Olmstead v. Partridge , 82 Mass. 381 ( 1860 )

Bigelow, C. J.

1. The copy of the record of proceedings before the magistrate was not only competent, but it was the only proper and legitimate method of proving the essential fact of the institution of the prosecution. Stone v. Crocker, 24 Pick. 87. Sayles v. Briggs, 4 Met. 421.

2. In actions for malicious prosecution, it has been held to be competent for the defendant to prove, in order to establish the fact of probable cause, that in prosecuting the plaintiff on a criminal charge he acted in accordance with the advice of counsel on a full and correct statement of all the material facts bearing on the case. Hewlett v. Cruchley, 5 Taunt. 277. Ravenga v. Mackintosh, 2 B. & C. 693. Stone v. Swift, 4 Pick. 393. But such testimony has always been limited to communications with counsel or attorneys. Statements made to other persons and advice given by them have never been deemed admissible. The law wisely requires that a party who has instituted a groundless suit against another should show that he acted on the advice of a person who by his professional training and experience and as an officer of the court may be reasonably supposed to be competent to give safe and prudent counsel on which a party may act honestly and in good faith, although to the injury of another. But it would open the door to great abuses of legal process, if shelter and protection from the consequences of instituting an unfounded prosecution could be obtained by proof that a party acted on the irresponsible advice of one who could not be presumed to have better means of judging of the rights and duties of the prosecutor on a given state of facts than the prosecutor himself.

3. The instructions given to the jury were entirely correct. The quantity of wood alleged in the complaint could have no bearing on the question whether the prosecution was instituted without probable cause; but it might show the animus of the defendant in making the complaint, if the quantity which she really supposed to have been actually stolen was grossly and wilfully overstated. Exceptions overruled.