officials in response to such statements, if | found that he knew, that it was impossible they were made as the plaintiff testified, to make an accurate survey of the land in were important and material. The defendant question, or that counsel were otherwise inrelated no part of that conversation to Mr. formed of that fact, or the fact that the Bennett, but he testified that he informed plaintiff had stated to the defendant, in the Mr. Griggs that the defendant had said that presence of the register and receiver of the he would hold the land where his improve- land office, that he would not recognize the ments were if he had to split a 40 to do so. Gatchell survey, and that he claimed as his Mr. Griggs, on the contrary, testified that homestead the land which he was occupying he was not informed of the fact that the and had improved. Nor did it appear that plaintiff had so stated, and that he did not the defendant informed either counsel that hear of it until the trial of this case. If the the receiver of the land office had said, in defendant had stated the fact developed by his presence, to the plaintiff that the latter's the conversation that the plaintiff claimed, homestead was where he claimed it to be not only that the description of his home- until proven differently by the government, stead as entered included the land in con- and that he need not worry about his hometroversy, but also that, regardless of that stead at all. It is true that the defendant in description, he claimed this land which he his testimony denied that the receiver had had occupied and improved as part of his made such statement in the conversation rehomestead, and the right to hold the same, ferred to; but the truth of the matter was a if necessary to split 40's to do so, we would question for the jury to determine; and we not be inclined to hold that it was necessary think if such statement should be found to for him to repeat to counsel the words of the have been made it was an important fact conversation, or even state that the conver- which ought to have been communicated to sation had occurred. In the opinion of a counsel, for it would have a tendency to show majority of the court, if found by the jury the plaintiff's good faith in cutting the hay, that the plaintiff had so claimed, and that and his belief as to his right to do so, which the defendant knew it, the fact was material the defendant had been informed was the under the circumstances, and ought to have main thing to be considered in determining been communicated to counsel. The defend- whether the criminal complaint would hold. ant also testified that he told Mr. Griggs that the plaintiff had resided upon the premises for the period of five years; but Mr. Griggs testified that he had not been so informed. The latter, however, did testify that he was informed by the defendant that the plaintiff had his home upon and claimed a part of the south 40-acre tract.

We have alluded to the evidence as to the plat made by the plaintiff for the use of Mr. Gatchell in the preparation of a formal plat of Mrs. Bugher's desert entry and ditch, and explained that its effect, as showing the knowledge or belief of the plaintiff concerning the lines of his homestead, was a question of fact for the jury. Without referring to other facts and circumstances disclosed by the evidence bearing upon the question of the good faith of the defendant in acting upon the advice of counsel, we are satisfied, for the reasons above stated, that the motion for a directed verdict in favor of the defendant was properly overruled.

[9, 10] 2. Exception is taken to the following instruction: "You are instructed that the defendant in this case alleges in his answer that he made a full, true, and correct statement of all the facts in his knowledge bearing upon the question of the guilt and innocence of the plaintiff of the crime alleged in the criminal complaint made and filed by the defendant, Boyer, against the plaintiff. I charge you that, under the law, if you find that the defendant did not state all of the facts within his knowledge, or that he could

Another fact in dispute, and this between the evidence of the plaintiff and the defendant, was whether the plaintiff had made previous statements to the effect that when he moved his house he did so for the purpose of locating it upon his own land, which statement, if made, would lead to the inference that he knew that the house was not on his land. The statement made by the defendant to Mr. Bennett that the plaintiff had admitted that the land in question was not his own is supported only by the testimony of the defendant and some of his other witnesses to the effect that the plaintiff had made the statement above mentioned, explaining the removal of his house. The plaintiff having positively denied the making of such statement, whether he did so state or not was a question for the jury, and a belief in his testimony in relation to that matter | have ascertained upon reasonable inquiry, would necessarily discredit the testimony of the defendant and the other witnesses, so that it might be found that the defendant had stated a fact to counsel which he did not believe, or had no reason to believe, to be true.

Not only were some of the facts disputed, but there is nothing in the evidence to show that the defendant had disclosed to either counsel the fact, which we think it might be

or that he made any incorrect statement to said attorney, or withheld any material fact that he knew or by reasonable inquiry could have ascertained, then, and under such circumstances, the advice of counsel is no defense. You are further instructed upon this question that the defendant is required in law to state all the facts within his knowledge that tend to show the innocence of the plaintiff of the crime charged, as well as all

the other facts in his knowledge that tend to | 3; El Reno Gas & Elec. Co. v. Spurgeon (Okl.) show the guilt of the plaintiff, and if you be 118 Pac. 397; Parker v. Parker, 102 Iowa, 500, lieve from the evidence that said defendant, | 71 N. W. 421. It is declared by a few other Boyer, did not state to the prosecuting attorney all the facts within his knowledge, or that he could have learned by a fair and reasonable inquiry, that tended to show the innocence of the plaintiff of said alleged crime, then I charge you that the advice of said attorney is no defense."

