a jury, and to punish on conviction the accused for the offense charged, his judgment of acquittal in such case will not be taken as prima facie evidence of want of probable cause, or of malice. (p. 909.)

(Syllabi by the court.)

Rucker, Anderson, Strother & Hughes, for the plaintiff in

error.

Strother, Taylor & Flanagan, for the defendant in error.

315 McWHORTER, J. This was an action of trespass on the case for malicious prosecution brought by Aaron Catzen against Isaac Belcher in the circuit court of McDowell county. Catzen was engaged in the mercantile business at North Fork in said county. On the 9th of January, 1906, Isaac Belcher together with John H. Jarvis went into the store of plaintiff and Belcher purchased, among other things, a fur for his wife, for which he paid Catzen the sum of three dollars and ninetyeight cents in cash, with the express understanding, as Belcher claims, and which is not denied by Catzen, that if it did not suit his wife he could return it and have his money refunded. Belcher took the fur home and showed it to his wife, who was not satisfied with it, and the next morning Belcher and said John II. Jarvis returned the fur to the store. Catzen not being in, Belcher delivered it to the clerk and asked him to return to him the three dollars and ninety-eight cents, which the clerk declined to do, but at his request gave him a duebill signed with the name of Catzen for the amount. The clerk states that he did not examine the fur to know what condition it was in when returned. Belcher left the store and later, on the same day, returned and presented the due-bill to Catzen 316 for payment, who took the same but refused to pay the money, claiming that the fur was torn and showed him a fur which was torn, and claimed that it was the one Belcher had returned, and also refused to deliver to Belcher again the due-bill. Belcher then went to the office of J. H. Belcher, a justice of the peace for North Fork district, and detailed to him the facts in relation to the matter and asked his advice, when the justice advised him to have a warrant issued for Catzen for petit larceny, and acting upon such advice he made complaint in writing and had a warrant issued, and caused the arrest of Catzen, who was brought before Justice Belcher on the 10th of January, when, at the instance of the defendant, the case was continued until the 16th of January, and the defendant released upon his own recognizance in the sum of one hundred dollars. On the 16th

of January, Catzen appeared in discharge of his recognizance and by his attorney objected to Justice Belcher trying the case, on the grounds that the prosecuting witness, Isaac Belcher, was related to the justice, and the cause was ordered to be heard before Justice J. R. Greenwalt on the 22d of January, 1906, on which day the defendant Catzen appears in pursuance of his recognizance, when the case was heard and the justice entered the following order: "Trial was had and after hearing all of the evidence introduced by the prosecution in this case and the argument of counsel, I am of opinion that the charge in the warrant of arrest is not sustained, and do dismiss the same and the prosecution at the costs of Isaac Belcher, and the defendant is released from his recognizance herein and permitted to go without day."

At the February rules, 1906, Aaron Catzen filed his declaration in the said circuit court against Isaac Belcher, who appeared and demurred to the declaration, which was overruled by the court, and the defendant Belcher entered his plea of not guilty, upon which issue was joined. On the 6th of December, 1906, a jury was impaneled and returned a verdict for the defendant. The plaintiff moved the court to set aside the verdict and grant him a new trial, for the reasons that the same was contrary to the law and the evidence, and also moved in arrest of judgment, of which motions the court took time to consider, and on the 317 28th of December, after hearing the arguments of counsel thereon, the court overruled the motions and entered judgment for the defendant. The plaintiff excepted to the rulings of the court, which exceptions are set out in a bill of exceptions setting forth all the evidence and the points of exceptions.

The first assignment of error is in the court's refusal to permit the duplicate warrant, served upon the defendant and delivered to him by the constable, to be given in evidence. But this is immaterial, as the warrant itself was included in the record of the justice which was put in evidence.

The questions raised in the case are involved in the four instructions given by the court as asked for by the defendant. These instructions were as follows:

"No. 1. The court instructs the jury that in order to entitle the plaintiff to recover in this action, he must prove affirmatively, to the satisfaction of the jury, by a preponderance of evidence, the defendant sued out the warrant against the plaintiff without any reasonable or probable cause therefor, and also that in so doing they were actuated by malice toward the plaintiff, and that unless the want of probable

reasonable cause and malice concurred at the time said warrant was issued, the plaintiff cannot recover.

"No. 2. The court further instructs the jury that on the question of probable cause, the facts and circumstances, knowledge and information must be reviewed from the standpoint of the defendant, and not that of the plaintiff, and if the said defendant in good faith entertained the reasonable belief that it was his duty to institute and maintain the proceeding complained of against said Katzen, then he cannot be held liable therefor in an action on the case for malicious prosecution, and the jury should find him not guilty.

"No. 3. The court instructs the jury that if they believe from the evidence in this case that the defendant, Isaae Belcher, when he applied to J. H. Belcher, justice of the peace, for a warrant for the arrest of the plaintiff, Aaron Katzen, he detailed to the justice the whole of the facts he knows as to the commission of the offense by the said 318 Aaron Catzen, and if they further believe that the said J. H. Belcher, justice as aforesaid, advised the issuing of the warrant against the said Katzen, then the defendant is not liable in this action, and the jury should find him not guilty.

