Folger v. WashburnFolger v. Washburn
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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.