The advice of counsel is not, however, con clusive of absence of malice ; Glasgow v. Ow en, 69 Tex. 167, 6 S. W. 527; and while a full and complete statement of facts to a reputable attorney is a complete defence, yet though the facts may be established beyond doubt the question of good faith is for the jury, when different minds might draw dif ferent conclusions from the evidence ; Bil lingsley v. Maas, 93 Wis. 176, 67 N. W. 49.
The fact that an attorney was consulted before prosecuting the plaintiff for opening his mail, is not admissible as proof of prob able cause, when it also appears that the at torney gave defendant no advice, but refer red him to the U. S. officers ; Holden v. Mer ritt, 92 Ia. 707, 61 N. W. 390.
The malicious prosecution or action must be ended, and the plaintiff must show it was groundless, either by his acquittal or by ob taining a final judgment in his favor in a civil action ; McCormick v. Sisson, 7 Cow. (N. Y.) 715 ; Griffis v. Sellars, 19 N. C. 492, 31 Am. Dec. 422 ; Forster v. Orr, 17 Or. 447, 21 Pac. 440. But see contra, as to civil suits; Big. Torts 73 ; 14 East 216 ; because the plaintiff in •a civil suit can terminate it when ever he wishes to do so. The finding by the examining court that there was probable cause to believe the plaintiff guilty and the binding him over for trial is only prima facie evidence of probable cause, and probable cause cannot be shown by admission of the plaintiff after his arrest nor by the finding of property on his premises, similar to that stolen, if that fact was not known to the defendant when he began his prosecution; Louisville, N. A. & C. Ry. Co. v. Hendricks, 13 Ind. App. 10, 40 N. E. 82, 41 N. E. 14 ; Flackler v. Novak, 94 Ia. 634, 63 N. W. 348. Any act which is tantamount to a discon tinuance of a civil suit has, the same effect ; as where the plaintiff had been arrested in a civil suit, and the defendant had failed to have the writ returned, and to appear and file a declaration at the return term; Car. dival v. Smith, 109 Mass. 158, 12 Am. Rep. 682.
In criminal cases also, when the prosecut ing officer enters a dismissal of the proceed ings before the defendant is put in jeopardy, this act, in some jurisdictions, gives no right to the prisoner against the prosecutor ; for instance, where, in a prosecution for arson, the prosecuting officer enters a nolle prosequi before the jury is sworn ; Bacon v. Towne, 4 Cush. (Mass.) 217. , See Thompson v. Rubber Co., 56 Conn. 493, 16 Atl. 554; McClafferty v. Philp, 151 Pa. 86, 24 Atl. 1042; Atwood v. Beirne, 73 Hun 547, 26 N. Y. Supp. 149; Marcus v. Bernstein, 117 N. C. 31, 23 S. E. 38. The law on this point is unsettled. But it would seem that where the entry of the nolle prosequi is the mere act of the prose cuting attorney and no action of the court is had on it, the entry will not be an end of the proceedings, and for that reason would not warrant any action which could not be had before the proceedings were at an end. But when the court enters a judgment of discharge upon a nolle prosequi it seems to be a sufficient termination of the prosecution.
A discharge by the magistrate before any evidence was introduced is not a sufficient termination of the prosecution in the plain tiff's favor; Ward v. Reasor, 98 Va. 399, 36 S. E. 470 ; but the dismissal of a prosecution by a justice of the peace having jurisdiction, for failure of the prosecution to introduce evidence, is ; Graves v. Scott, 104 Va. 372, 51 S. E. 821, 2 L. R. A. (N. S.) 927, 113 Am. St. Rep. 1043, 7 Ann. Cas. 480; but there is no termination, technically, where a warrant for arrest has been issued and remains un served without judicial. termination of the proceedings; Mitchell v. Donanski, 28 R. I. 94, 65 Atl. 611, 9 L. R. A. (N. S.) 171, 125 Am. St. Rep. 717, 12 Ann. Cas. 1019. Where the accused fled from the jurisdiction before process could be served on him and has re mained absent, there is no termination of the proceeding in his favor ; Halberstadt v. Ins. Co., 194 N. Y. 1, 86 N. E. 801, 21 L. R. A. 293, 16 Ann. Cas. 1102.
The remedy for a malicious prosecution is an action on the case to recover damages for the injury sustained ; Luddington v. Peek, 2 Conn. 700; Plummer v. Dennett, 6 Greenl. (Me.) 421, 20 Am. Dec. 316 ; .Turner v. Walk er, 3 Gill & J. (Md.) 377, 22 Am. Dec. 329. See CASE. The elements of damage in this action are very vague. The jury may con sider the natural effect of the prosecution on reputation and feelings, the consequences of arrest,. loss of time, injury to property, and expense ; Parkhurst v. Masteller, 57 Ia. 474, 10 N. W. 864 ; Wanzer 52 Ill. 35; Newell, Mal. Pros. 494. If the prosecution was begun without probable cause, and per sisted in for some private end, punitive dam ages may be given; Cooper v. Utterbach, 37 Md. 282. See full article in 21 Am. L. Reg. N. S. 281. To be relieved from an action the defendant must rebut the prima facie proof of implied malice against him, by showing honest belief, grounded on probable and rea sonable cause; Cointement v. Cropper, 41 La. Ann. 303, 6 South. 127. It is sufficient if the facts or appearances are sufficient to induce n reasonable probability that the acts which constitute the crime have been done; Ex parte Morrill, 35 Fed. 261.
The defendant may explain to the jury the motives from which he acted; Heap v. Parrish, 104 Ind. 36, 3 N. E. 549; George v. Johnson, 25 App. Div. 125, 49 N. Y. Supp. 203; he may testify as to whether he was actuated by malice; Autry v. Floyd, 127 N. C. 186, 37 S. E. 208; Turner v. O'Brien, 5 Neb. 542; Sherburne v. Rodman, 51 Wis. 474, 8 N. W. 414; he may be asked whether he made the charge in good faith believing it to be true; Garrett v. Mannheimer, 24 Minn. 193; he may testify that he had no ill feeling towards the plaintiff ; Vansickle v. Brown, 68 Mo. 627; so a special officer of a railroad company who arrested a boy for being unlawfully upon the cars, may show that he was not actuated by ill will; Camp bell v. R. Co., 97 Md. 341, 55 Atl. 532.