"No. 4. The court instructs the jury that in an action for malicious prosecution the discharge by a justice of the plaintiff, who had been arrested for an offense of which the justice had original jurisdiction, and could try and determine the same, upon a warrant issued by any justice who has jurisdiction thereof, and there was a trial for said offense, in which the defendant had the opportunity to be heard, the acquittal of the said party by said justice upon said warrant is not prima facie evidence of the want of probable cause on the part of the said party, and the court therefore instructs the jury further, that if they believe from the evidence that although the plaintiff Katzen was arrested upon a warrant procured by the defendant, Isaac Belcher, which said warrant charged the said Katzen with petit larceny, and that the said Katzen was brought before a justice, who had jurisdiction to try and determine the said case by the infliction of punishment on said Katzen, and the said Katzen was acquitted, this of itself is not prima facie evidence of want of probable cause, or of malice, although the said Katzen did not offer any evidence before said justice upon said trial.”

The first instruction above copied is the same as that passed upon as laying down the law correctly at page 62 in Vinal v. Core, 18 W. Va. 1.

The second instruction is in substance taken from point 15 in the syllabus of Porter v. Mack, 50 W. Va. 581, 40 S. E. 459, and propounds the law as therein laid down.

The third instruction is based upon the case of Sisk v. Hurst, 1 W. Va. 53, which fully supports the instruction. The fact that the defendant detailed all the facts to the justice, if done in good faith, was proper to go to the jury as a circumstance tending to show the absence of malice on the part of the defendant in suing out the warrant for plaintiff's arrest, for the question of malice is peculiarly and solely for the jury. In the Sisk case, just cited, the court, in holding the fact that the defendant detailed 319 "to the justice the whole of the information he has derived from other persons as to the commission of an offense by the party whom he seeks to arrest, and the justice, in the discharge of his duty, advises the issuing of the warrant against him, it is such matter for defense to an action for malicious prosecution as will prevent the recovery of damages by the party arrested," went against all precedents, so far as we have been able to discover up to the time of rendering the decision, and it does not appear that any authorities were consulted in the case. The doctrine is supported by the supreme court of California in 1892 in Ball v. Rawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937, where it is held: "If defendant, before instituting the prosecution, fully stated the facts to a justice of the peace, who advised him that he had a reasonable cause to prosecute, and he acted on such advice in good faith, he is not liable." But the authorities from the other states seem to be uniformly to the contrary. Dalbe v. Norton, 22 Kan. 101, where the prosecutor set up as a defense to the action "that at the time that said affidavit was made and warrant issued, the justice of the peace, upon the facts, decided that said defendant had committed the crime of larceny, and advised that he be prosecuted therefor; held, that said decision and advice of the justice are not sufficient defense to the action": Citing Straus v. Young, 36 Md. 246; Olmstead v. Partridge, 16 Gray (Mass.), 381; Murphy v. Larson, 77 Ill. 172; Beal v. Robeson, 30 N. C. 276; Stanton v. Hart, 27 Mich. 539; Burgett v. Burgett, 43 Ind. 78; Wilkenson v. Arnold, 11 Ind. 45; White v. Tucker, 16 Ohio St. 468. We also find it so held in Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Potter v. Casterline, 41 N. J. L. 22; Finn v. Frink, 84 Me. 261, 30 Am. St. Rep. 348, 24 Atl. 851; Gee v. Culver, 12 Or. 228, 6 Pac. 775; Sutton v. McConnell, 46 Wis. 269, 50 N. W. 414; Coleman v. Heurich, 2 Mackey, 189; Cooney v.

Chase, 81 Mich. 203, 45 N. W. 833; Williams v. Vanmeter, 8 Mo. 339, 41 Am. Dec. 644; Brobst v. Ruff, 100 Pa. 91, 45 Am. Rep. 358; Beihofer v. Loeffert, 159 Pa. 365, 28 Atl. 217; Marks v. Hastings, 101 Ala. 165, 13 South. 297; Cook v. Proskey, 138 Fed. 273, 70 C. C. A. 563; 19 Am. & Eng. Ency. of Law, 690; 26 Cyc. 33, and authorities cited. While the authorities seem to be uniform, with the exception of the case of 320 Sisk v. Hurst, 1 W. Va. 63, and the California case, both cited, that in an action for malicious prosecution the defendant cannot justify his action in the prosecution upon having relied in good faith upon the advice of a justice of the peace, yet they seem to be entirely uniform in holding that when the defendant first seeks competent legal counsel to direct him in the matter and lays the whole of the facts before such counsel as he has information thereof, it is sufficient defense to defeat an action against him for the proceeding. The rule as laid down in 1 American Leading Cases, 267 (x215), cited in Potter v. Casterline, 41 N. J. L. 22, on this point is thus stated: "If a party lays all the facts of the case fairly before counsel of competency and integrity, before beginning proceedings, and acts bona fide upon the opinion given by that counsel, however erroneous that opinion may be, he is not liable to this action. . . . . A defendant cannot excuse himself by showing that he consulted with an unprofessional person, and followed his advice.”

We conclude that instruction No. 3, given for defendant, does not correctly propound the law, and should not have been given, and point 2 of syllabus, Sisk v. Hurst, 1 W. Va. 53, is accordingly overruled.

It is insisted by counsel for plaintiff in error that instruction No. 4 is erroneous, and cite several authorities in support of their contention that the discharge of Catzen by the justice was prima facie evidence of want of probable cause. This may be so where the justice is sitting as an examining court merely to ascertain whether there is probable cause, and is without jurisdiction to finally hear and determine the guilt or innocence of the accused. Under clause 5, section 2170, code of 1906, a justice is given jurisdiction, "In cases of petit larceny, and if the defendant be convicted of such offense, either upon his own confession, or upon the trial by the justice, with or without a jury, he shall be fined not less than ten dollars nor more than thirty dollars, and may, at the discretion of the justice or jury trying the case, be imprisoned in the county jail not exceeding thirty days."