(concurring specially) : This is an appeal from a judgment against the plaintiff in an action to recover $5,000 for malicious prosecution. It appears that in 1914 at Carrington, the plaintiff and one Olson were engaged as partners in running a general automobile garage business. In August, 1914, to secure $1,315, they gave to the bank a mortgage on three automobiles, one office safe, a roll-top desk, and a lot of other property. The mortgage debt was represented by, four promissory notes, all of which became due in September, 1914,, except one note for $600, due in September, 1915; but in September, 1914, the total debt was liquidated and reduced to the sum of $40.60. Then Olson took one of the cars to Medina, North Dakota, and about, *438the 1st of November Bhoads took one car and started on a trip to St. Louis, leaving in the garage across the street from the bank a car worth $150. Newberry, the cashier, knew of this car and knew that it was ample security for the balance, $40.60. He knew that he could turn the car into cash without delay. Yet, when Bhoads had got to northern Iowa, defendant Newberry went to a justice of the peace and swore to a complaint charging that on November 1, 1914, in Foster county, Bhoads did commit the crime of wilfully and feloniously removing from Foster county an automobile on which he knew there was a mortgage lien for over $40. On that complaint a warrant was issued for the arrest of Bhoads. The sheriff went to Iowa, arrested Bhoads, brought him back, put him in jail, where he was imprisoned for a month and then discharged.
The defense was that the warrant was sworn out in good faith and on the advice of the state’s attorney. However, it does not appear that the state’s attorney was fully advised that the mortgage debt had been reduced from $1,315 to $40.60, and that the car across the street from the bank was ample security for the small balance, and that the car in possession of Olson at Medina was worth ten times the balance. These were matters of the utmost importance, because the security was so ample and so accessible there was no possible reason for thinking that Bhoads had taken his car to Iowa to defraud the bank. If the car had been completely destroyed, the security would have been good for ten times the sum due the bank. Hence, there was no excuse for the criminal prosecution.
The purpose of a mortgage and of statutes relating to chattel mortgages is to secure the payment of an honest debt, and not to make it dangerous for a person to use his property. The automobile is made and used for rapid transit and for long drives, and its value would be greatly impaired if there were any danger in crossing state and county lines.
In this case there was not a fair trial. The record shows several gross errors manifestly prejudicial to the plaintiff. In the charge of the court it is said:
. Gentlemen: The plaintiff must prove to your satisfaction by a fail-preponderance of evidence: (1) That a criminal prosecution was instituted against the plaintiff; (2) that the defendants in this action in*439stituted or procured the institution of the prosecution; (3) that said criminal prosecution was terminated by an acquittal or a discharge of the plaintiff before the commencement of the action. These matters were all proved by record evidence, and were not in dispute. Hence, there was no reason for submitting them as matters in dispute.
Then it was said by the court: I charge that if the plaintiff is guilty of the offense which was charged against him, that is a- complete ■defense. Now that was error of the grossest kind. The plaintiff was not on trial for any offense, and there was no evidence whatever to show that he was guilty. On the contrary, the evidence showed clearly that there never was any reason for thinking him guilty. . .
Then Mr. Craven, the state’s attorney, was sworn, and against objection he was permitted to answer a question concerning his belief as to the probable guilt of Ehoads when the warrant was issued. His answer was: “I believed it then and I still do.” And thus the belief of the prosecuting attorney was thrown into the scale against Ehoads. The error was about as gross as if the judge himself had given similar testimony.
Then the court received in evidence the original summons and complaint in this action, with a notice of an excessive lien claimed by the attorneys. The only purpose of that was to prejudice the jury, and the same is true of all the other testimony regarding one Maloney and his checks and his conduct.
The court also erred in admitting in evidence the made-up record of the justice of the peace, which was in effect that while he found the defendant not guilty, he thought him guilty.
In a suit for malicious prosecution it was well to remember the terms “malice” and “maliciously” import a wish to vex, annoy, or injure another person or an intent to do a wrongful act, established either by proof or presumption of law. Comp. Laws, § 10,360. Good faith or fool innocence does not justify a wrongful act.
Every person is bound to abstain from injuring the person or property of another, or infringing upon any of his rights. Comp. Laws, § 5942, 26 Cyc.
Judgment reversed and new trial ordered.
*421Note. — On acquittal or discharge on a criminal charge as evidence of want of probable cause in an action for malicious prosecution, see notes in 64 L.R.A. 475 and 3 L.R.A.(N.S.) 929.
On advice of counsel as defense to action for malicious prosecution, see notes in 18 L.R.A. (N.S.) 49 and 39 L.R.A. (N.S.) 207.
On advice of counsel as defense in action for malicious prosecution, see note in 9 Am. St. Rep. 837.