ing the prosecution ceases to be material; but, where the defendant fails to show facts which the law will recognize as constituting probable cause, proof of the absence of malice may become indispensable.

From the same facts which show the absence of probable cause, the jury may infer legal malice, and hence the proof of good faith in instituting the prosecution should be as full and positive as the circumstances will warrant.

If the defendant in the action for malicious prosecution was not the prosecutor, in fact, and is sought to be made so by construction for having given false information, which led to a subsequent arrest, the motive is material, and proof that the information was given in good faith is a defense to the action. Farnam v. Feeley, 56 N. Y. (11 Sick.) 451.

And, in any case, although the defendant is unable to justify by proof of probable cause, he may still rebut the presumption of malice by showing facts and circumstances calculated to produce at the time on the mind of a reasonable and prudent man a well grounded belief or suspicion of the guilt of the person accused. Harpham v. Whitney, 77 Ill. 32.

3. Advice of counsel. The defendant may also rebut the presumption of malice by showing that he acted under the advise of counsel. If the defendant communicated to counsel all the facts bearing upon the guilt or innocence of the accused of which he had knowledge, or could by reasonable diligence have ascertained, and, acting under the advice of such counsel, procures the accused to be indicted, he may plead the advice thus given as a defense in an action for malicious prosecution. Wicker v. Hotchkiss, 62 Ill. 107; 14 Am. Rep. 75; Calef v. Thomas, 81 id. 478; Burris v, North, 64 Mo. 426; Ames v. Rathbun, 55 Barb. 194; Center v. Spring, 2 Clarke (Iowa), 393; Fisher v. Forrester, 33 Penn. St. 501; Potter v. Seale, 8 Cal. 217.

The fact that the defendant sought, received and acted upon the advice of counsel affords strong evidence that there was probable cause and that the prosecution was entered into in good faith and without malice. Skidmore v. Bricker, 77 Ill. 164; Murphy v. Larson, 77 id.

172.

While an honest reliance on the advice of counsel, who has been fully informed of the facts, may be a complete justification in an action for malicious prosecution, the advice of a lawyer who is a pettifogger will be no justification. Stanton v. Hart, 27 Mich. 539. And a reliance upon the advice of a person who is not a counselor or attorney at law is incompetent to disprove malice. Olmstead v. Part ridge, 82 Mass. 381; Straus v. Young, 36 Md. 246.

And in order to make the advice of counsel available as a defense, the defendant must show that he communicated to him all the facts which he knew, or by reasonable diligence could have known, bearing upon the guilt or innocence of the accused, even though the defendant supposed that some of the facts were not material. Hill v. Palm, 38 Mo. 13; Sharpe v. Johnston, 59 Mo. 557; Thompson v. Lumley, 50 How. 105; Sappington v. Watson, 50 Mo. 83; Cooper v. Utterbach, 37 Md. 282; Ross v. Innis, 26 Ill. 259.

The defendant must also show good faith in acting under the advice of counsel. If, after making a full and fair statement of the case to counsel and receiving advice thereon, other facts come to the knowledge of the defendant which satisfy him that the accused is not guilty, the fact that he received and acted upon the advice is no protection. Cole v. Curtis, 16 Minn. 182.

The defendant must also show good faith in the selection of counsel, and the counsel selected must be a regularly licensed attorney and counselor, reputable in character, and considered in the community competent to give legal advice on all matters pertaining to the law. Murphy v. Larson, 77 Ill. 172.

In some of the States the effect of the advice of counsel as a defense in an action for malicious prosecution is regulated and defined by

statute.

Under the Georgia Code the advice of counsel is not in itself a protection to the defendant in this action; yet, evidence of the fact may be submitted to the jury as a circumstance tending to show a want of malice, the existence of probable cause, and in mitigation of damages. Fox v. Davis, 55 Ga. 298. And see Raver v. Webster, 3 Clarke (Iowa), 502.

If the evidence shows that the defendant acted from motives of private interest and without probable cause, the advice of counsel will not exempt him from liability. Glascock v. Bridges, 15 La. Ann.

672.

Advice of counsel is merely evidence to rebut the imputation of malice, and where that is expressly proved, advice of counsel does not palliate the wrong. Davenport v. Lynch, 6 Jones' Law (N. C.), 545.

Whether the advice of private counsel (instead of the district attorney), though given in good faith, with a full knowledge of the facts, is a complete defense to an action for a malicious prosecution, has been questioned in Wisconsin. Plath v. Braunsdorff, 40 Wis. 107. See Dennis v. Ryan, 65 N. Y. (20 Sick.) 385; S. C., 22 Am. Rep. 635.

4. Former suit not terminated. An action for malicious prosecution will not lie where the prosecution alleged to be malicious is still

pending and undetermined, for the reason that until the termination of the prior suit it cannot appear that it was prosecuted maliciously and without probable cause. O'Brien v. Barry, 106 Mass. 300; 8 Am. Rep. 329; Cardival v. Smith, 109 Mass. 158; S. C., 12 Am. Rep. 682. See ante, p. 338.

It necessarily follows, then, that proof that the prior action is still pending and undetermined will be a good defense to an action for malicious prosecution. Ante, 347.

If the alleged malicious prosecution was founded on a criminal charge, it will be a good defense to show that it resulted in a conviction. Miller v. Deere, 2 Abb. 1; Cloon v. Gerry, 13 Gray, 201. But this is not always the case. See ante, 349. If the prosecution was by civil action, it will be a good defense to show that it resulted in a judgment in favor of the plaintiff therein, even if such judgment has been reversed upon appeal. Palmer v. Avery, 41 Barb. 290.

