Folger v. Washburn

By the Court. In an action for malicious prosecution, the burden is upon the plaintiff to prove that the suit or prosecution complained of was instituted maliciously, and without probable cause. A general denial by the defendant puts in issue all the facts which it is necessary for the plaintiff to prove in order to make out a prima facie case. Evidence on behalf of the defendant, that, in instituting the previous prosecution, he acted in good faith, under the advice of counsel, is competent under a general denial, because it tends to rebut the plaintiff’s allegations of malice and want of probable cause. This is not a substantive fact in avoidance of the action; it does not admit and avoid facts alleged by the plaintiff, but disproves them. Brigham v. Aldrich, 105 Mass. 212. Exceptions overruled.