MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to recover damages for malicious prosecution. Plaintiff prevailed in the lower court, and defendant appealed from the judgment, and from an order denying his motion for a new trial.
[1] It is alleged in the complaint that on the twenty-eighth day of May, 1915, defendant herein appeared before John H. Smith, a justice of the peace at Sidney, Montana, and maliciously and without probable cause made, subscribed and verified a complaint charging this plaintiff with grand larceny in stealing a certain Buick automobile; that a warrant was duly issued upon the complaint; that plaintiff was arrested in Minneapolis, and returned to Sidney; that he was arraigned before the justice of the peace, and given a preliminary examination; that, upon such hearing, evidence was introduced; that defendant appeared as a witness, and testified against the plaintiff; and that, at the conclusion of the hearing, plaintiff was discharged, and the criminal proceeding finally terminated. Then follow appropriate allegations of plaintiff’s damages, with a prayer for judgment. To this complaint defendant interposed a demurrer, which was overruled, and- then answered, denying that he acted maliciously or without probable cause, and that plaintiff was damaged in any amount whatever. As an affirmative defense he alleged that on May 26 he signed and verified a complaint before John H. Smith, the justice of the peace, charging plaintiff with grand larceny; that he first made a full and complete presentation of the facts to an attorney at law; that he was advised that probable cause existed for believing plaintiff guilty, and that he acted in good faith upon the advice of counsel; that thereafter, on May 28, the first *125complaint was dismissed upon motion of the county attorney, and he then signed and verified the complaint involved in this action at the request and upon the direction of the county attorney after a full and fair statement of the facts had been made. All of the affirmative allegations were denied by the reply.
The complaint sets forth all the facts necessary to state a cause of action (Stephens v. Conley, 48 Mont. 352" court="Mont." date_filed="1914-01-06" href="https://app.midpage.ai/document/stephens-v-conley-8021964?utm_source=webapp" opinion_id="8021964">48 Mont. 352, Ann. Cas. 1915D, 958, 138 P. 189" court="Mont." date_filed="1914-01-06" href="https://app.midpage.ai/document/stephens-v-conley-8021964?utm_source=webapp" opinion_id="8021964">138 Pac. 189), and is not open to the criticism that causes of action are improperly united.
[2] Complaint is made of the rulings of the trial court in admitting evidence of the proceedings had before the justice of the peace. It was not necessary for plaintiff to prove the
institution of the criminal proceeding, or that defendant was the responsible agency for it. These two facts are admitted sufficiently by the answer. The docket entries made by the justice of the peace were introduced in evidence, but they are so meager and were kept after such fashion that they do not prove anything whatever.
[3] Without further preliminary proof, and over objection, plaintiff then offered oral testimony that
a warrant was issued and served; that plaintiff was arrested and brought into court; that he was given a preliminary examination at which witnesses, including defendant herein, were examined, and that plaintiff was discharged. The warrant itself was the best evidence that it was issued and the sheriff’s return the best evidence of the action taken under it. In the absence of proof of the loss or destruction of the warrant, parol evidence of its contents, or of the contents of the indorsement on it, was inadmissible and the court erred in its rulings, but later, during the trial, the necessary proof was made of the loss of the warrant, and this, in our judgment, robs the errors of their harmful effect.
[4] The question resolves itself largely into one of order of proof with respect to which the trial court must be permitted to exercise a reasonable discretion. (Stephens v. Elliott, 36 Mont. 92" court="Mont." date_filed="1907-10-28" href="https://app.midpage.ai/document/stephens-v-elliott-8021061?utm_source=webapp" opinion_id="8021061">36 Mont. 92, 92 Pac. 45.) We fail to see *126wherein defendant could have been prejudiced. If proof of the loss of the warrant had been introduced first, the competency °of the oral testimony would be beyond question. (See. 7872, Rev. Codes; 3 Jones on Evidence, sec. 620.)
[5] Counsel for appellant insist that the fact that plaintiff was discharged could be proved only by the entries in the justice’s docket, but in this they are in error. Section 9089 of the Revised Codes provides that the fact of discharge shall be evidenced by indorsement on the testimony or warrant. As the charge against plaintiff was not such as that the testimony was required to be reduced to writing, and filed as depositions, under the provisions of section 9087, the indorsement on the warrant would have furnished the best evidence of plaintiff’s discharge, and, since the warrant was lost, parol evidence was admissible to prove the fact under the rule above.
