
    Adams v. Lisher. on Appeal.
    
      LISHER sued Adams in an action for a malicious prosecution, in causing him to be prosecuted in the District Court of the United States for cutting timber on the public land. Plea, not guilty. On the .trial, the Circuit Court, at the plaintiff’s request, charged the jury as follows: — “That the record of acquittal of Lisher in the District Court, is prima facie evidence of the want of probable cause, and puts the defendant on the proof of probable cause.” Verdict and judgment for the plaintiff. The defendant appealed.
    
      Held, that Usher’s acquittal was not prima facie evidence of the want of probable cause for the prosecution against him; and that the instructions to the jury were therefore erroneous. 2 Stark. Ev. 913.—2 Saund. Pl. & Ev. 663.—Incledon v. Berry et al. 1 Camp. 203, note.—Purcell v. Macnamara, 9 East, 361.—Burley v. Bethune, 5 Taunt. 580 .
    
      P. Sweetser and W. W. Wick, for the appellant.
    
      C. Fletcher and H. F. Robison, for the appellee.
    
      
       “It is invariably necessary, in an action of this nature, (mal. pm.) to give some positive evidence, arising out of the circumstances of the prosecution, to show that it was groundless; it is insufficient to prove a mere acquittal, or even to prove any neglect or omission on the part of the defendant to make good his charge, for, as was observed in the case of Purcell v. Macnamara, 9 East, 361, the prosecution may have been commenced and abandoned from the purest and most laudable motives.” 2 Stark. Ev. 5th Amer. ed. 493.
    
   The judgment was reversed with costs.  