Crocker, 24 Pick. 81; Burton v. St. Paul, M. & M. By. Co., 22 N. W. Rep. 300; Baldwin v. Weed, 17 Wend. 224; Kidder v. Parkhurst, 3 Allen, 393.
In order to make the advice of counsel available as a defense, the defendant must show that he communicated to him all the facts which he knew, or by reasonable diligence could have known, bearing upon the guilt or innocence of the accused, even though the defendants supposed that some of the facts were not material. 1 Ill. Torts, 503; Winker v. Hotchkiss, 62 Ill. 107; Burris v. North, 64 Mo. 426; Ames v. Rathbun, 55 Barb. 194; Fisher v. Forrester, 33 Pa. St. 501; Hill v. Palm, 38 Mo. 13; Sharpe v. Johnston, 59 Mo. 557; Thompson v. Lumley, 50 How. 105; Faynan v. Knox, 66 N. Y. 525; Bell v. Pearcy, 5 Ired. 83; Munns v. Dupont, 1 Amer. Lead. Cas. 214; Cooley, Torts, 183; Turner v. Ambler, 10 Q. B. 252; Galloway v. Stewart, 49 Ind. 156.
Reed, J. The plaintiff and all the defendants except S. D. Potter reside in Jones county. Potter is a resident of Greene county. In June, 1874, Potter purchased about 50 head of calves in Jones county, which he drove to his farm in Greene county. The defendant Foreman claimed that four of the number belonged to him, and that they had been stolen from him, and he instituted a suit for their recovery before a justice of the peace in Greene county, and, on the trial, he established his right to them. Potter claimed that he had purchased said calves from plaintiff, and an indictment was subsequently returned by the grand jury, in which he was accused of the larceny of the property; but, upon the trial of the indictment, he was acquitted. He then instituted this suit, alleging that the defendants had conspired together to institute said prosecution, and that it was commenced maliciously, and without probable cause.
1. The first point urged by counsel in argument in this court is that, upon the undisputed facts of the transaction, as shown by the evidence given upon the trial, there was probable cause for the institution of the prosecution, and that the verdict is therefore without support. The question whether there was probable cause for the commencement of the prosecution is what is denominated a mixed question of law and fact. If there are no facts in dispute, the question is for the court; but, if there is a controversy as to the facts, it should be submitted to the jury. Cooley, Torts, 181; Center v. Spring, 2 Iowa, 393.
Plaintiff has always admitted that he sold and delivered to Potter seven of the calves, which the latter drove to Greene county. In October, 1874, Foreman visited Potter’s place, and, on his return to Jones county, he informed plaintiff that he had found four calves which had been stolen from him in Potter’s possession, and that the latter claimed that he had purchased them from plaintiff, and he demanded payment for them. In a few days afterwards he again called upon him, accompanied by Potter, and the latter stated to plaintiff that the four calves which Foreman claimed (and which he had then recovered in the proceeding before the justice) were of the number of those sold him by plaintiff. In neither of these interviews did plaintiff make any question as to the identity of the calves claimed by Foreman with those sold by him to Potter, and in the last interview he settled with the parties, and gave Potter his note for their value. He, in effect, and perhaps in express terms, admitted that he had in possession, and had sold to Potter, the calves which had been stolen from Foreman; but this admission was based on the representations of Potter as to their identity. In both of the interviews he claimed to have purchased them from a man who was a stranger to him, and who stated that his name was Smith. He stated to them that on the day before he sold the calves to Potter he was in the store of Coppees & Derr, in Olive, and that while there he inquired of the proprietors of the store whether they knew of any cattle for sale, and that the man Smith was
