concur in the judgment of reversal herein on the ground that, assuming as true the strongest case which on a fair consideration of evidence is made out against the defendants, there is no want of probable cause for the course which they pursued.
I agree that in a proper case, an.action such as the one before us can be maintained against an attorney-. But it cannot in my opinion be held, that an attorney who is told by his client that a note is due and unpaid, is guilty of the malicious prosecution of a suit, when he brings an action on the note against its maker, though he has been told by the maker that he has paid the note. The law does not impose on the attorney the determination of any such case. Nor will it hold him guilty of a derilection of duty or trespass on the rights of others, if he determine to act, and does act, in accordance with the statement of his client and constituent. Such, I understand, is the case made by the evidence against the defendant Hogan.
As to the bank, its responsibility is made out through the alleged fault of its president and servant. As I read the evidence in the case, the utmost that can be said in regard to his relation to the note sued on is, that it was left in doubt whether *129the bank had the right to recover on the note or not. Under such circumstances, when he directed the suit to be brought, he was acting in the line of his duty, and was conducting himself as a faithful servant should have acted. Of such conduct, neither malice nor want of probable cause can be predicated.