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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. 2 457. 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.)2Pac. Rep. 635, and the question of malice is for the jury. Parli v. Reed, (Kan.)2Pac. 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.)4Pac. 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, 1 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.) 2Pac. 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.) 1Atl. 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 Ill. 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 RoxEs, 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 £ 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. Chapman v. Dunn, (Mich.) 22 N. W. Rep. 101.

(7) Public Officer. A public officer, acting under the direction of his government to

rocure 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 Macdonnell, 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 damages, though it be invalid.

(8) Defective Process, etc. When a matteris wholly beyond the jurisdiction of the committing magistrate, an action formalicious 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 at 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 malicious 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 # # an adjudication. Farley v. Danks, 4 El. & Bl. 493; Oldfield v. Dodd, 8

Xch. 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 formalicious 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 significance 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. St. 234; for malice is never an inference of law, Gee v. Culver, (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. 2453, 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 formalicious 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 femé 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 femé 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 judgment 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

early as 1863 a meretricious union was formed by plaintiff and defendant, and they had lived in California as husband and wife from 1863 down to the year 1878. The first finding is— “That plaintiff is, and ever since the sixth day of October, 1855, hath been the lawful wife of one William Nickels. (2) That during all this time the said William Nickels hath been and still is a resident of Colchester, England, and hath never been in the state of California or in the United States of America. (3) That plaintiff and said Nickels have not lived or cohabited together since 1863; but that plaintiff and defendant lived and cohabited together as husband aud wife from 1863 to 1878; that plaintiff has been a resident of this state continuously since 1868.” It is conceded on both sides that the certificate of acknowledgment to the deed attempting to convey the property in question, made by plaintiff to defendant under the name of Mary Ann Hand, on the thirteenth day of August, 1873, is not in the form prescribed by the statute for the deeds of married women; but, as the eleventh finding shows, is in the form prescribed by the statute for the acknowledgment of a feme sole, and not in the form prescribed for the acknowledgment of a married woman. Afterwards, to-wit, on the twentyseventh day of July, 1878, she executed another instrument to the defendant, acknowledged in like manner, which said instrument was in the name of Mary Ann Halls. But was the conduct of the plaintiff such as to take from her the right to invoke the statute referred to for the purpose of defeating her deed? We are of the opinion that it was. During the entire period of her residence in California she was never known as the wife of Nickels, but passed as the wife of Hand, with whom she was living as his wife, but to whom it is not pretended she ever was married; and a part of the time she passed by her maiden name of Mary Ann Halls. Indeed, she had done all she could do in the absence of a legal divorce, to separate herself from her lawful husband; and after many years ignoring her husband she seeks to avail herself of the plea of marriage to defeat an instrument made and delivered by her as her deed. This case does not differ in principle from that of Reis v. Lawrence, decided by this court and reported in 63 Cal. 129. See, also, Rosenthal v. Mayhugh, 33 Ohio St. 155. There are other points made by the respondent, but it is not necessary to consider them, as we think the judgment must be affirmed on the one already stated. Judgment affirmed.

I concur: MYRICK, J.

I concur in the judgment: THoRNToN, J.

Ross, J., (concurring.) I agree that the plaintiff should be regarded as a single woman. The property to which she asserts title was ac

quired by her in this state. Her husband has never been within the United States. For 20 odd years she has repudiated her marital re

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