While this action is called in the bill of exceptions an action for malicious arrest, it is properly speaking an action for malicious prosecution. The plaintiff was duly arrested on a writ issued by a court having jurisdiction of the cause of action and of the parties. See cases cited in Jackson v. Knowlton, 173 Mass. 94. The burden of proof was on the plaintiff to prove that at the time the defendant procured the arrest he had no probable cause to believe that the plaintiff intended to leave the State. Legallee v. Blaisdell, 134 Mass. 473.
The principal question in the case is as to the refusal of the *107judge to instruct the jury, as requested by the defendant, that if the defendant laid the facts before his counsel and acted entirely upon his legal advice as to arresting or causing the arrest of the plaintiff, he was not liable. This states in a somewhat abbreviated form the rule which has long existed in this Commonwealth. Stone v. Swift, 4 Pick. 389, 393. Wills v. Noyes, 12 Pick. 324, 327. Olmstead v. Partridge, 16 Gray, 381, 383. Folger v. Washburn, 137 Mass. 60. Allen v. Codman, 139 Mass. 136, 138. Donnelly v. Daggett, 145 Mass. 314, 318. Monaghan v. Cox, 155 Mass. 487, and cases cited. Connery v. Manning, 163 Mass. 44. Of course to make the advice of counsel a defence the person consulting him must act in good faith, and he must make a full and honest disclosure of all the material facts within his knowledge and belief. If the judge had added these elements to the request, the defendant would have had no ground of exception, but it seems to us that it would be too narrow and technical a view to hold that this exception must be overruled because these elements were not added. The attention of the judge was called to the substantive defence of advice of counsel, and he should have given appropriate instructions upon the subject.
To refuse the instruction requested, and to instruct the jury that the defendant was responsible for the act of the attorney, would not be an instruction on the effect of the advice of counsel, and would tend to mislead the jury.
The bill of exceptions further states: “ The judge gave no further instructions upon the subject, but did instruct the jury that if the plaintiff made the statements to the bookkeeper and the defendant, which they testified to, and the jury believed that these statements gave the defendant reasonable cause to believe that the plaintiff intended to leave the State, then the defendant was justified in making the arrest, and the plaintiff could not recover.”
It would seem from this statement that the judge did not intend this to apply to the request made by the defendant’s counsel for a ruling as to the effect of the advice of counsel; and the statement says nothing about such effect. We do not see any ground for holding that the instructions given rendered the request immaterial.
*108The error of the judge in the court below seems to have been founded on the theory that the present action was not one for malicious prosecution ; but an examination of the cases above referred to shows that it was.
The other exceptions we are of opinion should be overruled.
The judge rightly excluded the evidence relating to the transaction of September 21. This was after the plaintiff had been released from arrest; and had no bearing upon the issue in the case.
The request as to the rule of damages was fully covered by the instructions given. Exceptions sustained.