The following language of the judge’s charge was excepted to: “ And the question in the trial, as to that twenty-five dollars, would be whether it was paid over with fraudulent intent on the part of the plaintiff in this action.” It is argued that this language was used in such a way as to lead the jury to believe that the turning question, or one of them, on the trial of this action, was whether plaintiff in fact fraudulently paid the money to Osborne. A careful reading of the whole paragraph of the charge in which the language excepted to occurs fails to impress us that the defendants were, or could have been, prejudiced by such language. The trial judge was speaking about the action brought against plaintiff for embezzlement. That is so plain that an intelligent jury could not have misunderstood it. The opening words of the paragraph are, “ On the twenty-fifth day of last September, plaintiff was arrested on a warrant sworn out by defendants, charging him with the crime of embezzlement.” The facts upon which defendants based their charge are then stated. Then occurs the following: “As to that twenty-five dollars, the question would have been, on that trial, whether or not that was paid over fraudulently.” Later in the same paragraph, plainly intending to repeat what had theretofore been said, the language complained of occurs, in the following connection : “As I say to you, gentlemen, . . . the question in the trial, as to that twenty-five dollars, would be whether it was paid over with fraudulent intent.” The jury must have understood, as the fact was, that this referred to the issue in the embezzlement case.
Exception was taken to the use of the word “ reasonably,” instead of the word “ ordinarily,” in the following expression: “The court'instructs the jury that the mere belief that an innocent man is guilty of a crime is not, alone, sufficient to justify causing his arrest. The facts must be such as would justify an ordinarily intelligent and reasonably prudent per*180son in entertaining such, belief.” We are unable to perceive wherein this is subject to criticism. The learned trial judge followed very closely standard text writers on the subject. In Cooley, Torts, 182, the rule is stated thus: “ A mere belief that cause exists is not sufficient, for one may believe on suspicion and suspect without cause, or his belief may proceed from some mental peculiarity of his own; there must be such grounds of belief as would influence the mind of a reasonable person, and nothing short of this could justify a serious and formal charge against another.” Again, in Braveboy v. Cockfield, 2 McMul. 270, O’Neill, C. J., said, in effect: c The test is, anything which will create in the mind of a reasonable man the belief that the party is guilty is a probable cause.’ Again Shaw, C. J”., in Bacon v. Towne, 4 Cush. 217, expresses the rule thus: “ There must be such a state of facts as would lead a man of ordinary caution and prudence to believe and entertain an honest and strong suspicion that the person is guilty.” While by Tyndall, C. J-., in Broad v. Ham, 5 Bing. N. C. 722, it is stated thus: “ There must be reasonable cause, such as would operate on the mind of a reasonable man.” And again, by Mr. Justice Teunkey, in McCarthy v. De Armit, 99 Pa. St. 63, the rule is stated as follows: “ The belief must be that of a reasonable and prudent man. All that can be required of him is that he should act as a reasonable and prudent man would be likely to under the circumstances.” This language is also approved in McClafferty v. Philp, 151 Pa. St. 86. So, in Womack v. Fudikar, 47 La. Ann. 33, Beeaux, J., considering the same subject, said, “ It is well settled that the ground of belief must be such as would influence the mind of a reasonable person.” Without further discussion on this point, it will be seen that the words “ reasonable person ” and the words “ ordinarily cautious person ” are used synonymously in describing the degree of care that should be exercised in instituting criminal proceedings to avoid the charge of ma*181licious prosecution. The charge of the learned trial judge on this subject is free from error.
It is said that the court should have set aside the verdict as against the evidence, upon the ground that “ probable cause ” was conclusively established. This is based upon the evidence to the effect that the defendants made a full and complete statement of the facts to their attorney, that on such statement they were advised by such attorney that plaintiff was guilty, and that they honestly believed and acted upon such advice, in good faith, in instituting the prosecution. Such facts, established to the satisfaction of the jury or appearing conclusively from the evidence, are fatal to a recovery. Cooley, Torts (2d ed.), 212; Sutton v. McConnell, 46 Wis. 269; Stewart v. Sonneborn, 98 U. S. 187. But while the defendants testified that they made a full and complete statement of the facts to their attorney, and this was corroborated by such attorney, and that they acted upon his advice and in good faith, whether they did act in good faith, in fact, was a material question to be determined, and was disputed. Therefore, though the direct,evidence was to the effect that they made a full statement to counsel, received his advice, and acted in accordance therewith, still the fact of whether they acted honestly and in good faith, without any ulterior motive, was for the jury, if, on the whole case as made by the evidence, persons of .different minds might reasonably draw different inferences therefrom in respect to such question. Stewart v. Sonneborn, supra. That such was the condition of the case was the conclusion of the trial judge, and we are unable to say wherein he was wrong, or that there was an abuse of discretion in refusing-to set the verdict aside and grant a new trial on the ground that it is against the weight of evidence in respect to the facts constituting plaintiff’s right to recover.
Some other questions are presented by the record, but none, in our judgment, which require consideration; except *182that of whether the verdict was excessive. A motion was made to set it aside because it was the result of passion and prejudice. That fairly raises the question of whether it was excessive to such a degree as to warrant a reversal of the judgment on that ground. The damages assessed are $3,500. Plaintiff was not in actual confinement at all. He was in custody but about one hour. He was released upon depositing $10 and promising to appear in court on the following Monday. Ho examination was had, and no particular objection was made by defendants to his discharge. They simply held themselves in readiness to testify as witnesses. There were no special circumstances of aggravation. The case was only open to the assessment of $50 for expenses, general compensatory damages, and damages by way of punishment. Under these circumstances, it appears to us quite clear that the verdict is grossly disproportionate to the injury plaintiff received, and to any punishment that could be properly inflicted. Our attention is called to Ross v. Innis, 35 Ill. 187, as a precedent for such a recovery, but we perceive no parallel between the two cases. There the defendants were members of a large and wealthy mercantile copartnership. They caused the arrest of plaintiff on the charge of having embezzled $165. The matter was pressed to an examination before a magistrate, upon which plaintiff was discharged, it appearing that the charge was causeless. There were special aggravating circumstances, among which was the fact that the defendants declared, after the discharge, that plaintiff was guilty and that if any one inquired in regard to his character they would say he stole $165 and that he was a thief and a liar. The action was tried three times, each time resulting in a large verdict in favor of the plaintiff. Under such circumstances, the court determined that the last verdict ought not to be set aside as excessive. To cite precedents, this case is more like Cointement v. Cropper, 11 La. Ann. 303, where the ap*183pellate court cut the verdict of $1,000 to $500; also Phelps v. Cogswell, 10 Cal. 201, where the appellate court reversed a judgment for $3,500 as excessive, and ordered a new trial unless the plaintiff remitted all but $1,000. Ho larger verdict than $1,000 can be sustained on the evidence in this •case, and unless the plaintiff remits all but that sum a new trial must he granted.
By the Cowrt.— The judgment of the superior court is reversed, and the cause remanded for a new trial unless, within thirty days after the filing of the remittitwr, the plaintiff remits from the verdict all except the sum of $1,000, in which case the superior court is directed to render judgment in his favor for such sum, with costs taxed in such •court.