volved, or the value of the property alleged to have been stolen.57 Indeed, it may be stated, with some degree of accuracy, as a general rule that whatever tends to show the motive or intent of the prosecutor in instigating or instituting the proceedings, unless within some particular rule of exclusion, is properly admissible on the question of malice.58 The defendant in those states in which he is permitted to testify in his own behalf is allowed to give direct evidence of his motives and purposes in the prosecution.59 So, he may show by other proper evidence that he acted in good faith, without malice, and upon probable cause.6°

§ 2480. Advice of counsel.-The fact that the defendant in instituting the proceeding complained of acted in good faith upon the advice of a disinterested and reputable attorney to whom he stated all the material facts known to him is generally held to constitute a complete defense,61 or at least to tend to do so. Evidence as to these

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facts, including the advice given by the attorney, is therefore relevant and admissible.62 The authorities, however, are not agreed as to whether such advice shows probable cause or more properly bears upon the question of malice. Some of them consider it as showing probable cause, others as showing or tending to show that there was no malice, and still others as bearing upon both questions. Indeed, as will be seen from the authorities already cited in the notes, it is sometimes said in the same jurisdiction in one case that such evidence is admissible upon the question of probable cause and in another upon the question of malice. It is not, perhaps, very important upon which matter the evidence is admissible except for one consideration, and that is that where malice is held to be a question of fact and probable cause a question of law, if the advice of counsel only goes to the question of malice there would be much more reason for holding that if there were other evidence of malice the jury might find that the prosecution was malicious notwithstanding the facts were all laid before counsel and his advice was acted upon, whereas if evidence of such advice shows probable cause it would generally be conclusive and constitute a complete defense if properly asked, obtained and acted upon.

65

Atlantic City R. Co., 58 N. J. L. 227, 33 Atl. 211; see also, note in, Ross v. Hixon, 46 Kans. 550, 26 Am. St. 143-147; but see, Hazzard v. Flury, 120 N. Y. 223, 24 N. E. 194; Brewer v. Jacobs, 22 Fed. 217; Shannon v. Jones, 76 Tex. 141, 13 S. W. 477; Lemay v. Williams, 32 Ark. 166; in some jurisdictions, however, it must also appear that he exercised reasonable diligence in making inquiries and learning the facts. See, Parker v. Parker, 102 Iowa 500, 71 N. W. 421; Manning v. Finn, 22 Neb. 511, 37 N. W. 314; Ahrens Mfg. Co. v. Hoeher, 106 Ky. 692, 51 S. W. 194.

62 Struby-Estabrook &c. Co. V. Kyes, 9 Colo. App. 190, 48 Pac. 663; Whitfield v. Westbrook, 40 Miss. 311; Collins v. Hayte, 50 Ill. 337, 99 Am. Dec. 521; Alexander v. Harrison, 38 Mo. 258, 90 Am. Dec. 431; see also, Terre Haute &c. R. Co. v.

Mason, 148 Ind. 578, 46 N. E. 332, and authorities cited in first note to this section.

63 Terre Haute &c. R. Co. v. Mason, 148 Ind. 578, 46 N. E. 332; Allen v. Codman, 139 Mass. 136, 29 N. E. 537; Genevey v. Edwards, 55 Minn. 78, 56 N. W. 578; Wuest v. American Tobacco Co., 10 S. Dak. 394, 73 N. W. 903; Kansas &c. Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521.

Brewer v. Jacobs, 22 Fed. 217; Glasgow v. Owen, 69 Tex. 167, 6 S. W. 527; Turner v. Walker, 3 Gill & J. (Md.) 377, 22 Am. Dec. 329; Emerson v. Cochran, 111 Pa. St. 86, 4 Atl. 498; see also, Paddock v. Watts, 116 Int. 149, 18 N. E. 518, 9 Am. St. 832, 836.

65 Kansas &c. Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521, 526, and note in 26 Am. St. 143, 144.

§ 2481. Evidence of character of parties.—As already shown, evidence of the bad reputation of the plaintiff, known to the defendant before he instituted or instigated the proceedings complained of in an action for malicious prosecution is admissible as tending to show that he had reasonable grounds or motives for so doing as well as upon the question of damages, and so, it seems, is evidence of good reputation admissible for the plaintiff. But the character of the defendant is not, ordinarily, in issue in such a case, and evidence thereof is generally inadmissible. Evidence of his bad character or reputation for truth and veracity may, however, be admissible to impeach his credibility as a witness, as in other cases.68

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§ 2482. Evidence of financial condition.-Evidence of the defendant's financial condition is competent upon the question of damages where punitive or exemplary damages may be recovered." It has also been held that in an action for malicious prosecution for an alleged fraudulent disposition of mortgaged property evidence that the plaintiff had a large amount of property is competent upon the question of probable cause.70 But evidence of the defendant's social position or family relations is not admissible.71

§ 2483. Damages and elements thereof.-The amount of damages is largely a question for the jury, under proper instructions,72 but damages that are too remote should not be included.73 The expense of the plaintiff in defending the proceedings complained of, so far as reasonable, may be recovered.74 Mental suffering is also an element

6 See § 2478; see also, Vol. 1, § 170. · 67 Rogers V. Lamb, 3 Blackf. (Ind.) 155; Vansickle v. Shenk, 150 Ind. 413, 417, 50 N. E. 381; Horne v. Sullivan, 83 Ill. 30; but compare, Scott v. Fletcher, 1 Overt. (Tenn.) 488; Goodrich v. Warner, 21 Conn. 432.

