him or his counsel, and, as no written notice was served of the decision, the motion for a new trial was made within time. On the contrary, it is urged by respondent that the bill of exceptions prepared by the appellant shows that on the 29th day of December, when the findings were presented to the court, and before they were signed and filed, the defendant was possessed of the proposed findings, and objected to the court's making findings upon the ground that the court was without authority to do so; that Judge Hart, and not Judge Booth, heard the evidence, and that the latter heard no evidence upon which the alleged findings of fact could be based; that the findings were not warranted nor supported by the pleadings; that the appellant then and there made various other specific objections to each of the proposed findings of fact, and likewise, for the same and additional reasons, the appellant objected to the court's signing the decree as proposed by respondent; that the court then and there overruled all of appellant's objections, to each of which rulings the appellant then and there excepted; that the court then and there, and on the same day, signed and filed the findings and decree as proposed by the respondent; and that because of such proceedings, and of appellant's participation therein, the respondent was not required to serve a written notice of the decision in order to start the running of the five-day period. There is much force to the position taken by counsel for respondent, and, were the question an open one in this jurisdiction, we would be inclined to hold with him. But in the case of Burlock v. Shupe, 5 Utah, 429, 17 Pac. 19, followed and approved in Mercantile Co. v. Glen, 6 Utah, 139, 21 Pac. 500, and in the case of Biagi v. Howes, 66 Cal. 469, 6 Pac. 100, a contrary doctrine seems to have been held. There, in effect, it was held that, under statutes identical with those here in question, a party intending to move has a right to wait for a notice in writing of the decision from the adverse party before giving notice of intention to move for a new trial, and that he is entitled to such notice of the decision before he is called upon to act, although he was present in court when the decision was rendered, and waived findings, and asked for a stay of proceedings on the judgment, and applied to the court for an extension of time in which to give notice of his intention to move for a new trial. It is there said that such a rule is more certain and definite, prevents controversies which under any other construction would be likely to arise, and accords with the evident intention expressed in the statute. Undoubtedly the serving of the written notice may be waived. But, as pointed out in the case of Burlock v. Shupe, supra, to constitute a waiver, "the party must do some affirmative act pointed out in the statute as

not necessary to be done until after the notice." Under the authorities, we are constrained to hold that the motion for a new trial was filed within time; and, as the appeal was taken within six months from the time of the overruling of the motion, it follows that the appeal was taken within time. The motion to dismiss the appeal must therefore be denied.

The appellant urges that the court erred (1) in overruling the demurrer; (2) in making the order requiring him to account; (3) that the court presided over by Judge Booth was not authorized to make findings, because the evidence with respect thereto was not heard by him, but was heard by Judge Hart; and (4) that the court failed to find upon the issues tendered by the counterclaims. We think the demurrer was properly overruled. With respect to the second assignment the appellant has not made to appear wherein the court erred in ordering him to make an accounting. The evidence which the court, presided over by Judge Hart, received and heard on behalf of both parties, lasting some four or five days, is not before us. Whether the court was or was not justified in making such an order must largely depend upon the evidence. We can perceive of some phases of the case where such an order might be made with propriety. Nothing having been made to appear to the contrary, we must presume that the order was properly made. Because the defendant failed to comply with the order, the court, however, was not justified in treating such failure and refusal as a confession of the plaintiff's demand, and entering a judgment against him for such an amount, in the face of his general denial and of his counterclaims. 1 Cyc. 413; Lee v. Abrams, 12 Ill. 111; Bishop v. Baldwin, 14 Vt. 145. But the court did not enter the judgment simply because the defendant failed and refused to comply with the order. The judgment of the court was also based upon the findings of fact as found and filed by the court, and as hereinbefore set forth. Had the court found upon all the material issues raised by the pleadings, we would, on this record, affirm this judgment. We think that the court presided over by Judge Booth was authorized to make findings upon the whole case. But assignment No. 4 must be sustained. It was the duty of the court to find upon all the material issues, including those raised by the counterclaims, regardless of the insufficiency of evidence to support them, or even though no evidence in their support was introduced. If the evidence was insufficient, or if there was no evidence in their support, the findings of fact with respect thereto should have been against the defendant, for on him was the burden of proof on such issues. With respect to these issues the findings are silent, and until they are disposed of no judgment

could be properly pronounced. Dillon Imp. Co. v. Cleaveland (Utah) 88 Pac. 670. For this reason the judgment must be vacated, and the cause remanded. We, however, are not disposed to grant a new trial.

