Cooper v. Flemming. and the superiority of the Flemming claim under the paper title. (2) It is further insisted that the plaintiff in error failed to disclose to the district attorney the fact that after he bought the land he had told J. J. Flemming and Glen Flemming that he knew nothing of the inclosure in controversy, and had nothing to do with it. What, then, is the legal effect of the advice of the official representative of the State in respect of this matter? In some cases it has been held that advice of counsel should be considered rather as tending to rebut malice, than as bearing upon the issue of probable cause. Brewer v. Jacobs (C. C.), 22 Fed., 217. While it is true that the advice of counsel may properly be considered by the jury as tending to rebut the existence of malice, we think the weight of authority is that its fundamental purpose is to establish the existence of probable cause, and when said advice has been honestly sought, and all the material facts relating to the case, ascertained or ascertainable by the exercise of due diligence, have been presented to counsel, and a prosecution is commenced in pursuance of such advice, then it is the province of the court to charge the jury, as matter of law, that such advice of counsel entitles the party sued to complete immunity from damages. See extensive note to Ross v. Hixon, 26 Am. St. Rep., 144, where the authorities on this subject are collected. The trial judge instructed the jury that the advice of Cooper v. Flemming. the district attorney would be sufficient evidence of probable cause, provided such advice was warranted by the law governing the offense of wantonly and willfully throwing down the fence of another. He further charged that, whether the opinion of the attorney-general was justified by the foregoing statute was a question to be determined by the jury. Counsel for plaintiff in error requested the court to charge that the advice of the district attorney, based upon an honest and full presentation of all the material facts, would constitute probable cause, and a complete defense to the action, although such advice was based upon an erroneous construction of the statute. His honor, however, refused the instructions asked. We are of opinion that in the instructions given, and in the refusal of those submitted on this subject, the trial judge was in error. It is probable the error was committed in following instructions which had been given on this subject by the trial judge in Graham v. Life Association, 98 Tenn., 61, 37 S. W., 995. But an examination of that case will disclose that the question now being considered was not raised and the charge of the circuit judge was copied into the opinion for the purpose of showing that a supplemental request had been covered by the general charge. It is also true that in Hall v. Hawkins, 5 Humph., 359, it was said, "The fact that a party acted upon the opinion of counsel will not excuse him, if the statement of facts upon which the Cooper v. Flemming. opinion was founded was incorrect, or the opinion itself unwarranted." So, in Kendrick v. Cypert, 10 Humph., 291, it was said, "The opinion of counsel, to be available, must be honestly sought and understandingly given." Mauldin v. Ball, 104 Tenn., 598, 58 S. W., 248; Morgan v. Duffy, 94 Tenn., 686, 30 S. W., 735; Vance v. Phoenix Ins. Co., 4 Lea, 385; Memphis Gayoso Gas Co. v. Williamson, 9 Heisk., 342. A review of the authorities has satisfied us that such a statement of the law is unsound, and in conflict with the overwhelming weight of authority in this country and in England. It is certainly a legal anomaly to say that a man, before commencing a criminal prosecution, may take the advice of counsel, but, if it turns out to be unsound, it affords no protection. But it may be said that knowledge of the law must be imputed to the prosecutor, and that he cannot be deemed to proceed upon probable cause when the advice of counsel is contrary to the law. If this view be correct, then the advice of counsel, if erroneous, would cut no figure in the case, except as tending to rebut the presumption of malice that would arise from the absence of probable cause. As stated by the learned annotator in Ross v. Hixon, supra: "If the prosecutor's conduct is to be considered upon the assumption that he knew the law, the advice of counsel can never protect him. For, if the advice be correct, he is subject to no liability and needs no protection, but, if incorrect, he is charged Cooper v. Flemming. with knowledge of its incorrectness, and denied the defense of probable cause." But the great weight of authority, as well as the principle underlying this subject, is opposed to this view of the case. In Stewart v. Sonneborn, 98 U. S., 196, 25 L. Ed., 116, the following request refused by the district judge was held to embody a sound principle of law, viz.: “If the jury believe from all the evidence that A. T. Stewart & Company acted on the advice of counsel in prosecuting their claim against Sonneborn in the circuit court of Barbour county, and, upon such advice, had an honest belief in the validity of their debt, and their right to recover in such action, and, in the institution of the bankruptcy proceedings, acted likewise on the advice of counsel, and under an honest belief that they were taking and using only such remedies as the law provides for the collection of a debt they believed to be a bona fide debt, they having first given a full statement of the facts in the case to counsel, then there was not such malice in the wrongful use of legal process by them as will entitle the plaintiff to recover in this form of action." The court held that the facts stated in the point proposed, if believed by the jury, were a perfect defense to the action; that they constituted, in law, a probable cause; and, being such, that malice alone, if there was such, was insufficient to entitle the plaintiff to recover. Citing Snow v. Allen, 1 Stark., 502; Ra 114 Tenn-4 Cooper v. Flemming. venga v. Mackintosh, 2 Barn. & C., 693; Walter v. Sam ple, 25 Pa., 275; Cooper v. Utterbach, 37 Md., 282; Olmstead v. Partridge, 16 Gray, 381. "These cases," said the court, "and many others that might be cited, show that, if the defendants in such a case as this acted bona fide upon legal advice, their defense is perfect." In Ash v. Marlow, 20 Ohio, 119, it was said that where a party has communicated to his counsel all the facts bearing on the case of which he has knowledge or could ascertain, and has acted upon the advice received honestly and in good faith, want of probable cause is negatived, and an action for malicious prosecution will not lie. Hill v. Balm, 38 Mo., 13; Eastman v. Keasor, 44 N. H., 519; Walter v. Sample, 25 Pa., 275; Wicker v. Hotchkiss, 62 Ill., 107, 14 Am. Rep., 75; Anderson v. Friend, 71 Ill., 475; Davis v. Wisher, 72 Ill., 262; Stone v. Swift, 4 Pick., 389, 16 Am. Dec., 349; Whitfield v. Westbrook, 40 Miss., 311; Leaird v. Davis, 17 Ala., 27; Levy v. Brannan, 39 Cal., 485; Blunt v. Little, 3 Mason, 102, Fed. Cas. No. 1,578; Sappington v. Watson, 50 Mo., 83; Cooper v. Utterbach, 37 Md., 282; Glascock v. Bridges, 15 La. Ann., 672; Bartlett v. Brown, 6 R. I., 37, 75 Am. Dec., 675; Davenport v. Lynch, 51 N. C., 545. Mr. Cooley, the eminent legal writer, in his work on Torts, page 183, says: "It may, perhaps, turn out that complainant, instead of relying upon his own judgment, has taken the advice |