[6] The complaint, signed and verified by defendant, charging plaintiff with grand larceny, was admitted in evidence. It bore a file-mark, but there was no evidence that the indorsement was made by Smith, the justice of the peace. We think it was not incumbent upon plaintiff to prove that the • complaint was actually filed. Defendant admitted that he subscribed and swore to the complaint. By these acts he set the machinery of the law in motion. It was the duty of the justice to file the complaint, but over his action plaintiff had no control. Upon proof that a warrant was issued and the subsequent proceedings had, the presumption arises that official duty was regularly performed and that the complaint was duly filed. (Sec. 7962, subd. 15, Rev. Codes.)
[7] If we assume that the justice of the peace is required to keep a docket in criminal cases, the plaintiff cannot be held responsible for his failure to make the entries sufficiently complete to be intelligible, and under the circumstances the oral testimony that a preliminary examination was had was properly admitted. (1 Greenleaf on Evidence, sec. 513; 3 Jones on Evidence, sec. 623.)
*127[8] Upon the trial defendant sought to show that, in addition to his consultation with an attorney at law, he also consulted with and secured the advice of his wife and the cashier of his bank, and complaint is made of the rulings excluding this evidence. It is the general rule that the advice of nonprofessional persons is inadmissible to show probable cause. (26 Cyc. 33; 18 R. C. L. 50.)
[9] Complaint is made of instruction No. 4 given to the jury, as follows: "To constitute probable cause which would justify the institution of a criminal prosecution, it is only necessary that there should be evidence which reasonably warrants a belief in the guilt of the accused; it need not be sufficient to insure a conviction.”
In Martin v. Corscadden, 34 Mont. 308" court="Mont." date_filed="1906-07-02" href="https://app.midpage.ai/document/martin-v-corscadden-8020901?utm_source=webapp" opinion_id="8020901">34 Mont. 308, 86 Pac. 33, this court approved the following definition of "probable cause”: "Probable cause is only such a state of facts and circumstances as would lead a careful and conscientious man to believe that the plaintiff was guilty.” And in the further consideration of that definition, we said: "In the particular case, then, the inquiry must be, not whether the plaintiff was actually guilty, but whether the facts and circumstances were such as to warrant the defendant, as a prudent and conscientious man to believe him guilty. * * * All that is required is that a prudent and conscientious inquiry be made, and if it then appears that testimony is at hand or obtainable justifying a well-founded belief that a violation of the law can be established and a conviction secured, there is probable cause to proceed with the prosecution.” Instruction No. 4 fairly states the rule as announced in the case above.
[10] Exception is taken to the refusal of the trial court to give defendant’s requested instruction No. 3, as follows: "The discharge of Hawley by the justice of the peace is not any evidence whatsoever of malice on the part of Bichardson or want of probable cause, from which malice may be implied.” The court did not err. The same question was presented and *128ruled adversely to appellant in Grorud v. Lossl, 48 Mont. 274" court="Mont." date_filed="1913-12-02" href="https://app.midpage.ai/document/grorud-v-lossl-8021955?utm_source=webapp" opinion_id="8021955">48 Mont. 274, 136 Pac. 1069.
[11] Instructions 1, 2 and 6, requested by defendant, are covered fully by instruction 3 given by the court.
[12] The court refused to give defendant’s requested instructions 8 and 9, as follows: “8. You are instructed that in determining whether there was probable cause for instituting the criminal proceedings by Richardson, you may make some allowance for the fact, if you believe it to be a fact, that Richardson felt himself injured by the offense which he alleged Hawley had committed, and under such circumstances he cannot be held as likely to draw his conclusions with the same impartiality that a person entirely disinterested would deliberately do.” “9. All that was required of Richardson was that he should act as a reasonable and prudent man would be likely to act under like circumstances.”
[13] However, the court gave the following definition of probable cause, in instruction No. 3: “Probable cause, as used herein, is a reasonable ground or a suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily prudent and cautious man, acting impartially and honestly, in believing that a crime had probably been committed.” We do not approve this definition.'
