¶1delivered the opinion of the Court:
¶2The Court refused to instruct the jury, at the request of defendant, that “malice, actual, must be provéd by the ■plaintiff;” and in this the Court, in our opinion, erred.Malice is a fact to be found by the jury in an action for malicious prosecution. It may be proven by the acts or declarations of the defendant, in respect to the prosecution, or the matter which was made the subject of the criminal charge against the plaintiff, or it may be inferred by. the jury from the want of probable cause. The want of .probable cause does not raise a legal presumption of malice, but it may be inferred therefrom—though it is not necessarily inferred—-by the jury, as it may be inferred from other circumstances. But, by whatever mode it may be proven, it is proven as a fact. The charge must be shown to be wilfully false. The malice, therefore, must be actual. (2 Greenl. Ev. Sec. 453; 3 Phil. Ev, 572; Bulkeley v. Smith, 2 Duer, 261.) The error is not cured by the instructions of the Court, but, on the contrary, the jury are directed that the law will presume malice, if it be found that the defendant caused the plaintiff to be arrested upon a criminal charge, and that the prosecution was ended and the plaintiff discharged because of the failure of the defendant to prosecute the case.
¶3The defendant also assigns as error the refusal of the Court to permit him to prove that he acted under the advice of counsel. The onus is upon the plaintiff to prove his allegation of the want of probable cause. The defendant may rebut the evidence of the plaintiff on this point by showing that he acted in good faith, under the advice of counsel, after a full and fair statement to his counsel of the facts, of the case, (See Potter v. Seale, 8 Cal. 224, and other cases cited by *489defendant.) Such evidence is directly responsive to the evidence introduced by the plaintiff to show the want of probable cause, and does not constitute new matter within the sense of the Code. It is objected that the defendant did not prove that he made a full and fair statement of the facts to his counsel; but the answer is, that the evidence was arrested on the outset before the defendant had an opportunity to prove, or offer to prove, that he made such statement to his counsel. But the error in the ruling of the Court on this point became immaterial, for it clearly appears that the defendant’s counsel did not advise the arrest of the plaintiff.
¶4The plaintiff, for the purpose of proving that the defendant knew that the charge of grand larceny, preferred by him against the plaintiff, was false, was entitled to introduce evidence showing that it was the rule or custom of the police office to take from the persons of those arrested the property in their possession, and to prove that the defendant knew the rule of the police in that respect by showing that he had been arrested, and his property taken from him by the police officers, prior to the 14th of November, 1865, and by producing receipts given by him to the Chief of Police, upon the return of such property.
¶5But the admission of the testimony of Martin, that he arrested the defendant, without showing that the arrest was made before that time, and the admission of the receipt of the defendant to the Chief of Police, given after that date, and after the arrest of the plaintiff, was erroneous.
¶6The affidavit of the juror showed a case of misconduct of the jury, within the provisions of the second subdivision of Section 193 of the Code. It is thereby shown that a portion of the jurors were induced to assent to a verdict for the sum of $1,500, instead of $1,000, by drawing lots. For this misconduct the verdict should have been set aside.
¶7The point that the proceedings had before the Police Judge, in the prosecution of the plaintiff, were extra-judicial, is not tenable. The Judge is vested by the statute (Stats. *4901863-4, p. 30) with “power to hear cases for examination;” that is to say, , the .powers of a Magistrate.
¶8Judgment reversed and cause remanded for a new trial..
¶9By Sprague, J,: I concur in the judgment.