Wuest v. American Tobacco Co.

Citations

• 10 S.D. 394
• 73 N.W. 903
• 1898 S.D. LEXIS 1

Syllabus

<p>1. Where defendant, to justify a prosecution appearing to be malicious, pleads affirmatively the advice of counsel, he has the burden of proving this, and, failing to offer any evidence, submission to the jury of the question of probable cause is properly refused.</p> <p>2. One is relieved from liability for malicious prosecution, by advice of counsel, only where he made a fair and full disclosure of all material facts known by hirq, and acted in good faith pursuant to the advice given.</p> <p>3. On the question of whether there was malice in the prosecution of an action by defendant against plaintiffs, testimony that defendant’s counsel had declared that he never had any faith in the action is admissible.</p> <p>4. Malice may be inferred from want of probable cause.</p>