The case is remanded to the trial court, with directions to set aside the findings and judgment, to make new and complete findings upon all the issues presented by the pleadings, and to enter judgment accordingly. This order is made pursuant to chapter 161, p. 260, Sess. Laws 1907, passed since the decision of Dillon Imp. Co. v. Cleaveland, supra. Neither party to have costs.

MCCARTY, C. J.. and FRICK. J., concur.

(50 Or. 210)

PUTNAM v. STALKER. (Supreme Court of Oregon. July 30, 1907.) 1. TRIAL-NONSUIT-DETERMINATION.

On a motion for a nonsuit, every intendment and fair and legitimate inference which can arise from the evidence must be made in favor of plaintiff, and the court must assume those facts as true which the jury might properly find under the evidence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 373.]

2. MALICIOUS PROSECUTION-ACTIONS-PRESUMPTIONS AND BURDEN OF PROOF.

That plaintiff, in an action for malicious prosecution, was held by the magistrate on his preliminary examination, wherein witnesses were examined, both on behalf of the state and plaintiff, to answer at the next term of the circuit court, affords a prima facie case of probable cause; such prima facie case being subject to overthrow by evidence that his binding over was procured by fraud or other improper means.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, § 54.]

3. SAME EVIDENCE-SUFFICIENCY.

Evidence, in an action for malicious prosecution, examined, and held to establish that defendant in making the charge complained of acted in good faith, relying on the advice of the prosecuting attorney, who had previously been fully and fairly advised of all the facts within defendant's knowledge.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, § 152.]

4. SAME-WANT OF PROBABLE CAUSE-ADVICE OF PROSECUTING OFFICER.

Where one before the commencement of a criminal prosecution in good faith discloses to the prosecuting attorney all the facts within his knowledge, or which he has reasonable ground to believe, relating to the offense, and is advised to institute the prosecution, he is not liable as having acted without probable cause, though there were other exculpatory facts which he might have ascertained by diligent inquiry.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33. Mal.cious Prosecution, §§ 45, 46.]

Appeal from Circuit Court, Grant County; George E. Davis, Judge.

Action by H. N. Putnam against J. L. Stalker. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action for malicious prosecution. On March 27, 1906, defendant caused plaintiff to be arrested at Canyon City, Grant county, on a warrant issued by a justice of the peace, based on an information sworn to by defendant, charging plaintiff with having obtained from defendant on March 9, 1906, the sum of $37.50, under false pretenses. By reason thereof, plaintiff was confined in the county jail for 41 days. On May 21, 1906, at the regular term of the circuit court for that county, the prosecuting attorney returned into court an information indorsed "not a true bill," and thereupon plaintiff was discharged. In addition to the foregoing facts, plaintiff alleges that the prosecution was without probable cause and was actuated by malice, concluding with proper and usual allegations of damages. By his amended answer, defendant, by general denial, traverses the whole complaint, and, as a further defense, alleges the facts on which the charge was based; that, after making an investigation of all the circumstances, he submitted all the facts within his knowledge, through his attorney, to the deputy district attorney for that county, who advised defendant that there was probable cause for prosecuting plaintiff, and requested defendant to make and file the information on which the warrant was issued: that acting in good faith, and relying upon the advice of the deputy district attorney, he made the information; that on April 25, 1906, a legal preliminary examination of the charge against plaintiff was had before the magistrate, at which evidence was introduced and witnesses were sworn and examined, both on behalf of the state, represented by the deputy district attorney, and on behalf of defendant in said cause, who appeared in person and by his attorney, and, after a full and fair hearing of the cause, plaintiff herein was held by the magistrate to await the action of the grand jury at the next term of circuit court, and was admitted to bail in the sum of $250, and, being unable to give the same, he was committed to the custody of the sheriff of the county; that these acts of the defendant are the same acts stated in the complaint; and that the charges preferred were true. By the reply there was a general denial of the new matter of the answer. The cause was tried before a jury, and at the close of plaintiff's case defendant moved for a nonsuit, which was overruled by the court. He also requested of the court an instruction for a verdict in his behalf, based upon a claim that he had established by uncontroverted and competent evidence the defense that the prosecution was upon the advice and direction of the prosecuting attorney, which requested instruction was denied. The verdict was for plaintiff in the sum

of $120, on which judgment was accordingly entered, and from which defendant appeals. Error is assigned upon the overruling of the motion for nonsuit and the refusal of the court to instruct the jury as requested by the defendant, as well as upon admission of testimony objected to by defendant.

