Art. 5. Defenses.

defense in so far as it may tend to prove probable cause and disprove malice. And to have that effect it should appear that the advice of counsel was obtained after a full, fair, and honest statement of all the facts concerning the guilt of the person suspected. Willard v. Holmes, Booth & Hayden, 2 Misc. Rep. 303, 51 St. Rep. 569, 21 N. Y. Supp. 998.

It is said that the question of advice of counsel as a defense is a "subject upon which there has been much of inadvertence, it being often said that advice of counsel that the plaintiff was guilty of the offense, given upon all the facts, is a complete defense; but that this is not the rule is no longer open to discussion. with us." Citing Hazzard v. Flury, 120 N. Y. 223; Brown v. McBride, 24 Misc. Rep. 236, 52 N. Y. Supp. 620.

Advice of counsel, while proper upon the question of malice, does not go to the question of probable cause, for while probable cause may be founded upon misinformation as to facts, it cannot be founded upon mistake of law. Hazzard v. Flury, 120 N. Y. 223, 30 St. Rep. 906.

It is not error for a court to refuse to charge that “advice of counsel given on a full and fair statement of his case, and acted upon in good faith, is a good defense," because the request limits the advice to a statement of the defendant's case instead of a statements of the facts, circumstances, knowledge, and information possessed by the defendant. Hall v. Kehoe, 28 St. Rep. 357, 8

N. Y. Supp. 176.

Bona fide acts of a party done on advice given by counsel after full and fair statement of the facts is evidence of probable cause, however erroneously made. Richardson v. Virtue, 2 Hun, 211, 4 T. & C. 441.

Advice of counsel bears upon the question of probable cause only when there is a question for the jury as to probable cause. "Where the undisputed facts make the question of probable cause for the court, advice of counsel is of no weight on that head." Brown v. McBride, 24 Misc. Rep. 236, 52 N. Y. Supp. 620.

The defendant may show advice of counsel, as it bears upon the good faith of the defendant. Turner v. Dinnegar, 20 Hun, 465.

Advice of counsel cannot affect the question of damages unless it is shown that the advice was based upon the facts truly stated to the counsel. Howe v. Oldham, 69 Hun, 57, 53 St. Rep. 327, 23 N. Y. Supp. 703.

Art. 6. Parties.

Advice of counsel standing alone does not free a client from the imputation of malice. To have that effect the question must be one of law, or some legal principle must be involved, in order to a proper decision of which the law applicable to the question must be ascertained. If the client in such a case acts in good faith upon the advice of counsel, there cannot be a charge of malice. Laird v. Taylor, 66 Barb. 142.

Where a party lays his case fully and fairly before counsel and acts in good faith on the opinion given by such counsel, however erroneous the opinion may be, it is sufficient evidence of probable cause and a good defense in an action for malicious prosecution. But in such a case it is a proper question for the jury whether the party acted bona fide on the opinion given him, believing that the plaintiff was guilty of the crime of which he was accused. So held in Hall v. Suydam, 6 Barb. 83. See cases cited supra.

In England the defendant who lays the true facts of an action before counsel and acts bona fide upon the opinion of the counsel, though the same be erroneous, is not liable to an action for malicious prosecution. Ravenda v. McIntyre, 2 B. & C. 693.

But if he does not act bona fide on the opinion or believe that he has cause for prosecution, or neglects to state all the facts, or selects an ignorant counsel to shield his malice, he may be liable. Ravenda v. McIntyre, 2 B. & C. 693; Hawlett v. Cruchley, 5 Taunt. 277.

It is error to reject evidence offered by defendant to show that he stated facts within his knowledge touching the charges made against the plaintiff to an attorney and also to a justice of the peace, asking their advice, which he received. Turner v. Dinnegar, 20 Hun, 465, citing 2 Greenl. Ev. 459; Richardson v. Virtue, 2 Hun, 208; Laird v. Taylor, 66 Barb. 139.

Where parties, without probable cause and with the willful and malicious intent of injuring a surviving partner and a corporation

Art. 6. Parties.

to which such partner had conveyed certain assets, institute involuntary bankruptcy proceedings against such surviving partner, two distinct causes of action arise, one in favor of the surviving partner for the damages sustained by him personally, and one in favor of the corporation for the damages sustained by it. Neither the corporation nor the surviving partner has any legal interest in the cause of action arising in favor of the other, and they cannot join in a complaint to recover damages sustained by both, because of the bankruptcy proceedings. Lawrence v. McKelvey, 80 App. Div. 514, 81 N. Y. Supp. 129.

SUBDIVISION 2.
Defendants.

The instigator of the malicious prosecution is liable, although the formal complaint upon which the plaintiff was arrested was made by another person. So held where a domestic servant was arrested on the complaint of a police officer upon the instigation of her master. Dann v. Wormser, 38 App. Div. 460, 90 St. Rep. 474, 56 N. Y. Supp. 474.

