Barhight v. Tammany

Citations

• 158 Pa. 545
• 28 A. 135
• 1893 Pa. LEXIS 1633

Syllabus

<p>Malicious prosecution — Probable cause — Burden of proof.</p> <p>When one accused of crime has been discharged by the examining magistrate and brings an action for malicious prosecution against the prosecutor the burden of proving probable cause is on the defendant.</p> <p>In an action for malicious prosecution for larceny, where the evidence is conflicting as to malice and want of probable cause, it is not improper for the court, after calling attention to the conflict in the evidence, to say that “ this discrepancy in the evidence will present to the jury the duty of deciding, as matter of fact, who has told the truth here and who has failed in that respect, because, as they ascertain the facts to be in regard to this possession of the property by the present plaintiff, their verdict will probably be for the one or the other party now in litigation.”</p> <p>Malicious prosecution — Advice of counsel.</p> <p>The legal advice which constitutes a defence to an action for malicious prosecution must rest on an honest and full presentation to counsel of all the facts within the knowledge of the prosecutor for which he has reasonable ground for believing he is able to prove. An incomplete and unfair statement to counsel warrants an inference that the advice was sought as a mere cover for the prosecution, and an opinion based on such statement is an insufficient reply to evidence of malice and want of probable cause.</p>