I am unable to agree with Mr. Justice Williams, as I think that upon the undisputed evidence, and assuming that every, fact testified to by the plaintiff and his witnesses is true, not only does the plaintiff fail to show want of probable cause, but the testimony is overwhelming that the defendant had probable cause to believe and did actually believe that the plaintiff was guilty of - the crime with which he was charged. It is undisputed that the defendant' had a litigation with the elevated railroad, and upon that litigation the plaintiff was called as a witness to testify as to the character*of the defendant for truth and veracity. On cross-examination, when asked as to the persons from whom he had heard remarks to justify Ms statement as to defendant’s character, he specified five indi*479Viduals as those who had made statements as to defendant’s character. It was for the testimony as to what one of such individuals said that the plaintiff was charged with perjury. After this testimony hy the plaintiff was given, the defendant went to each of the five, individuals and was assured hy each of them that the story was false, and four of the five individuals testified under oath to the falsity of the plaintiff’s statement. Upon cross-examination, at the time he gave his testimony, the plaintiff said that he would harm the defendant if he had a chance. And it appeared that upon the summing up of the testimony before the commissioners, Hr. Allan, who was then counsel for the defendant, and who is now counsel for the plaintiff, stated to the commissioners that the plaintiff was guilty of perjury and should be punished for it.
The plaintiff was a relative of the defendant’s, and, so far as appeared, was a volunteer witness before the commissioners, anxious to do the defendant an injury. And he having testified thus to communications received from five individuals about the defendant, where each of the five individuals denied the truth of his story, four of them backing such denial up by their oaths, it seems to me entirely clear that defendant was fully justified in believing that the story which the plaintiff told was false, and that he had been guilty of the perjury charged.
The law does not require a man to have in his possession all of the evidence necessary to convict a person of a crime before he makes a charge. If so, the rule as to probable cause would have no existence, for, if a person had competent legal evidence sufficient to convict before he made the charge, a conviction would always follow, and thus there could be no action for malicious prosecution. What is required is that the defendant should have probable cause to believe the plaintiff guilty, and that he did believe him guilty; and, unless it is shown that the defendant did not have such probable cause, the action will not lie.
The defendant thus having the - sworn statement of four of the five individuals contradicting plaintiff’s testimony, the defendant consulted Hr. Allan, who had stated before the commissioners that the plaintiff was guilty of perjury, as to whether or not he should prosecute the plaintiff; and, according to the testimony submitted by the plaintiff, Hr. Allan advised him that he had not probable *480cause to hold him guilty. The defendant subsequently went to Mr. Johnson, who had been an assistant district attorney in an adjoining county, and asked his advice. Mr. Johnson advised him that the plaintiff was guilty of perjury, and that the evidence was sufficient to convict him. Mr. Johnson then went with the defendant to submit the papers to Mr. McIntyre, one of the assistant district attorneys of this county, who, after considering the matter at a second interview, advised defendant to procure a warrant from a police magistrate. In pursuance of this advice from one of the principal prosecuting officers of the county, and Mr. Johnson, his legal adviser, the defendant made the affidavit which he did and presented it to the magistrate. Mow, that affidavit was introduced in evidence and every fact stated therein is absolutely true and conceded to be true by the plaintiff, and upon that affidavit the warrant for the arrest of the plaintiff was issued.
If there is any obligation upon a person who actually believes and has good reason to believe that a crime has been committed to inform the police officers and magistrates of the facts within his knowledge, certainly this defendant cannot be held liable for doing what he did. The fact that he thought it safer to follow the advice of Mr. Johnson and Mr. McIntyre, one of the leading public prosecutors of this county, as to the guilt of the defendant, rather than the advice of Mr. Allan, whose advice was in conflict with his statement which he had made in summing up before the commissioners,, is certainly no evidence to justify a finding that this defendant did not believe the plaintiff guilty;, and upon these facts he most certainly had probable cause to believe him guilty.
The rule is well settled and conceded by Mr. Justice Williams' that upon the undisputed facts and the version given by the plaintiff of the disputed facts, taken together, a question of law is presented to the court as to whether or not the defendant had probable cause for believing in the plaintiff’s guilt, and whether he did actually believe him guilty, and that unless it appears from such evidence that there was such a want of probable cause for belief in the plaintiff’s guilt, the court is bound to direct a verdict for the-defendant. I think that not only was there an absence of proof of.' want of probable cause in this ease, but that the evidence clearly established that the defendant had probable cause to believe, the *481plaintiff gnilty of the offense with which he was charged, and that-the complaint was rightfully dismissed.
The judgment should be affirmed, with costs.
O’Brien, J., concurred.
Judgment and order reversed and new trial ordered, with costs, to appellant to abide event.