the bill of sale a fact which could readily | part of his homestead, and that the register have been ascertained by inquiry-he was and receiver of the land office had recognot protected by the advice of the solicitor; and therefore that there was no reasonable and probable cause. The appellate court said that the trial judge correctly ruled that the defendant was not protected by the solicitor's advice based upon what really was an incomplete statement of the facts, but intimated that if the fact was in dispute it would be for the jury to find whether the defendant had taken reasonable care to inform himself of the true state of the case.

assume to decide what his rights might be under those circumstances. See Leitner v. Hodge, 5 Land Dec. Dept. Int. 105; Jarvis v. Wash, 18 Land Dec. Dept. Int. 297; Trainor v. Stitzel, 7 Land Dec. Dept. Int. 387; Richard Gill, 8 Land Dec. Dept. Int. 303; U. S. Rev. St. §§ 2369, 2370 (U. S. Comp. St. 1901, p. 1450).

nized that claim on his part, and assured him that his homestead was all right, and was where he claimed it was until proven differently by the government, and as tending, also, to show what the plaintiff's understanding or belief was as to his right to cut the hay in question. If the plaintiff intended in good faith, when making his homestead entry, to describe the land actually settled upon and occupied by him, but through errors in the government survey and [11] The instruction here complained of no fault of his own had erroneously deseems to be sustained by the weight of au- scribed the land, then, at least in the abthority; and, in our opinion, it expresses the sence of intervening adverse rights, there better rule to be adopted in such cases. We would seem to be some authority for the asdo not think it can reasonably be held that sertion that he could hold what he had ocsuch a rule will discourage desirable prose-cupied and improved through a proper procutions for the violation of the criminal ceeding for that purpose, though we do not laws through fear of liability to an action for malicious prosecution. Where the only motive is to bring a public offender to justice, a prosecutor is usually sufficiently protected by the necessity of showing malice, as well as a want of probable cause, in order to maintain the action for malicious prosecution; for, in the absence of actual malice or an indirect motive, it is not likely that a jury will infer malice from the want of probable cause unless the showing as to probable cause is so slight as to render the prosecution unexplainable, except upon the theory that it was induced by malice. The proof of malice in the case at bar was ample without such inference. Such an instruction as the one now under consideration we hold therefore to be proper where the facts warrant it. The necessity or propriety of giving it must largely depend upon the facts of the particular case. If it was not warranted in this case, for the reason that the defendant knew or had been informed of all the material facts, it could not have misled the jury, and was therefore not prejudicial. Moreover, a similar instruction was given, to which no exception was reserved, and as to which the record suggests, though not clearly showing the fact, that it was requested by the defendant. We refer to instruction numbered 16 which stated that if the defendant communicated to counsel all the facts bearing on the guilt or innocence of the accused which he knew, or by reasonable diligence could have ascertained, then he is not liable.

[12] 3. It is contended that the court should have excluded as incompetent the plaintiff's testimony relating what he had stated in the presence of the defendant and the register and receiver of the land office as to the land which he claimed as his homestead, and the replies of the register and receiver, respectively. The testimony was competent and properly admitted as tending to show the defendant's knowledge that the plaintiff claimed the land in question as a

[13] 4. Mrs. Julia Compton was called as a witness on behalf of the defendant, and testified upon her direct examination that she made a homestead entry, April 29, 1908, on Powder river, Johnson county, Wyo., and she identified the receiver's duplicate receipt which was issued at the time of making the said entry, whereupon such receipt was introduced in evidence. On cross-examination, over the objection of the defendant, on the ground that it was not proper cross-examination, counsel for plaintiff was permitted to interrogate her concerning her knowledge of the land embraced in her homestead entry, and her intention as to entering the land occupied by the plaintiff; and she testified that at the time she made her filing she knew where the land was, but did not know the boundary lines thereof, nor that the land filed upon would include the premises occupied and improved by the plaintiff, and that she did not intend to cover by her filing the plaintiff's house and improvements. She also testified upon such cross-examination that she had never lived in the vicinity of the land, had passed along the county road previously referred to but once, and that she did not notice the instructions on the back of the duplicate receipt to the effect that the entry must be canceled in case it was covered by any adverse settlement, application, entry, location, or other form of appropriation; and that she had not noticed any of the instructions and suggestions printed on the back of said receipt. In Henderson v. Coleman, 115 Pac. 439, it was said by this court that "the latitude of cross-examination is so largely within the discretion of the trial court that it must, as

a general rule, appear to have been flagrantly abused before a verdict will be disturbed on that ground." We do not think there was any abuse of discretion in allowing the cross-examination complained of. The witness having testified that she made a homestead entry and identified the duplicate receipt describing the land embraced in such entry, which description defendant claimed covered the land occupied by the plaintiff, and upon which the hay in question had been grown, in our opinion, it was proper upon cross-examination to show the extent of her acquaintance with the land, and what land she intended to file upon.

