on real estate and afterwards becomes a wrongdoer: Cooley on Torts 316. Whether the court erred in the particulars named depends on the question whether there was evidence tending to show the defendants believed, or had reasonable grounds to believe, there was no probable cause for the continued prosecution before it was dismissed. We have not read the evidence with the care required to determine this question, because we do not deem it necessary to do so. There must be a reversal on other grounds, and when tried again the evidence may not be the same. In view of such trial we, however, deem it proper to say that we do not think a plaintiff is bound to dismiss an action, or that he can be held liable in an action for malicious prosecution, if he does not do so when the evidence adduced on the trial sufficiently shows there is no probable cause for its further prosecution. In the first place, a party has the right to take the chances of a verdict in his favor; and in the second place a party cannot, during the excitement of the trial, be expected to give the matter the requisite thought and attention. The fact, therefore, that probable cause had ceased to exist, must otherwise appear than from the evidence introduced on the trial. The plaintiff asked an instruction in relation to the advice of counsel. This instruction was refused, and the court gave the jury what was deemed the correct rule in the eleventh paragraph of the charge. The only difference between the two, which we can discover, is that the instruction asked states the rule to be that the advice of counsel, on a full and fair statement of the material facts and information within their knowledge, will not protect them, "unless they acted in good faith under the advice received." The sentence quoted is omitted from the charge of the court. In Centre v. Spring, 2 Iowa 393, it was said: "If he does not himself believe that there is cause for the prosecution or action. *** he will not be protected." We think this is the correct rule, briefly stated, and therefore the court erred in refusing the instruction asked. Whether the defendants stated to counsel all the material facts and information within their knowledge, was a question for the jury. A person claiming to be Elias V. Baker came to the defendants' place of business in Burlington, Iowa, and induced them to purchase of him a tract of land in Poweshiek county. A convey ance was executed in the name of Baker and wife, and a part of the consideration was paid. The abstract of the records, and the records of Poweshiek county, show the title to be in Baker. It turned out the conveyance to Baker was a forgery. The defendants. made efforts to find Baker, and failing to do so came to the conclusion the name had been assumed for swindling purposes. During the search they learned the plaintiff resided in Guthrie county, and, for reasons satisfactory to themselves, went to see him, and claimed to have recognised him to be the man Baker, and brought the civil action against him to recover the money paid in consideration. for the land. In that action the present plaintiff took certain depositions in Yankton, which tend to show the plaintiff could not have been in Burlington at the time of the purchase and conveyance of the land. The depositions were offered in evidence in this case by the plaintiff, and the defendants objected thereto on the grounds the same were immaterial, incompetent and irrelevant. The objection was sustained and the depositions excluded. The plaintiff gave evidence tending to show that before the defendants brought the action they were informed by one Arnold the plaintiff had resided at Yankton, and had been somewhat prominent at that place, and he advised defendants to make inquiries there before commencing the action. This they failed to do. The principal issue in the present action was whether the defendant had probable cause for commencing the prior action. Now it was for the jury to say whether, under the circumstances, the defendants should have made inquiry at Yankton before commencing their action, and whether, if they had done so, they would probably have ascertained facts which would have an important bearing on the question of probable cause. For this purpose only we think the depositions were admissible, and therefore the court erred in excluding them. Objections are urged to the rulings of the court in receiving and rejecting other evidence. We do not deem it necessary to extend this opinion by entering on a description of such questions; deeming it sufficient to say we are not satisfied the errors assigned, relating to such objections, are well taken. Reversed. The point decided in this case that the continued prosecution with malice of an action commenced with probable cause, after the plaintiff therein has discovered that there exists no probable cause therefor, renders the plaintiff liable in an ac tion for a malicious prosecution, is, so far as we can learn, one of first impression in this country. The only cases bearing upon the question that we have been able to find are the English cases of Weston v. Beerman et al., 27 L. J. (Ex.) 57, and Fitzjohn v. Mackinder, 30 L. J. (C. P.) 257, 264. In Fitzjohn v. Mackinder, in the Exchequer Chamber, upon appeal from the Court of Common Pleas, the defendant, in answer to a set-off by the plaintiff to the defendant's suit in a county court, produced an acknowledgment purporting to have been signed by the plaintiff that the set-off had been settled. The defendant knowingly and falsely swore that the signature to the paper was made by the plaintiff in his presence. The plaintiff swore it was not his signature. The county court judge, partly in consequence of the defendant's evidence and partly because the plaintiff's evidence was unsatisfactory in other matters, believed the defendant, disbelieved the plaintiff and directed the defendant to be bound over to prosecute the plaintiff for perjury. The defendant, in consequence, preferred an indictment against the plaintiff for perjury at the assizes; the plaintiff was acquitted: Held, by COCKBURN, C. J., BRAMWELL, B., and CHANNELL, B. (WIGHTMAN, J., and BLACKBURN, J., dissenting), that the plaintiff might, on these facts, maintain an action against the defendant for maliciously and without reasonable or probable cause causing the defendant to be indicted for perjury, and prosecuted on such indictment. In rendering his opinion, BRAMWELL, B., said: "Had the action been for damages in respect of the preferring of the indictment only, and had the grand jury thrown the bill out, I think the action would not have been maintainable. Though the charge against the plaintiff was false, as must now be assumed, I think the defendant was bound to prefer the indictment. ***But this action is not for damages in respect of the preferring of the indictment only, but also for the residue of the prosecution and the damage consequent on it. It must be assumed that the defendant