6 Goodrich v. Warner, 21 Conn. 432.

Sexson v. Hoover, 1 Ind. App. 65, 27 N. E. 105; Coleman v. Allen, 79 Ga. 637, 5 S. E. 204, 11 Am. St. 449; Spear v. Hiles, 67 Wis. 350, 30 N. W. 506; Winn v. Peckham, 42 Wis. 493; Peck v. Small, 25 Minn. 465, 29 N. W. 69; Weaver v. Page, 6 Cal. 581.

70 Reisan v. Mott, 42 Minn. 49, 43 N. W. 691, 18 Am. St. 489.

71 Renfro v. Prior, 22 Mo. App. 403.

72 Hiatt v. Kinkaid, 28 Neb. 721, 45 N. W. 236; Chapman v. Dood, 10 Minn. 350; Marks v. Hastings, 101 Ala. 165, 13 So. 297.

73 Fletcher v. Chicago &c. R. Co., 109 Mich. 363, 67 N. W. 330; Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; Hampton v. Jones, 58 Iowa 317, 12 N. W. 276; see also, Oldfather v. Zent, 14 Ind. App. 89, 41 N. E. 555.

"Murphy v. Larson, 77 Ill. 172; Krug v. Ward, 77 Ill. 603; Eastin v. Stockton Bank, 66 Cal. 123, 4 Pac.

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be a recovery

that may be considered in a proper case.75 So, there may for injury to the plaintiff's reputation and credit. If he was wrongfully deprived of his liberty" or his property was wrongfully seized these facts may also be considered as elements of damage. Exemplary or punitive damages may also be recovered in a proper case where actual malice is shown or the circumstances are such as to justify the award of such damages. As to the damages actually suffered by the plaintiff there cannot well be any mitigation.80 But, his previous bad reputation may generally be shown in mitigation because the injury or damages in such a case would probably not be so great.81 Evidence tending to disprove the malice is also competent in mitigation of punitive or exemplary damages.82

1106, 56 Am. R. 77; Slater v. Kimbo, 91 Ga. 217, 18 S. E. 296, 44 Am. St. 19; Lockenour v. Sides, 57 Ind. 360, 26 Am. R. 58; Wheeler v. Hanson, 161 Mass. 379, 37 N. E. 382, 42 Am. St. 408; Thurston v. Wright, 77 Mich. 96, 43 N. W. 860; Mitchell v. Davies, 51 Minn. 168, 53 N. W. 363; Rowland v. Samuel, 11 Q. B. 39, 63 E. C. L. 39; but see as to attorney's fees in some jurisdictions, Stewart v. Sonneborn, 98 U. S. 187; Sinclair v. Eldred, 4 Taunt. 7; Webber v. Nicholas, R. & M. 419, 21 E. C. L.

479.

75 Killebrew v. Carlisle, 97 Ala. 535, 12 So. 167; Davis v. Seeley, 91 Iowa 583, 60 N. W. 183, 51 Am. St. 356; Fagnan v. Knox, 40 N. Y. Super. Ct. 41; Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382, 42 Am. St. 408; McWilliams v. Hoban, 42 Md. 56.

76 Slater v. Kimbro, 91 Ga. 217, 18 S. E. 296, 44 Am. St. 19; Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382, 42 Am. St. 408; Hamilton v. Smith, 39 Mich. 222; Kennedy v. Meacham, 18 Fed. 312; see also, Sheldon v. Carpenter, 4 N. Y. 578, 55 Am. Dec. 301.

222; Cassinelli v. Cassinelli, 24 Nev. 182, 51 Pac. 252. Loss of time and interruption of business. Wilson v. Bowen, 64 Mich. 133 31 N. W. 81; Blunk v. Atchison &c. R. Co., 38 Fed. 311.

78 Gundermann v. Buschner, 73 Ill. App. 180; Newark Coal Co. v. Upson, 40 Ohio St. 17; Moffatt v. Fisher, 47 Iowa 473.

79 Parkhurst v. Masteller, 57 Iowa 474; McWilliams v. Hoban, 42 Md. 56; Cooper v. Utterbach, 37 Md. 283; Lytton v. Baird, 95 Ind. 349; Ellis v. Hampton, 123 N. Car. 194, 31 S. E. 473; Rice v. Miller, 70 Tex. 613, 8 S. W. 317, 8 Am. St. 630; Brown v. Master, 111 Ala. 397, 20 So. 344; Russell v. Bradley, 50 Fed. 515; see also, Ch. XCVII.

So See, Fenelon v. Butts, 53 Wis. 344, 10 N. W. 501; Wilson v. Young, 31 Wis. 594.

81 Fitzgibbon v. Brown, 43 Me. 169; O'Brien v. Frazier, 47 N. J. L. 349, 1 Atl. 465, 54 Am. R. 170; Rosenkrans v. Barker, 115 Ill. 331, 3 N. E. 93, 56 Am. R. 169; Bacon v. Towne, 4 Cush. (Mass.) 217.

"Hamilton v. Smith, 39 Mich. 597, 18 N. W. 375.

§ 2484. Meaning of term.-Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is thus founded on the distinction of sex. In another sense, it is a contract, according to the form prescribed by law, by which a man and woman, capable of entering into such contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and wife. The word also signifies the act, ceremony, or formal proceeding by which persons take each other for husband and wife.1 "As between the immediate parties, under the law, marriage is a civil contract; but as between them and the state, or organized society, marriage is more than a civil contract, it is a status or relation."

§ 2485. Burden of proof.-The rule is that where a marriage in fact is shown, the burden of proof is generally on the party assailing its validity. Thus, where the validity of a woman's second marriage