delivered the judgment of the Court. To maintain this action the plaintiff must prove malice and a want of probable cause. The former may be inferred from the latter. 2 Stark. Ev. 915 ; Farmer v. Darling, 4 Burr. 1971 ; Sutton v. Johnstone, 1 Th. 518. Malice is any wrong or unjustifiable motive. Of the existence of this the want of probable cause is not only evidence, but very strong evidence. He who will prosecute his neighbour for a crime of which he has no reason to believe him to be guilty, surely cannot be influenced by private friendship, a love of justice or any other justifiable motive.
The question of probable cause is a mixed question, partly of law and partly of fact. But not, as in many cases, so combined as to blend the duties of the court and jury. What facts constitute probable cause, is a question for the court. Whether those facts exist, in each particular case, is a ques lion for the jury. The jury must weigh the evidence and ascertain what facts are proved, and the court must determine the inference of law from them.
There is no doubt that the facts of which evidence was offered, and which, the jury were instructed, amounted to probable cause, were such as would induce a candid and intelligent man, in the defendant’s situation, to believe the plaintiff to be guilty of the crime for which he was prosecuted. One circumstance is very strong, if not decisive, in favor of the defendant. He who honestly and fairly takes the advice of counsel, is justified in following it. Ravenga v. Mackintosh, 2 Barn. & Cressw. 693 ; Stone v. Swift, 4 Pick. 389.
The return on the original writ was admissible, with the other evidence, and would have been without it. We know of no way to prove an attachment of property, but by the *12officer’s written return on his precept. It is this writing which perfects, if it does not constitute the attachment. This is especially the case in relation to real estate. The officer may seize personal property, hut unless he make a proper statement of it in writing on a precept, it cannot be deemed an attachment. The right of the officer and his servants to hold the property attached, is perfect, before the return of the precept to the office where it is returnable, and unless relinquished will continue till the return day. If it be not returned at all, the attachment will be dissolved. But the officer is allowed till the return day to make his return, and any delay, within that time, will not invalidate the attachment. And when the suit is settled before court, an omission to make any return of the writ, will not render a prior legal attachment invalid ab initio. It is not an uncommon or inconvenient practice for the officer to deliver the writ to the plaintiff’s attorney, instead of the clerk or magistrate to whom it is returnable. If the suit be compromised in any way, the action is not entered and the writ remains in the possession of the attorney. And no evil or inconvenience results from this practice.
Of the admissibility of the card which was posted in the store where the defendant was employed, we have entertained doubts. It was offered upon the ground that it was posted up before the attachment of the beer pumps and was objected to on account of its irrelevancy. Whether the plain tiff placed it in the shop or not, as he was often there, he must be presumed to have seen it, and if so, to have assented to the truth of its contents. Upon the question of the ownership of these goods, as evidence of property in the plaintiff, it would certainly be inadmissible. But upon the question of probable cause, as having some tendency to induce the defendant to believe that the plaintiff owned the pumps, we are inclined to think it was admissible.
The question of its admissibility must be decided upon the facts made known to the court at the time when it was offered. The evidence afterwards introduced by the plaintiff, tending to show that the card was not posted up till after the larceny was supposed to have been committed, could not affect the correctness of the previous decision. It might render the *13evidence improper; but all that the Court could then do would be to instruct the jury, if they believed the fact attempted to be proved, to disregard the evidence. This piece of evidence was very light, and probably had no influence upon the minds of the jury. Even if improperly admitted, it would be a very slight cause for a new trial.
Judgment on the verdict.