laid a case before the grand jury false to his own knowledge, which caused them to find a true bill. For this, I think an acWhere tion maintainable-why not? an action is maintainable in respect of the whole prosecution, including the preferring of the bill, it is part maintainable for the subsequent stages and conduct of it; then, why should it not be maintainable for the parts, even where it is not for the mere preferring of the bill ? *** I think that though the defendant was bound to prefer the indictment, he was not bound, but the contrary, to procure its being found by the means he must have used; that, consequently, as to that part of the case, the order to prosecute does not protect him; that his action was malicious, viz., to avoid having to recant and confess that he had sworn falsely, and so the action lies." COCKBURN, C.J.: "I am not prepared to say that so much of the declaration as charges the defendant with having maliciously procured the order of the county court can be sustained, as it must be taken that the purpose of the defendant's perjury was not to cause the plaintiff to be prosecuted, but simply to defeat the suit. But it appears to me that the action may be well maintained as to so much as charges the defendant with having maliciously and without probable cause preferred an indictment against the plaintiff, and prosecuted such indictment. *** In my opinion a prosecution, though in the outset not malicious, as having been undertaken at the dictation of a judge or magistrate, or if spontaneous from having been commenced under a bona fide belief in the guilt of the accused may, nevertheless, become malicious in any of the stages through which it has to pass, if the prosecution, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution with the intention of procuring per nefas a conviction of the accused." In Weston v. Beerman et al., supra, the plaintiff, a farmer, had assigned to the defendants, as security for money advanced, all his stock, &c., with power to seize the stock and sell the same, and the party put in possession under the bill of sale had issued a summons against the assignor for feloniously stealing some of the chattels assigned, and the assignees who resided at a distance and had until then known nothing of the matter, attended the hearing of the summons which was dismissed; but there was no evidence as to what passed at the hearing, except that the case was stated in the presence of the defendants and on their behalf as prosecutors: Held, that upon the admitted facts the plaintiff had failed to prove the absence of reasonable and probable cause, and, therefore, that the defendant was entitled to a verdict in his favor. The court appear to have considered that there was a material distinction, as to liability for malicious prosecution, between the institution of the prosecution and its continuance after it had been already instituted without authority by the agent, and that the absence of reasonable and probable cause, which might be evidence of malice in one case, was not so in the other. POLLOCK, C. B. : "It may perhaps be laid down generally that when a charge is made which with the least inquiry would appear to be groundless, there is not reasonable cause, and the jury might think that evidence of malice, but here the proceedings merely went to a hearing in the defend * * auts' presence, and they were hardly bound to stop them before they heard the sworn evidence. There is no doubt a material distinction between instituting a prosecution and merely attending the hearing upon a proceeding already commenced. *** The defendants are only responsible for what they did or authorized to be done, not for the whole proceeding." BRAMWELL, B.: "The defendants could not be responsible for the prosecution, except on the supposition of such an utter absence of reasonable cause as would show malice. Now the proceedings were not commenced by them, but only continued; and their responsibility commences at the point at which they became cognisant of the proceedings. Was there, then, an utter absence of reasonable and probable cause? ***The defendants attended the hearing, that was all. * * * If they had said, before they heard a word of evidence, we disavow the proceeding,' that surely would have been acting unreasonably, for it would have been acting precipitately before they knew anything about the matter. I think, therefore, that there was not evidence of an absence of reasonable cause for the defendants' share in the matter." From these cases, as well as upon principle, we think it must be apparent that the decision in the principal case of the point stated at the beginning of this note, is in every respect correct; and upon the whole the entire case is well considered and satisfactory. Chicago. MARSHALL D. EWELL. Supreme Court of California, CANAVAN v. GRAY. Where a statute gives to a person unlawfully in possession a right of action for a forcible entry by the true owner, that remedy is exclusive and he cannot maintain trespass for damages caused by such entry. APPEAL from Superior Court, San Francisco, in an action of trespass in which the following facts appeared: On the 19th day of August 1875, James Canavan, who was then the husband of the plaintiff, was the lessee and in the possession of the fifty-vara lot on the south-east corner of Third and Brannan streets, in San Francisco, and was the owner of all the frame buildings thereon; and on that day he assigned said lease and sold said buildings to the defendant H. W. Gray. On the same day he signed and delivered to said Gray an instrument in writing, of which the following is a copy: "This is to certify that I have rented four rooms, upper story, S. E. cor. Third and Brannan sts., at ($20) twenty dollars per month; and I hereby agree to deliver up possession of the said rooms upon receipt of ten days' notice, said notice to take effect from 13th day of August 1875." On the 26th of September 1875, said Gray commenced an action against said James Canavan for the possession of said premises, and on the 27th of the said month the latter went away, leaving his family, including his wife, the plaintiff herein, in said rooms. He has never occupied said rooms since. But the plaintiff has continued to occupy them without paying any rent for the use and occupation thereof. On the 5th day of April 1879, some persons who had been employed by said Gray for that purpose, unroofed the house containing said rooms, and by so doing damaged the personal property of the plaintiff therein, and this action was brought to recover the damages which the plaintiff thereby sustained. Upon these and other facts, which do not change the legal aspect of the case, a verdict was rendered in favor of the plaintiff for $1000. A motion for a new trial was made by the defendants, and denied by the court, on condition that the plaintiff should remit $250 of the damages, which she did. From that order and the judgment defendant appealed. |