Errett Hicks, for appellant. V. G. Cozad, for respondent.

SLATER, C. (after stating the facts). By his motion for nonsuit, defendant invoked the ruling of the court on the legal effect of the evidence of plaintiff to support his cause of action. Upon such motion every intendment and every fair and legitimate inference which can arise from the evidence must be made in favor of plaintiff, and the court must assume those facts as true which the jury can properly find under the evidence. Wallace v. Railway Co., 26 Or. 174, 37 Pac. 477, 25 L. R. A. 6C3. And if the evidence tends to show facts which will sustain the action, though remote, the motion for nonsuit should not be sustained. IIerbert v. Dufur, 23 Or. 464, 32 Pac. 302. But if the testimony offered by plaintiff tends to show that the defendant had good reason to believe that the law had been violated, and he acted in good faith, it is the duty of the court to declare the legal effect of the evidence by allowing the motion for nonsuit. "The welfare of society," says Mr. Justice Bean, in Hess v. Baking Co., 31 Or. 513, 49 Pac. 803, "imperatively demands that those who violate the law shall be promptly and speedily punished, and to accomplish that purpose the rule has been firmly established that any citizen who has good reason to believe that the law has been violated may cause the arrest of the supposed offender, and, if in doing so he acts in good faith, the law will protect him against an action for damages, although the accusation may in fact be unfounded. This rule is founded on grounds of public policy to encourage the exposure of crime, and the punishment of criminals, and when, therefore, the act of a citizen in thus enforcing the law is challenged, the court must determine the question when the facts are admitted or established as to whether he had probable cause for so doing, and not leave it to the arbitrament of a jury."

At the outset of his case, plaintiff offered, and there was received, the transcript of the proceedings in the justice court, which contains the information sworn to by defendant before the magistrate on March 27, 1906, and the warrant issued thereon, and upon which plaintiff was arrested on the 27th day of March, 1906, and on the next day was committed by the magistrate to the custody

of the sheriff of the county. But it further shows that on April 25, 1906, a preliminary hearing was had before the magistrate upon the charge, and after an examination duly held according to law, at which the state appeared by the deputy prosecuting attorney for that county, and the plaintiff appeared in person and by his attorney, and after three witnesses has been examined on behalf of the state, and two on behalf of plaintiff, including himself, he was held to answer at the next term of the circuit court for that county, and was admitted to bail in the sum of $250. This evidence, instead of showing the want of probable cause, the burden of showing which was upon plaintiff, makes, it would seem, a prima facie case of probable cause. "It is quite generally held," says Mr. Justice Wolverton, in Stamper v. Raymond, 38 Or. 16, 62 Pac. 20, "that, where proof was offered upon the examination which is deemed sufficient by the committing magistrate upon which to commit, his commitment accordingly will afford prima facie evidence of probable cause." The effect of the commitment as evidence of probable cause, however, may be overthrown by other evidence showing that it was obtained by false pretenses or other improper means. Sharpe v. Johnston, 76 Mo. 660; Giusti v Del Papa, 19 R. I. 338, 33 Atl. 525; Womack v. Circle, 29 Grat. (Va.) 192. But, unless it is overthrown by testimony of that character, it becomes conclusive, and must prevent the plaintiff from prevailing. We are unable, however, to discover in the record any evidence on the part of plaintiff tending to show, and in fact it does not seem to have been claimed by him, that there was any fraud or other improper conduct on part of this defendant at the preliminary examination which prevented the plaintiff from obtaining a full and fair hearing, or that the conclusion announced by the magistrate was the result of any improper conduct of defendant; nor are we able to find any evidence on part of defendant in this case, after his motion for nonsuit was overruled, by which the prima facie case of a probable cause, made out by the commitment, was overthrown. The court therefore erred in denying the motion.

2. At the close of the testimony, defendant by his counsel requested the court to instruct the jury as follows: "The court instructs the jury that the fact is before you and is not disputed that, before the defendant began the criminal action described in the complaint in this case, he was advised by J. E. Marks, deputy district attorney for the Ninth judicial district of Oregon for Grant county, to institute the said criminal action, and that before receiving such advice there had been laid before the said deputy district attorney all the facts and circumstances in the knowledge of the defend