Finding no reversible error in the record, the judgment will be affirmed. Affirmed.

SCOTT, J., concurs.

BEARD, C. J. (dissenting). In my opinion, a new trial should be granted in this case. If the criminal prosecution had been commenced without the advice of counsel, I think the evidence on the question of probable cause for the prosecution was sufficient to sustain the verdict, and judgment; but I am also of the opinion that the defense that the prosecution was not only advised but suggested by the county and prosecuting attorney after he was in possession of all of the material facts in the matter was established by the great preponderance of the evidence. When he advised the bringing of the action, and when he prepared the information, he was not only informed by Boyer, but had previous information that Bugher claimed the land, and that he had his garden, orchard, and other improvements on land that Boyer claimed was included in the Compton homestead entry. He knew of the dispute, and that both parties claimed to be entitled to the same land. He knew that Mrs. Compton was not and never had been in actual possession. He had prepared a notice in her behalf, notifying Bugher to remove his improvements from the land she claimed under her entry. He was informed of the facts upon which Mrs. Compton based her claim; and the fact, if it was the fact, that Bugher had stated he would hold the land if he had to split a forty to do it was but an assertion of his claim. And the statement of the register and receiver that his homestead was where he claimed it until the government proved otherwise was a mere opinion. The material facts appear to me to have been fully and fairly stated to the county attorney, and there is no question as to his advising the prosecution. Boyer did not go to him for the purpose of instituting a criminal action, but for advice. He followed the advice he received, and, in my opinion, on the evidence in this case, he should be protected thereby, and that the judgment should be re

[14] 5. The plaintiff testified that at the time of his arrest he brought several witnesses with him to testify in his behalf and what his expenses attending the hearing of the criminal case amounted to, including the expense of said witnesses. It is contended that it was error to admit such testimony. But we do not find that the evidence was objected to. It is argued that the plaintiff was not authorized to take witnesses to the place of trial at the time of his arrest, as no process had been issued to compel the attendance of such witnesses, and the case had not been set for trial; that there was no necessity for setting the case for trial at the time the plaintiff was arrested and brought before the justice; and that he had no right to presume that the case would be tried immediately upon his appearance before the justice. The question is not properly raised, but I very much doubt the correctness of the proposition that, in order to recover such an expense in an action for malicious prosecution, it was necessary for the plaintiff to have first ascertained whether the attendance of the witnesses would be necessary at the time of his appearance before the magistrate in custody of the officer, or to have had a subpoena issued for them. It would seem that the plaintiff had a right to assume at the time of his arrest that the case would be heard without delay, and it appears that the trial was not postponed upon his application. [15] 6. The only remaining contention is that it was error to permit the plaintiff to testify concerning the survey which he made of his homestead without proof of his competency as a surveyor. While it appears that he did not claim to be a surveyor by profession, he testified that he was a practical surveyor, and we think the proof suf- |(Supreme Court of Wyoming. Jan. 12, 1912.) ficient as to his knowledge of the subject 1. REPLEVIN (§ 83*)-DELIVERY OF PROPERTY and his experience in making surveys to permit him to testify what the result of his survey was. So far as it was material, the accuracy of the survey, and whether the plaintiff had made and acted upon it in good faith, were for the jury to determine. While the title to the land was incidentally involved, it was not the ultimate fact to be adjudicated.

versed.

HUNT v. THOMPSON.

TO PLAINTIFF.

Comp. St. 1910, 88 5010, 5011, provide that where a defendant in replevin for ordinary property fails to give, within 48 hours of the levy, an undertaking to produce the property and pay any damages awarded by the judgment, plaintiff may have the property on the execution of an undertaking to duly prosecute and pay all costs and damages. Comp. St. § 5015, provides, on a failure of the plaintiff's suit by lack of prosecution or on de

