Seabridge v. McAdam

Malicious Prosecution —Criminal Charge—Malicious Tearing Down of Fences—Evidence—Want of Probable Cause.—In an action to recover damages for the malicious prosecution of a criminal action against the plaintiff, upon a charge that the plaintiff did maliciously and willfully tear down fences to make a passage through an inclosure, it appeared that the premises upon which the fence was broken through had been leased by an administrator, with a provision in the lease that, in case of a sale of the laud with the crop thereon, the lessee should receive a reasonable compensation for his labor and expenditure in putting in the crop and caring for the same until the sale, and that plaintiff was a subtenant under the lease, and had corn growing upon the land, when one of the defendants became the owner through a sale by the administrator; and there was evidence tending to show that the purchaser knew of the rights of the tenant before he purchased the land, and knew the terms of the lease, hut claimed that the subtenant must deliver the land to him and look to the administrator for payment for his labor and expenditures, and that the subtenant persisted in holding on until he was paid, whereupon the purchaser, without offering to pay him, nailed up the fence where the subtenant had been in the habit of going into his field, and forbade him to enter the field, and the breaking of the fence was done by the subtenant by prying off the boards in order to go into his field; held, that such evidence tends to show a want of probable cause for the criminal charge of maliciously tearing down the fences.

Id.—Erroneous Instruction—Advice of Counsel—Question of Fact.— In such action, it was error for the court to instruct the jury that the evidence showed without contradiction that there was probable cause for the criminal prosecution, because defendants acted in good faith, under the advice of counsel, where it appeared that the attorney who gave the advice for the arrest did not base his opinion upon the facts-disclosed by the plaintiff’s evidence, which tended to show that defendants knew facts not consistent with probable cause; hut it is a question of fact to he determined by the jury and not by the court, whether the defendants made a fair and full statement to their attorney of the facts which were known to them.

Id.—Probable Cause, When a Question of Law.—Where all the facts are admitted, the question whether there was probable cause is a question of law for the court.