Holliday v. Holliday

Citations

• 6 Cal. Unrep. 1
• 53 P. 42
• 1898 Cal. LEXIS 1038

Syllabus

<p>Malicious Prosecution—Termination of Action.—An Allegation, in an action for malicious prosecution, that the prosecution on which the action is based had been finally determined in plaintiff’s favor, is sufficient, without alleging, in addition, the means, as by writ of habeas corpus, by which that end was accomplished.</p> <p>Malicious Prosecution—Probable Cause.—When a Prosecution, under Penal Code, sections 701-714, authorizing the arrest of a person charged with having threatened to commit an offense, results, after a hearing, in an order requiring the accused to give an undertaking to keep the peace, the order, unless it is shown to have been procured by fraud, is conclusive evidence of probable cause.</p> <p>Malicious Prosecution—Termination—Probable Cause.—In an action for malicious prosecution, it appears that, in one of the prosecutions on which the action was based, the plaintiff was discharged on a writ of habeas corpus, on the ground of the insufficiency of the commitment, and a possible defect in the warrant; and, in the other, upon the statement that she could not give a bond and assurances that she would not harm defendants, who were seeking to compel her to give an undertaking to keep the peace, she was discharged on motion of the district attorney, on her own recognizance. Held, that an instruction that plaintiff’s release upon the habeas corpus proceedings and the dismissal on the motion of the district attorney were each a sufficient termination of the prosecution, for the purposes of this action, going to show a want of probable cause, is error.</p> <p>Malicious Prosecution—Probable Cause—Advice of Counsel.— A defendant in an action for malicious prosecution, who relies on the defense of probable cause by showing that he in good faith acted on the advice of counsel, after having disclosed to him all the material facts within his knowledge relating to the offense and the accusation, need not show that he also disclosed all the material facts be