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 311-318; Dec. Dig. § 83.*]

murrer, for the assessment of proper damages POTTER, J. This was an action of replevto the defendant. Held, that title to the prop-in, and it comes to this court on error for erty delivered to the plaintiff under the provisions of the statute passes to him by the de- the review of a judgment in favor of the delivery as no provision is made for its return, fendant below. It is conceded that the propand the defendant must look for his protection erty described in the petition, consisting of to a recovery in damages if the writ was im- one team of mares, one wagon, and one set properly sued out. and delivered to the plaintiff. The verdict of of double harness, was taken upon the writ the jury was as follows: "We, the jury duly impaneled and sworn to try the issues in the above-entitled action, do find for the defendant L. Thompson upon the issues joined in this action; and we do further find that said defendant L. Thompson had the right of property and the right of possession of, in and to the one team of iron-gray mares, one Studebaker wagon and one set of double harness in controversy, at the time of the commencement of this action; and we do further find and assess as right and proper damages to said defendant for the value of said property in the sum of $200, and as the damages for the unlawful detention of said property since this action was commenced in the sum of one hundred thirty-six & 90/100 dollars, being a total of three hundred thirty-six & 90/100 dollars awarded by the jury as the damages of said defendant." Judgment was entered upon the verdict for the total amount of the damages assessed.

2. REPLEVIN (§ 83*)-DAMAGES-DEFENDANT. Comp. St. 1910, § 5016, provides that upon a finding for a plaintiff in replevin who has possession of the property the jury may assess damages for the "illegal detention." Comp. St. § 5017, provides that where property is taken by a writ of replevin and delivered to the plaintiff, or retained by the sheriff, the jury, on a finding for defendant, may assess such damages as are "right and proper." At common law a defendant in replevin was entitled to no damages on the return of his property. Held as the statutes were enacted to remedy the inequality existing, the right of a defendant to damages, and the measure and extent of the right, depends on the particular statute authorizing such a recovery, and that the difference in language between sections 5016 and 5017 cannot be held to exclude a defendant from a recovery of damages for illegal detention.

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 311-318; Dec. Dig. § 83.*] 3. REPLEVIN (§ 83*)-DAMAGES-DEFENDANT -"RIGHT AND PROPER."

The principle upon which compensatory damages are assessed is that compensation for injury shall be commensurate with loss, so that under Comp. St. 1910, § 5017, which provides that a defendant in replevin upon a finding in his favor may have such an assessment of damages as is "right and proper," a successful defendant is authorized to recover damages for the wrongful detention where the cir

cumstances are such that he would not otherwise be fully compensated.

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 311-318; Dec. Dig. § 83.*] 4. REPLEVIN (§ 83*)-DAMAGES-DEFENDANT. And where the property taken is valuable for its use so that interest on the value would not compensate, a recovery of the value of its use is authorized.

It is contended by counsel for plaintiff in error that by the verdict and judgment the defendant was erroneously awarded damages for the wrongful detention of the property based upon the value of its use. It is urged in support of that contention that our statutes do not authorize a recovery by a defendant in replevin of damages for the detention of the property taken; that a clear distinction in that respect is found in the statutes between the damages recoverable by the plaintiff and those allowed in favor of the defendant; and that the defendant's recovery cannot exceed the value of the property, when it has been delivered to the plaintiff. with interest upon such value as upon a debt. 5. REPLEVIN (§ 83*)-DAMAGES-DEFENDANT. A defendant in replevin may, within 48 Where property has passed into the hands of a plaintiff in replevin under Comp. hours from the time the sheriff levies the St. 1910, 5010, as under the Wyoming stat-writ upon property described therein, exeutes the defendant therein loses all title to cute with sufficient sureties a written underthe property and upon a recovery in his favor taking to the plaintiff, in at least double the may not elect whether he will take a judgment for the return of the property or its value, the value of the property taken, to the effect that amount of recovery proper cannot be deter- the defendant will deliver the property to mined by a rule arising under a statute allow- the plaintiff if such delivery be adjudged, ing such an option and limiting the damages, and will pay all costs and damages that may on an election to take value, to compensation be awarded against him; and thereupon the

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 311-318; Dec. Dig. § 83.*]

for the value with interest.

Ed. Note. For other cases, see Replevin, sheriff is required to redeliver the property Cent. Dig. §§ 311-318; Dec. Dig. § 83.*]

so taken to the defendant. Comp. St. 1910. Error to District Court, Albany County;ished by the defendant, then it is required § 5011. If such an undertaking is not furnCharles E. Carpenter, Judge.

Replevin by George H. Hunt against L. Thompson. From a judgment for defendant, plaintiff brings error. Affirmed.

that the sheriff deliver the property taken to the plaintiff upon the execution by sufficient surety of the plaintiff of a written undertaking, in at least double the value of the prop

M. C. Brown, for plaintiff in error. H. V. erty taken, to the effect that the plaintiff S. Groesbeck, for defendant in error.

shall duly prosecute the action and pay all

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes