Ames v. Rathbun , 37 How. Pr. 289 ( 1869 )

By the court, Gilbert, J.

The only exception taken by the defendants, was to the admission of evidence of the dismissal of the complaint in the action in which the plaintiff was arrested, The objection to this evidence was, that the complaint contained no averment of the fact sought to be proved. But it was at once obviated by an amendment allowed by the court, to which no exception was taken. The evidence, therefore, was properly received, even if‘the amendment was improperly allowed. But we are of opinion that the amendment was properly allowed. The complaint contained all the averments, requisite to maintain an action on the case for a malicious prosecution, except the averment, that the prosecution was ended. The only effect of the amendment, was to supply this omission, and this is clearly within § 173 of the Code.

It has been urged on this appeal, that the evidence fails to make out a want of probable cause or malice, and therefore, that the plaintiff should have been nonsuited. Although no motion for a non-suit was made, and the case was submitted to the jury under a charge to which no exception was taken, we might review the facts as well as the law, and set aside the verdict in the exercise of the power conferred upon the court by § 329 and § 349 of the Code, because the appeal is both from the judgment and the order denying a new trial. (Macy agt. Wheeler, 30 N. Y. R., 235.; Parker agt. Jarvis, 34 How. P. R., 256 ; Keese agt. Devlin, 3 E. D. Smith, 523; Pumpelly agt. Oswego, 13 Abb., 387; Same agt. Bailey, Abb. N. S., 407.)

But upon a review of the case we are unable to say, that the evidence is insufficient to warrant the verdict, or that the jury were misled by any misdirection. The jury must have believed the testimbny of the plaintiff. Upon this it can hardly be contended, that there was not a want of probable cause, for the unqualified statement, contained in the affidavit, on which the warrant of arrest was issued. The question of malice was properly submitted to the jury. The remarks of the judge, respecting the effect which ought to be given to the advice of counsel were accurate, and were quite as favorable to the defendants as the evidence warranted. Advice of counsel given upon a full and fair statement of the case, and acted upon in good faith, is no doubt a good defense to an action for malicious prosecution. The testimony of Mr Rathbun, the counsel, was, that the statement on which his advice was sought and given, corresponded in all respects with the facts contained in the affidavit aforesaid. The affidavit states, that the plaintiff falsely and fraudulently represented to the defendants, that &c. The jury have found that there was no probable cause for the accusation of fraud. There is, therefore, no ground for saying, that the statement to counsel was fairly made, or that it was in good faith acted upon.

The judgment and order denying the motion for a new trial, must, therefore, be affirmed with costs.