Where the complaint was made by defendant's agent, but the defendant retained counsel who appeared against plaintiff and instructed him to procure a warrant, and he attended the trial, -Held, that he was the real prosecutor. Gierhon v. Ludlow, 25 St. Rep. 352, 6 N. Y. Supp. 111.

Where the attorney of an insurance company verified the information stating that the plaintiff had appropriated, etc., moneys of the company and procured a warrant for his arrest, it was held that he had made himself a party to the prosecution and was not in a position to claim the protection of the professional privilege, and that it was error to dismiss the complaint against him. Whitney v. N. Y. Casualty Ins. Assn., 27 App. Div. 321, 50 N. Y. Supp. 227, 84 St. Rep. 227.

The liability of a partner for a malicious prosecution by his fellow partner is considered in Farrell v. Friedlander, 63 Hun, 254, 43 St. Rep. 445, 18 N. Y. Supp. 215. The court comments upon the statement in Abbott's Trial Evidence, p. 217, that "if the act itself was one within the scope of the business and done as such, then it is not material that the other partners were ignorant and innocent, nor that it was willful; otherwise, if the act was

Art. 6. Parties.

wholly foreign to the business." The court says: The court says: "I can find, however, no case which goes to the extent of holding that the malicious prosecution of offenders has been admitted to be within the power constructively delegated to one partner as the agent of another." Further the court said: "I do not think it can be claimed that a prosecution undertaken by one partner, without consultation with and approval by his copartner, can hold the latter liable, because it cannot be assumed that a malicious prosecution by one, even in regard to supposed thefts of partnership property, is within the scope of his partnership authority, so as to make him, in respect thereto, the agent for his copartners." Judgment was, therefore, reversed as to one of the defendants on the ground that there was no evidence to show that he was in any way consulted, took part in, knew of or approved of the prosecution. The court further says, in reversing judgment as to one: "It is doubtful if it can be permitted to stand as against the other." Citing Lewis v. Kahn, 5 N. Y. Supp. 661.

It is now well settled that a private corporation is liable civiliter for malicious prosecution. Willard v. Holmes, Booth & Hayden, 2 Misc. Rep. 304, 51 St. Rep. 569, 21 N. Y. Supp. 998, and cases cited.

An action for malicious prosecution lies against a corporation as well as an individual. The court said: "The motive for the corporate suit is imputed to the corporation, and not to the individual directors." Willard v. Holmes et al., 142 N. Y. 496, 60 St. Rep. 89.

Malicious prosecution lies against a corporation, and evidence that the general manager and general counsel of the corporation laid information charging plaintiff with a crime is sufficient to warrant a finding that the corporation was responsible for the prosecution. Scott v. Dennett, etc., Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016.

The malice of the officers and employees of the corporation accompanying the performance of the acts within, or incidental to the discharge of their duties, is imputable to the corporation, unless those acts were intended as a mere cover for the accomplishment of some independent and wrongful purpose. Willard v. Holmes et al., 2 Misc. Rep. 303, 21 N. Y. Supp. 998.

A corporation is not chargeable with the malice of its clerks in testifying on a criminal process, such testimony not being

Art. 7. Pleading.

within the scope of their employment. Kutner v. Fargo, 20 Misc. Rep. 207, 79 St. Rep. 753, 45 N. Y. Supp. 753.

For a case where the malice of the manager of an insurance company in causing the arrest of a collecting agent was held to be imputable to the corporation, because within the scope of his authority, see Manasha v. Royal Benefit Society, 21 Misc. Rep. 474, 81 St. Rep. 628, 47 N. Y. Supp. 628.

In Purcell v. Long Island City, 84 Hun, 439, 65 St. Rep. 537, 32 N. Y. Supp. 302, it was held that where the prosecution complained of was that of a school trustee of a municipality, who, as such, charged the plaintiff with stealing certain property belonging to the municipality, and where the corporation counsel appeared against the plaintiff, and where the proceedings on trial were published in the newspapers of the city, and where the charge was finally dismissed, that such evidence was not sufficient to connect the municipality with the prosecution of the criminal charge, and that a nonsuit was correct. In reaching this decision the court. said: "It is not necessary upon this appeal to decide whether an action for malicious prosecution can be maintained against a municipal corporation, because the facts failed to connect the defendant with the prosecution of this case."

This has long been an open question in England and the action denied on the ground that malice is necessary, and a corporation, having no mind, could not be malicious. Stevens v. Midland Ry., 10 Exch. 352; Abrath v. North-Eastern Ry., 11 App. Cas. 247.

In Stokes v. Behrenes, 23 Misc. Rep. 442, 86 St. Rep. 251, 52 N. Y. Supp. 251, it was held that where the complaint states all the facts supporting both false imprisonment and malicious prosecution, the plaintiff should be compelled to elect between the two;