Torsch v. Dell

Citations

• 88 Md. 459
• 41 A. 903
• 1898 Md. LEXIS 215

Syllabus

<p>Maliciotts Prosecution — Probable Cause — Inference of Malice from Absence of Probable Cause — Advice of Counsel.</p> <p>In an action for malicious prosecution, the plaintiff must show that the defendant did not have probable cause for the arrest and prosecution of the plaintiff, or in other words, that the defendant did not have such reasonable grounds for suspecting plaintiff to be guilty of the offence charged as would warrant a cautious man in believing him to be guilty.</p> <p>In this case where plaintiff had been arrested and prosecuted at the instigation of the defendant for stealing certain books relating to the business in which they had been jointly engaged, it was held upon the facts that the evidence was legally sufficient to show that the defendant did not have probable cause to suppose that the plaintiff was guilty.</p> <p>Malice in an action of malicious prosecution may generally be inferred from the absence of probable cause, but such presumption may be rebutted and then the burden of proof is on the defendant to show that he did not act maliciously.</p> <p>If the evidence be conflicting as to the existence of the facts relied on to rebut the presumption of malice arising from the absence of probable cause, then the question is for the determination of the jury.</p> <p>When the defendant relies upon the fact that he acted upon the advice of counsel in instituting the prosecution to prove that he did not act maliciously, he must show that he communicated to counsel all the material facts which he knew or could have ascertained with reasonable diligence.</p>