machinery of the law.

False imprisonment, on the other hand, does not

28 Hill v. Palm, 38 Mo. 13; Sharpe v. Johnston, 59 Mo. 557; Lange v. Illinois Central R. R. Co., 107 La. Ann. 687, 31 So. 1003; Sebastian v. Cheney, 86 Texas 497, 25 S. W. 691.

involve either of these ideas. False imprisonment under legal process consists in the arrest of the wrong person under process that is fair on its face, or else the arrest of a person under supposed process which is void. Malicious prosecution usually involves the seizure of the person or his property under a writ fair on its face, issued from a court having jurisdiction, commanding the very act which the officer has performed.

Notwithstanding these various differences, states of fact may arise under which the injured party would have the election to sue either for malicious prosecution or for false imprisonment. This election exists in those cases in which the court where the pleading was instituted had jurisdiction over the subject matter, but its active jurisdiction was not properly invoked. Here the injured party can take advantage of the defect in the exercise of the powers of the court and sue for false imprisonment; or he can insist that, the court having jurisdiction of such matter, having actually taken him into custody and tried him, the proceeding was a judicial one; or he may invoke the doctrine of estoppel.

Election may also exist in cases where prosecution has been instituted maliciously and without probable cause, but the process issued is so defective as not to be fair on its face. Here the party taken into custody may sue the officer making the unauthorized arrest for false imprisonment; or he may acquiesce in the arrest, submit to the trial, and after his acquittal, sue the person instituting the action for malicious prosecution.

BIBLIOGRAPHY.

The following volumes may be consulted with profit in the study of this subject: Bigelow on Torts (8th ed.); Cooley, Law of Torts (students' ed.); Burdick, Law of Torts; Bishop on Torts; and Moore's Civil Treatise.

For specific cases bearing on Malicious Prosecution, the student is referred to the American Digest, Volume XII, also to the American Digest, Century Edition, Volume XXXIII.