The question as to what constitutes a legal termination of the prosecution has been discussed in the preceding article.

Where a person has been committed to jail by a magistrate to await the action of the grand jury, and before the grand jury meet, has been discharged under a writ of habeas corpus, the discharge under the writ is not such a termination of the prosecution as will authorize the commencement of an action for malicious prosecution. The prosecution in such case is not determined until the grand jury meet and the case is presented and ignored, or the plaintiff fails to prosecute the action. Swartwout v. Dickelman, 12 Hun, 358; Clark v. Cleveland, 6 Hill, 344.

§ 5. Want of jurisdiction. Whether it is a good defense to the action for malicious prosecution that the prosecution complained of was had before a court having no jurisdiction, see Painter v. Ives, 4 Nebr. 122; Bodwell v. Osgood, 3 Pick. 379, 383; Turpin v. Remy, 3 Blackf. 210; Morris v. Scott, 21 Wend. 281; Sweet v. Negus, 30 Mich. 406; Stone v. Stevens, 12 Conn. 219; Hays v. Younglove, 7 B. Monr. 545.

CHAPTER XCII.

MANDAMUS.

TITLE I.

OF MANDAMUS IN GENERAL.

ARTICLE I.

REMEDY, WHEN GRANTED.

Section 1. Definition and nature. Mandamus may be defined as a writ issued by a competent court to an inferior one, or to a person, officer or corporation, commanding, in the name of the supreme authority of the State, the performance of some duty in the performance of which the public or some person is interested.

Originally, it was a common-law prerogative writ and issued only from the king's bench, where the sovereign was considered to be personally present, and to prevent a failure of justice, and where there was no other adequate legal remedy to enforce the performance of a duty in which the complaining party was interested. Rex v. Barker, 3 Burr. 1265; King v. University, 1 W. Black. 552; Rex v. Windham, 1 Cowp. 377; Rex v. Severn, etc., Railway Co., 2 B. & Ald. 646; 3 Bl. Com. 110; Dunklin County v. District County Court, 23 Mo. 449.

Although it still retains in England and even in this country some of the characteristic features of the original prerogative writ, the proceeding now to secure the benefits of it is generally by an ordinary action. People v. Board of Met. Police, 26 N. Y. (12 Smith) 316; People v. Hatch, 33 Ill. 134; City of Ottawa v. People, 48 id. 240; Commonwealth v. Dennison, 24 How. 66; Kendall v. United States, 12 Pet. 527; State v. Gracey, 11 Nev. 223; Gilman v. Bassett, 33 Conn. 298; Chamberlain v. Warburton, 1 Utah, 267. But it is only issued, as originally, to prevent a failure of justice, and where there is no other clear and adequate remedy to enforce the performance of the duty. Arrington v. Van Houton, 44 Ala. 284; State v. Guerrero, 12 Nev. 105; Reading v. Commissioners, 11 Penn. St. 196; Commonwealth v. Commissioners, etc., 16 S. & R. 317; Fitch v. McDiarmid, 26 Ark. 482; State v.

McCrillus, 4 Ark. 250; Runion v. Latimer, 6 So. Car. 126. As at common law, its original advantages as a remedy still continue, and it always issues as a command of the sovereign authority. Id. See, also, Arberry v. Beavers, 6 Tex. 457; Gilman v. Bassett, 33 Conn. 298; Kendall v. United States, 12 Pet. 527. Any court on which common law jurisdiction has been conferred is authorized to issue the writ. Chumasero v. Potts, 2 Mont. 242. As a preventive remedy simply, it is never used. Legg v. Mayor of Annapolis, 42 Md. 203. When the right and interest is one of public concern only, and one individual has no more right to have the act done than another, the application must be made by the attorney-general or other public prosecutor, as relator, whose duty it is to see to the enforcement of public rights and the performance of public duties on the part of public officers and agents of the government. Bates v. Plymouth, 14 Gray, 163; Sanger v. County Commissioners, 25 Me. 291; Hamilton v. State, 3 Ind. 458; People v. Inspectors of State Prison, 4 Mich. 187;. County of Pike v. State, 11 Ill. 202; Rex v. Merchant Tailors Co., 2 B. & Ald. 115; People v. Green, 29 Mich. 121; People v. Hoyt, 66 N. Y. (21 Sick.) 606

In order to entitle an individual to this remedy, to compel a public officer or boards to perform a legal duty, it must appear that he has a direct interest in the performance of the duty, and will be directly injured by its non-performance. People v. Regents of the University, 4 Mich. 98; Bates v. Plymouth, 14 Gray, 163; Heffner v. Commonwealth, 28 Penn. St. 108; Commonwealth v. Mitchell, 82 id. 343.

But it seems that private persons, having an interest in the performance of a certain duty by a public officer, may, when the duty is not due to the government as such, apply for a mandamus in their own names, without the intervention of the government law officer. Union Pacific R. Co. v. Hall, 91 U. S. 343; Hall v. Union Pacific R. R. Co., 3 Dill. (C. C.) 515. Thus it has been held that the validity of an election is a matter of such public right, that any citizen may be a relator in an application therefor. State v. County Judge,7 Iowa, 186; State v. Bailey, id. 390. But this rule is predicated upon the fact that the particular officers, whose election was in question, were charged with duties that peculiarly related to the rights of citizens. Some interest in the relators, in the result, must exist, but a legal interest need not be shown. Village of Glencoe v. People, 78 Ill. 382.

The practice relating to this proceeding is in a measure regulated by statutes in the several States, and the practitioner will be obliged to consult the statute in the particular State, as it is not intended to treat of special statutory remedies in this work, but merely to give the proceedings at common law, which are in force unless wholly superseded