Siebecker, J.
"Whether tbe court correctly submitted tbe issues to tbe jury must be determined upon tbe state of tbe evidence. No question relating to instructions can be considered since tbe record presents no exception to tbe charge of tbe court.
*410The institution of criminal proceedings by the defendant against the plaintiff and plaintiff’s acquittal of the charge preferred therein is unquestioned. The court submitted to the-jury the question whether defendant instituted the criminal actions maliciously, without probable cause, and upon the-advice of counsel. The jury found that defendant instituted them maliciously,-without probable cause, and that he did not act upon the advice of counsel in instituting them. Upon this question it appeared that he failed to make a full and fair-disclosure of material facts in obtaining advice. The evidence also tended to support inferences, which the jury were permitted to find, that the old fence material was of no value-at the place in the newly established highway from which plaintiff was accused of stealing it; that defendant had expressly disclaimed any interest in it and had left it to be removed by the road overseer; that the overseer had told the-plaintiff and others that they might remove it; and that he had been and was then engaged in burning portions of it te-clear it from the highway. It also appeared that an unfriendly feeling existed between the parties, and that this feeling had been intensified through alleged trespasses of defendant’s cattle on plaintiff’s premises and had resulted in litigation between them. Under evidence sustaining such inferences it is apparent that the trial court held upon good ground that the question of defendant’s liability in instituting these criminal proceedings against plaintiff maliciously and without probable cause should be submitted for determination to the jury, Eggett v. Allen, 119 Wis. 625, 96 N. W. 803.
Eespecting the defense that defendant acted upon the advice of counsel, circumstances already considered have a bearing. To rest upon this defense requires that the defendant sought such advice and followed it in good faith. To fulfil such requirements it must appear that he fully and fairly stated the material facts and his knowledge of the transaction to counsel, and that such advice led him to the-*411¡honest belief that plaintiff was guilty of the offense of which he complained against him. If the evidence upon this subject fails to establish such facts clearly and without dispute, then it must be left for decision to a jury. Messman v. Ihlenfeldt, 89 Wis. 585, 62 N. W. 522; Small v. McGovern, 117 Wis. 608, 94 N. W. 651; Cullen v. Hanisch, 114 Wis. 24, 89 N. W. 900; Schaltgen v. Holnback, 149 Ill. 646, 36 N. E. 969. The evidence is not without dispute, and does not clearly show that defendant met these requirements. The-evidence shows that he omitted to state to the counsel whom he consulted that the material which he claimed plaintiff had stolen had no market value in its decayed condition where it lay in the highway, that he had taken the portion that was-good, that the part which he had left and which was taken might be deemed to have been abandoned by him, and that the overseer, in clearing out the newly established highway, was engaged in burning it as abandoned and worthless rubbish; nor did he state that he and plaintiff had had recent difficulties and litigation concerning this line fence and trespasses committed by his cattle on plaintiff’s land. Another material fact bearing upon this issue is the conflict between-his evidence and that of the district attorney respecting the second prosecution. The district attorney claims to- have advised him that the second prosecution ought not to be instituted until the first action had been tried, but he states that defendant persisted in commencing it before the trial of the pending action. TJpon this state of the evidence and the consideration of defendant’s want of good faith in this transaction, it is manifest that this issue was properly submitted to be resolved by the jury.
The jury assessed plaintiff’s compensatory damages at $400. This sum cannot be held excessive under the facts. Billingsley v. Maas, 93 Wis. 176, 67 N. W. 49.
By the Gowrt. — Judgment affirmed.