
    BLISS v. WYMAN et al.
    
    The defence that the defendant acted by advice of counsel, must show that such advice
    was given upon a full and fair statement of the facts.
    Appeal from the District Court of Eleventh Judicial District, County of El Dorado.
    This was an action brought by the plaintiff, Bliss, against the defendants, for damages sustained by reason of a malicious prosecution. The chief ground of the defence, was that the defendants had acted under the advice of counsel, in preferring a charge of grand larceny, for stealing cattle, against the plaintiff, and causing him to be indicted therefor. The testimony in the case discloses that they did state some of the most prominent facts to their usual counsel, who advised them to go before the district attorney and make the same statement to him, and act in the matter as he should advise; that they did go before the district attorney with their complaint, and, under his advice, had the plaintiff arrested and indicted. The evidence further shows that they neglected to disclose certain matters of which they had information, tending to establish the innocence of plaintiff—such as the notoriety of plaintiff’s possession of the cattle; his disclaimer of interest therein; his seeking advice as to the disposition he should make of the cattle; and his standing in the community.
    Plaintiff recovered judgment for two thousand four hundred and sixteen dollars, and defendants appealed.
    
      Winans & Hyer for Appellants.
    
      Sanderson & Hewes for Respondent.
   Terry, J.,

delivered the opinion of the Court—Burnett, J., concurring.

This is an appeal from a judgment in an action for malicious prosecution. There are no errors of law assigned. The appellants’ argument is addressed to the facts of the case, and these facts abundantly sustain the verdict.

Not only is it shown that there was no reasonable or probable cause for the prosecution instituted by defendants, but that defendants, having every reason to know the innocence of plaintiff, and his uniform good character, and after expressing themselves satisfied on this point, instituted from express malice.

In order that a party may avail himself of the defence of advice of counsel, he must show that such advice was given upon a full and fair statement of the facts within his knowledge. This does not appear to have been done in this case.

The appeal is without merit, and the judgment is affirmed, with ten per cent damages and costs.  