One of the essential elements in every action for malicious prosecution is that the action should have been commenced without probable cause.55 Want of probable cause will not be inferred from the proof of malice, the two must concur.56 Where a person procures the arrest of another without probable cause, good faith and honest motives on his part are no defense.57

The question of the existence, or the want, of probable cause is determined by the facts as known to the prosecutor, at the time the prosecution is instituted.85 If there were other facts, not known to the prosecutor at the time, which would have shown the accused to be innocent, this cannot influence the question whether the prosecutor acted with probable cause; and on the other hand, the prosecutor cannot sustain his defense by the proof of facts not known to him at the time he acted. The question of probable cause is determined from the standpoint of the reasonably prudent and cautious man.59 "Some allowance will be made when the prosecutor is so injured by the offense that he could not likely draw his conclusions with the same impartiality and absence of prejudice that a person entirely disinterested would deliberately do; all that can be required of him is that he shall act as a reasonable and prudent man would be likely to do under like circumstances.60

53 Reynoldsl vs. DeFeer, 13 111. App.,

113; Neberzahl vs. Townsend, 61 How (N. Y.), 353.

54 Schippel vs. Norton, 38 Kan., 567;

16 Pac, 804. 55 Staples vs. Johnson, 25 App. Cas., 155; Daily vs. Donath, 100 111. App., 52; Shattuck vs. Si-monds, 191 Mass., 506, 78 N. E., 122; Scott vs. Dewey, 23 Pa. Super. Co., 396.

56 Anderson vs. Coleman, 53 Cal., 188; Danchy vs. Salisbury, 29 Conn., 124; Lewton vs. Hower, 35 Fla., 58, 16 S., 616; Kerr vs. Hyman, 6 Hawaii, 300.

57 Wilson vs. Bowen, 64 Mich., 133. 31 N. W., 81.

58 Barton vs. Kavanaugh, 12 La. Am., 332; Porter vs. Mack, 50 W. Va., 581, 40 S. T., 469: Stewart vs. Sonnehorn, 88 U.

a, 187.

The right to recover in an action for malicious prosecution is not based solely on the innocence of the plaintiff as to the charge for which he was prosecuted,61 nor is it decisive of the want of probable cause.62 Upon the proof of actual guilt, however, the existence of probable cause is conclusively presumed as a matter of law.63

The weight of authority is that when a person accused of crime is discharged at the preliminary hearing by the examining magistrate, who has jurisdiction merely to discharge the accused or bind him over for trial by a court of competent jurisdiction, and the accused subsequently brings an action against the prosecutor for malicious prosecution, evidence of such discharge makes a prima facie showing of want of probable cause for the prosecution, which it is incumbent upon the defendant to overcome. On the other hand, where, upon an information filed before a justice of the peace, a person is accused of an offense which is not indictable, but which the justice has jurisdiction to try and punish, the discharge or acquittal of the accused by the justice is not prima facie evidence of want of probable cause.64

59 Heyne vs. Blair, 62 N. Y., 19. 60 Spear vs. Hiles, 67 Wis., 361, 366,

30 N. W. 511 61 Davie vs. Wisher, 72 111., 262.

62 Hall vs. Suydam, 6 Barb. (N. Y.),

83. 63 Lancaster vs. McKay, 103 Ky.

616, 45 S. W., 887.

If the defendant, in the action for malicious prosecution, has submitted a full statement of the facts of the case to a competent attorney, and in good faith received advice justifying the prosecution which he instituted, this will, as a general rule, be held to show that he acted with probable cause, and is therefore entitled to immunity from damages.65 Some decisions, however, hold that the proof of such advice is not conclusive as to probable cause.66