
    SOLOMON K. LALAKEA AND MOLLIE P. LALAKEA v. HERBERT H. BAKER AND DOROTHY E. BAKER.
    No. 4047.
    Filed July 8, 1959.
    Decided July 24, 1959.
    Rice, C. J., Stainback and Marumoto, JJ.
   Per Curiam.

Petition for rehearing is denied without argument. All of the points raised in the petition have been adequately briefed and argued by the parties and fully considered by the court. The principal point raised in the petition is that this court erred in holding that "The reasons for the discontinuance were immaterial, so long as they did not constitute admission of want of probable cause.” The court’s position finds support in the following authorities: Nicholson v. Roop (N.D.), 62 N.W. (2d) 473, 43 A.L.R. (2d) 1031; 34 Am. Jur., Malicious Prosecution, § 46; 54 C.J.S., Malicious Prosecution, § 19. In Nicholson v. Roop, it is stated: "The plaintiff in a case of malicious prosecution has the burden of proving both lack or want of probable cause and malice, and if probable cause is shown, then the question of malice becomes immaterial, because no amount of malice, if there be probable cause, will render the defendant liable.” That case was decided in the same jurisdiction that decided Kolka v. Jones, 6 N.D. 461, 71 N.W. 558.

C. Nils Tavares and Edward Berman for the petition.  