¶1delivered the opinion of the court.
¶2Appellee brought this action for malicious prosecution, and upon a trial before a jury, recovered a verdict for $150, upon which judgment was rendered.
¶3The appellant and appellee are adjoining landowners, the land of the former lying north of and between the land of the latter and the public highway running east and west. Upon the petition of appellee, a road for private and public use was regularly ordered to be laid out across the lands of appellant, twenty feet wide, being ten feet on each side of the center line dividing appellant’s eight3r-acre tract of land-After the payment by appellee and the town to appellant of the damages awarded, but before such road was formally opened, appellant, upon condition that appellee would put in certain gates, gave the latter permission to travel over the west ten feet, but refused to permit him to travel over the east ten feet, claiming that such travel would injure the growing crops. The land on both sides of the fence dividing the eighty-acre ■ tract was in the possession of a tenant, and from the latter, appellee obtained permission to travel over the east ten feet. In pursuance of such permission from the tenant and against the protest of appellant, appellee traveled on the east ten feet, cutting wires strung b3f appellant as an obstruction to such travel. Thereupon appellant, after consultation with reputable, licensed attorneys, procured a warrant for the arrest of appellee for a violation of the Criminal Code, which provides, “ Whoever wilfully enters and passes over any garden, yard or other improved field, after being expressly forbidden so to do by the owner or occupant thereof, shall be fined not exceeding $5.” On the hearing before a justice of the peace, appellee was discharged and thereupon brought this suit.
¶4The main defense interposed by appellant was, that he acted on the advice of reputable licensed attorne3rs in instituting the prosecution against appellee. The contention of appellee that appellant did not fully and fairly disclose to his attorneys all the material facts bearing upon the question of appellee’s guilt of the offense charged, is not sustained by the record. We are of opinion, however, that the jury were fully warranted in finding that appellant’s attorneys did not advise the criminal prosecution against appellee, but rather discouraged such prosecution and that the same was instituted on his own motion to harass and oppress appellee, and to coerce him into a surrender of a right claimed by him. A prosecution for such purposes, even upon advice of counsel, cannot be justified as having been instituted in good faith. Neufeld v. Rodeminski, 144 Ill. 83. Appellee had permission from the tenant cultivating the land, to enter and pass over the same, and he did so without interfering in any way with the rights of appellant. That appellant was actuated- by malice in instituting the prosecution against appellee, does not admit of doubt under the evidence, and that he lacked probable cause is almost equally apparent.
¶5While appellee’s fifth instruction is open to the criticism that it enumerates elements of damage not supported by proof, we do not think, in view of the amount of the verdict, that it operated to the prejudice of appellant.
¶6The judgment is affirmed.
¶7Affirmed.