Weight, G. J.
The appellant claims'that this is an action on the case for a malicious prosecution. This is denied by the appellee, he claiming that it is technically, neither an action for a malicious prosecution, nor for false imprisonment, but a petition under the Code, to recover damages for both. [404]*404And this latter view appears to have been the one adopted by the court below; for, in addition to the modifications stated, it appears that the jury were told, that this “ was not necessarily to be considered an action for malicious prosecution, as known under our judicial tribunals prior to the Code, but is in fact for the recovery of such damages, if any, as plaintiff has sustained by the alleged wrongful acts of the' defendant.” Under the Code, we need not give this action a technical name, any more than we would any other action that might be brought. But that it must be governed by those rules and principles which obtain in actions for malicious prosecution, we have no doubt. The plaintiff seeks to make defendant liable for having maliciously, and without probable cause, charged and prosecuted him for a felony. The imprisonment and expenses incident to such a prosecution, go to enhance the damages of plaintiff — and yet these could not be recovered in this action, if the prosecution was not malicious. Turpin v. Renny, 3 Blackf. 211; Bodwell v. Osgood, 3 Pickg. 379; Morgan v. Hughes, 2 Term, 225; Winebiddle v. Porterfield, 9 Barr. 137. In all actions for malicious prosecution, the plaintiff must not only show malice, and a want of probable cause, but also that he was in some manner damaged, either in person by imprisonment, in reputation, or in property, by expenses incurred. 3 Blackstone, 126, note 21; Savil v. Roberts, 1 Salk. 18. The two last, almost necessarily result in all cases; the first, may or may not exist. Whenever the prosecution is shown to be malicious, and without probable cause, the accused, if imprisoned on the charge, is of course, falsely so, so far as the prosecutor is concerned. But there could be no recovery for such imprisonment, without establishing that the prosecution was malicious, and without probable cause.
We are, therefore^ unable to see why the court below, should have modified the defendant’s instructions as asked; or why it should have hesitated to recognize the action as being in the nature of case for a malicious prosecution. All the pleadings and record, show conclusively, that this is the character of the action, and the defendant must be made lia[405]*405ble under tbe rules applicable thereto, or not at all. To not so treat it, we can well see, would reasonably tend to mislead the jury. When the defendant asked an instruction manifestly correct, as applied to this action, it was so modified by the court, as to be applied to an action for a malicious prosecution, and jurors, unacquainted with legal terms, mightj therefore, well conclude that such was not the law, as applied to the case they were to determine. It was the duty of the court to determine the character of the action — by what rules and principles it was to be governed — and not leave it uncertain and confused, whether the law it was enunciating applied to the case at bar, or some other. , And, therefore, in thus modifying these instructions, there was error.
The appellant further assigns for error, the giving, and refusing to give, the instructions contained in the statement of the case. The appellee insists, that as the evidence is not set out, this court cannot know, but that the defendant’s instructions were properly refused, as not being applicable. We recognize the doctrine, that where correct instructions are refused, there should be sufficient to show their applicability, before such refusal will be held to be error. But in this case, we have the pleadings distinctly marking the issue to which these instructions point; the court gave an instruction, as asked by plaintiff, upon the same subject. ■ Their refusal is not placed, or pretended to be, upon the ground of their inapplicability, and under such circumstances, we would not feel justified in treating them as foreign to the case. But aside from this view, the plaintiff procured an instruction, asserting the converse of the proposition contained in those of defendant’s, which were refused; and if that given is incorrect, it will be just as fatal to the plaintiff, as to improperly refuse correct instructions. So that the question is fairly before us, whether the court erred in refusing and giving the instructions asked by the parties.
As to the first instruction, we think the language somewhat too general. To say that “if defendant acted under the advice of counsel, malice cannot be inferred from the want of probable cause” without qualification or limitation, is [406]*406not correct. He may have misrepresented tbe facts; he may not bave acted bona fide, under tbe counsel given, or be may bimself bave known or believed, that there was no cause for tbe prosecution; and if so, be would not be protected; and malice might be inferred from tbe want of probable cause, tbougb be did act under tbe advice of counsel.
■ We then reach tbe only remaining question in tbe case— tbe one most discussed by counsel, and perhaps most important to tbe respective claims of tbe parties. If tbe defendant made a fair statement of all tbe facts in tbe case to counsel, and acted upon tbe advice given upon such statement, is be liable, if that opinion should be erroneous or unwarranted ? Aside from authority, this court would not be united on this question. We bave no doubt, however, but that tbe decided current of authorities, sustains tbe position assumed by appellant, and we shall so bold. Where a party lays all tbe facts before counsel, before beginning proceedings, and acts bona fide, upon tbe opinion given by such counsel, tbougb that opinion is erroneous or unwarranted, be is not liable to this action. This is tbe general expression of tbe rule. If, however, tbe defendant misrepresents tbe facts to such counsel; if be does not act in good faith under tbe advice received; if be does not bimself believe that there is cause for the prosecution or action; if counsel and client act in bad faith, in originating and urging tbe prosecution ; be will not be protected, and in such cases tbe integrity or bona fides of bis conduct, is a question of fact for the jury. Snow v. Allen, 1 Stark. 502; Ravenga v. Macintosh, 2 Barn. & Cres. 693; Hall v. Suydam, 6 Barbour, 84; Blunt v. Little, 3 Mason, 102; Stone v. Swift, 4 Pick. 389; Thompson v. Massey, 3 Greenl. 305; Williams v. Van Metre, 8 Mo. 339; Tanner v. Walker, 3 Gill & John. 378; Stevens v. Fasset, 27 Maine, 207; Wills v. Noyes, 12 Pick. 324; Hall v. Hawkins, 5 Hemph. 357; Sommer v. Wilt, 4 Serg. & R. 19; Wood v. Weire et al., 5 B. Mon. 544; 5 Greenl. Ev. § 459.
As this case must go back fox retrial, we state briefly some of the general rules that should govern tbe decision of it, and like cases. To sustain this action, as already be[407]*407fore stated, plaintiff must show that the prosecution originated in the malice of the prosecutor, and without probable cause. To prove express malice even, is not sufficient, unless the want of probable cause is also shown.
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Weight, G. J.
The appellant claims'that this is an action on the case for a malicious prosecution. This is denied by the appellee, he claiming that it is technically, neither an action for a malicious prosecution, nor for false imprisonment, but a petition under the Code, to recover damages for both. [404]*404And this latter view appears to have been the one adopted by the court below; for, in addition to the modifications stated, it appears that the jury were told, that this “ was not necessarily to be considered an action for malicious prosecution, as known under our judicial tribunals prior to the Code, but is in fact for the recovery of such damages, if any, as plaintiff has sustained by the alleged wrongful acts of the' defendant.” Under the Code, we need not give this action a technical name, any more than we would any other action that might be brought. But that it must be governed by those rules and principles which obtain in actions for malicious prosecution, we have no doubt. The plaintiff seeks to make defendant liable for having maliciously, and without probable cause, charged and prosecuted him for a felony. The imprisonment and expenses incident to such a prosecution, go to enhance the damages of plaintiff — and yet these could not be recovered in this action, if the prosecution was not malicious. Turpin v. Renny, 3 Blackf. 211; Bodwell v. Osgood, 3 Pickg. 379; Morgan v. Hughes, 2 Term, 225; Winebiddle v. Porterfield, 9 Barr. 137. In all actions for malicious prosecution, the plaintiff must not only show malice, and a want of probable cause, but also that he was in some manner damaged, either in person by imprisonment, in reputation, or in property, by expenses incurred. 3 Blackstone, 126, note 21; Savil v. Roberts, 1 Salk. 18. The two last, almost necessarily result in all cases; the first, may or may not exist. Whenever the prosecution is shown to be malicious, and without probable cause, the accused, if imprisoned on the charge, is of course, falsely so, so far as the prosecutor is concerned. But there could be no recovery for such imprisonment, without establishing that the prosecution was malicious, and without probable cause.
We are, therefore^ unable to see why the court below, should have modified the defendant’s instructions as asked; or why it should have hesitated to recognize the action as being in the nature of case for a malicious prosecution. All the pleadings and record, show conclusively, that this is the character of the action, and the defendant must be made lia[405]*405ble under tbe rules applicable thereto, or not at all. To not so treat it, we can well see, would reasonably tend to mislead the jury. When the defendant asked an instruction manifestly correct, as applied to this action, it was so modified by the court, as to be applied to an action for a malicious prosecution, and jurors, unacquainted with legal terms, mightj therefore, well conclude that such was not the law, as applied to the case they were to determine. It was the duty of the court to determine the character of the action — by what rules and principles it was to be governed — and not leave it uncertain and confused, whether the law it was enunciating applied to the case at bar, or some other. , And, therefore, in thus modifying these instructions, there was error.
The appellant further assigns for error, the giving, and refusing to give, the instructions contained in the statement of the case. The appellee insists, that as the evidence is not set out, this court cannot know, but that the defendant’s instructions were properly refused, as not being applicable. We recognize the doctrine, that where correct instructions are refused, there should be sufficient to show their applicability, before such refusal will be held to be error. But in this case, we have the pleadings distinctly marking the issue to which these instructions point; the court gave an instruction, as asked by plaintiff, upon the same subject. ■ Their refusal is not placed, or pretended to be, upon the ground of their inapplicability, and under such circumstances, we would not feel justified in treating them as foreign to the case. But aside from this view, the plaintiff procured an instruction, asserting the converse of the proposition contained in those of defendant’s, which were refused; and if that given is incorrect, it will be just as fatal to the plaintiff, as to improperly refuse correct instructions. So that the question is fairly before us, whether the court erred in refusing and giving the instructions asked by the parties.
As to the first instruction, we think the language somewhat too general. To say that “if defendant acted under the advice of counsel, malice cannot be inferred from the want of probable cause” without qualification or limitation, is [406]*406not correct. He may have misrepresented tbe facts; he may not bave acted bona fide, under tbe counsel given, or be may bimself bave known or believed, that there was no cause for tbe prosecution; and if so, be would not be protected; and malice might be inferred from tbe want of probable cause, tbougb be did act under tbe advice of counsel.
■ We then reach tbe only remaining question in tbe case— tbe one most discussed by counsel, and perhaps most important to tbe respective claims of tbe parties. If tbe defendant made a fair statement of all tbe facts in tbe case to counsel, and acted upon tbe advice given upon such statement, is be liable, if that opinion should be erroneous or unwarranted ? Aside from authority, this court would not be united on this question. We bave no doubt, however, but that tbe decided current of authorities, sustains tbe position assumed by appellant, and we shall so bold. Where a party lays all tbe facts before counsel, before beginning proceedings, and acts bona fide, upon tbe opinion given by such counsel, tbougb that opinion is erroneous or unwarranted, be is not liable to this action. This is tbe general expression of tbe rule. If, however, tbe defendant misrepresents tbe facts to such counsel; if be does not act in good faith under tbe advice received; if be does not bimself believe that there is cause for the prosecution or action; if counsel and client act in bad faith, in originating and urging tbe prosecution ; be will not be protected, and in such cases tbe integrity or bona fides of bis conduct, is a question of fact for the jury. Snow v. Allen, 1 Stark. 502; Ravenga v. Macintosh, 2 Barn. & Cres. 693; Hall v. Suydam, 6 Barbour, 84; Blunt v. Little, 3 Mason, 102; Stone v. Swift, 4 Pick. 389; Thompson v. Massey, 3 Greenl. 305; Williams v. Van Metre, 8 Mo. 339; Tanner v. Walker, 3 Gill & John. 378; Stevens v. Fasset, 27 Maine, 207; Wills v. Noyes, 12 Pick. 324; Hall v. Hawkins, 5 Hemph. 357; Sommer v. Wilt, 4 Serg. & R. 19; Wood v. Weire et al., 5 B. Mon. 544; 5 Greenl. Ev. § 459.
As this case must go back fox retrial, we state briefly some of the general rules that should govern tbe decision of it, and like cases. To sustain this action, as already be[407]*407fore stated, plaintiff must show that the prosecution originated in the malice of the prosecutor, and without probable cause. To prove express malice even, is not sufficient, unless the want of probable cause is also shown. So that the want of probable cause cannot be inferred from express malice; but, on the other hand, malice may be implied from the want of probable cause. Numerous definitions have been given to the term u probable cause,” as used in this action, but perhaps the clearest is to be found in Weems v. Duport et al., 3 Wash. C. C. 31, where it is defined to be, a reasonable ground'of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged. See upon this subject, and the other rules above stated: Davis v. Cook, Nov. T. 1852; and also, Johnson v. Sutton, 1 Term, 493; Taylor v. Williams, 2 B. & A. 857; Musgrove v. Newell, 1 Mees. & Wels. 585; Wilmarth v. Mountfort, 4 Wash. C. C. 80; Foshay v. Furguson, 2 Denio, 617; Ulmer v. Leland, 1 Greenlf. 135; Wills v. Noyes, 12 Pickg. 324; Adams v. Lesher, 3 Blackf. 241; Murray v. Long, 1 Wend. 140; Blunt v. Little, 3 Mason, 112; Turner v. Walker, 3 Gill & Johns. 377; Stone v. Stephens, 12 Conn. 219; Carrico v. Inednun, 1 A. K. Marsh. 224; Johnson v. Chambers, 11 Iredell, 287; Hall v. Suydam, 6 Barb. 84; Broad v. Horn, 5 Bingham (N. C.), 722.
It is also well settled, that the question of probable cause, is a mixed one of fact and law, involving two distinct considerations, to be determined by two different tribunals. The sufficiency of the circumstances to constitute probable cause, is a question of law for the court; and the evidence of the circumstances, is for the determination of the jury. Weems v. Duport et al., 3 Wash. C. C. 31. Malice is, in all cases, a question of fact for the jury, and may be either express or implied. Mitchell v. Jenkins, 5 Barn. & Adol. 588, Newell v. Downs, 8 Blackf. 523.
Judgment reversed.