Opinion by
Mr. Chief Justice McCollum,This was an action for malicious prosecution to recover the damages sustained by a defendant in a prior proceeding commenced or carried on from a malicious motive, and without any probable cause therefor. Previous to the institution of this suit Bell was an employee of the Atlantic City Railroad Company for six years or more when he was selected by the company to be chief ticket agent at Camden, New Jersey, over its Atlantic City branch. He accepted the position tendered him and entered upon the performance of his duties at once. He continued in the discharge of them until November, 1892, when he was arrested by the defendant for forgery and embezzlement. He was placed in jail where he remained until he was released on bail. On November 15, he was brought before the magistrate who bound him over and demanded bail in $1,000, which he was unable to obtain until November 16 at noon, when he effected a release by securing the bail the magistrate required. On February 28, 1893, he was tried in the court of quarter sessions and acquitted.
It is not necessary at this time to enter upon a discussion of *181the testimony. It is sufficient to say that at the close of the testimony the learned judge of the court below directed the jury to find for the defendant. He evidently thought that what the defendant’s special policeman said and exhibited to the defendant’s attorney, together with the latter’s advice to arrest Bell for forgery and embezzlement, was sufficient to warrant the jury under proper instructions to render a verdict for the defendant in the case at bar. In this view of the law we cannot concur.
“ A resort to professional advice does not necessarily establish a conclusive presumption against malice and in favor of probable cause, and hence does not constitute an independent and substantive defense to an action for malicious prosecution. Such evidence is admissible, however, as tending to establish a defense. Whether or not the defense is established is a question of fact to be found by the jury from all the facts and circumstances taken in connection with such advice. Thus it is for the jury to determine whether the party has fairly and fully communicated to his counsel the facts within his knowledge, and used reasonable diligence to ascertain the truth, as also whether he acted in good faith upon the advice received from counsel: 1 Am. & Eng. Ency. of Law (2d ed.), pp. 906, 907.” See also Smith v. Walter, 125 Pa. 469, Leahey v. March, 155 Pa. 458, Davenport v. Lynch, 6 Jones Law (N. C.), 545, Wright v. Hanna, 98 Ind. 217, Brewer v. Jacobs, 22 Fed. Repr. 217, and Sharpe v. Johnstone, 59 Mo. 557.
The learned judge of the court below was in error in deciding as a question of fact that defendant submitted all the facts of the case to its counsel, and in not submitting to the jury, under all the evidence in the case, the disputed question whether or not the defendant used due diligence to ascertain the facts.
Judgment reversed with a venire facias de novo.