delivered the opinion of the court, October 2nd 1882.
To maintain an action for malieious prosecution, the plaintiff must prove the prosecution to have been made without probable cause, and that the prosecutor was actuated by malice towards the plaintiff. Malice may be inferred from the want of probable cause; but if there be probable cause, it matters not that the prosecution be malicious. If the act be lawful the motives of the prosecutor will not be inquired into. Whether certain facts constitute probable cause, must be determined by the -court; but, whether such alleged facts exist, is for the jury to find. The law applicable to the case was correctly stated by the learned judge, and we discover no error in the admission of evidence.
The main question arises under the eleventh assignment. The plaintiff in error offered to prove, substantially, that he stated to the justice of the peace, before whom the prosecution was about to be instituted, the facts as he had heard them, and he was advised by the justice that they were sufficient upon which to base a criminal prosecution against the defendant in error. The evidence was rejected.
When a prosecutor fully and fairly submits to his counsel learned in the law all the facts which he knows are capable of proof, and is advised that they are sufficient to sustain a prosecution, and, acting in good faith on that opinion, does institute the prosecution, he is not liable to an action for malicious prosecution, although the opinion be erroneous. Shall the advice of a committing magistrate have the same effect? We think not. Justices of the peace are not required to be learned in the law. In fact, generally through the state they are not. They are not qualified by a course of study to give advice on questions of law. They do not pursue it as a profession. They are not charged with the duty of advising any person to commence a prosecution. They ought not to act as attorney or agent for one in regard to a prosecution he is about to institute before them. Their duties are judicial; they may in the discharge thereof reduce the substance of the complaint to writing-, in the form of an information of the prosecutor, then, they judicially determine whether the facts therein averred, be sufficient to justify the issuing of a warrant.
An educated business man may be much better qualified, than many inexperienced justices of the peace, to advise as to the law; yet I am not aware that the advice of such a person has ever been held to protect against damages for a malicious prosecution.
The conclusion at which we have arrived, is not in conflict with any decision of this court. It is the logical sequence of the rule declared in Walter v. Sample, 1 Casey, 275. In that *95ease, tbe prosecutor bad acted under tbe advice of a member of the bar. The protecting power of the rule extends no further than the advice of one learned in the' law. In an action for malicious prosecution, the defendant cannot be permitted to ?rove that he acted under the advice of a magistrate: Straus v. Young, 37 Md. 282; Olmstead v. Partridge, 82 Mass. 381.
There was no error in permitting the amendment after a trial on the merits.
Judgment affirmed.