[14] It requires the party making a criminal complaint to act with entire impartiality, and does not take into account the circumstances surrounding him at the time he makes the complaint; but the instruction was given without objection. It became the law of the case, and we are precluded from interfering. Section 9271 of the Revised Codes provides, among other things: “No cause shall be reversed by the supreme court for .any error in instructions which was not specifically pointed out and excepted to at the settlement of the instructions herein specified, and such error and exception incorporated in and settled in the bill of exceptions as herein provided.” (See State v. Cook, 42 Mont. 329" court="Mont." date_filed="1910-12-06" href="https://app.midpage.ai/document/state-v-cook-8021525?utm_source=webapp" opinion_id="8021525">42 Mont. 329, 112 Pac. 537; State v. Thomas, 46 Mont. 468" court="Mont." date_filed="1912-12-12" href="https://app.midpage.ai/document/state-v-thomas-8021829?utm_source=webapp" opinion_id="8021829">46 Mont. 468, 128 Pac. 588.)
*129[15] Neither do we approve instruction 8 above, when considered standing alone. It amounts in effect to a comment upon the evidence. Our attention is directed to the case of Spear v. Hiles, 67 Wis. 361, 30 N. W. 511, wherein an instruction embodying the general provisions of defendant’s requested instructions 8 and 9 above was approved, but the court laid emphasis only upon the last sentence, which is defendant’s offered instruction 9, and did not comment upon the other portion. If we assume that instruction 9 should have been given, if instruction 3 had correctly defined probable cause, still the court could not give that definition and also give instruction 9. The two are essentially conflicting, and since defendant did not object to instruction 3, he cannot complain that the court refused his offered instruction 9.
[16] Instruction 12 tendered by the defendant, but refused by the court, correctly states an abstract proposition of law, but it has no particular application to the facts of this case; on the contrary, the statement, “The policy of the law is to favor prosecutions for crime,” might naturally lead the jury to infer that, in the opinion of the court, plaintiff was actually guilty of the larceny with which he had been charged by the defendant.
[17] Complaint is made of instruction 4 — A given to th.e: jury, in which the court defined grand larceny in the language of the statute. One of the principal questions for the jury’s determination was: Were the facts and circumstances such as to warrant the defendant, as a reasonably prudent person, in believing that plaintiff was guilty of grand larceny? The definition would furnish a standard by which the jury might determine that question, and for this purpose we think it was given properly.
[18] The plaintiff’s story of the automobile transaction is substantially as follows: He had been engaged in purchasing and selling cattle, and had associated with one Balcolm. Balcolm had issued checks against plaintiff’s bank account in Fairview, and plaintiff, fearful that the holders *130of these checks would sue him and attach his property — the automobile in question, and a cow — on October 7, 1914, gave to defendant a bill of sale of the automobile and cow, for the sole purpose of covering up the property and, as he presumed, putting it beyond the reach of attachment process. He testified that he did not owe defendant anything; that he did not receive any consideration for the alleged transfer and that defendant had no interest in or lien upon the property; that the cow was afterward sold and the purchase price paid to plaintiff; that when he came to Fairview, on April 25, 1915, he told defendant that he was then going to take the automobile to Minneapolis, and did so. Defendant claimed, in effect, that the bill of sale was given him as security for the payment of $148.25, which he alleges plaintiff owed him, and had not paid. If plaintiff’s story is true, defendant did not have probable cause, or any cause whatever, for instituting the criminal action, and the verdict can be accounted for only upon the theory that the jury accepted plaintiff’s version as the true one, and did not believe defendant’s testimony. The language of this court in Grorud v. Lossl, above, is pertinent here: “Of course, if the jury had accepted the story told by the defendant, the inevitable conclusion would have been that the plaintiff was guilty of the charge of larceny made against him, or, in any event, that the prosecution had not been instituted without probable cause. On the other hand, having accepted the story told by the plaintiff, with the legitimate inferences to be drawn from it, the jury were justified in concluding that the charge made was wholly without probable cause; and, having so concluded, they were at liberty to infer- that in preferring the charge the defendant was prompted by malicious motives. * # * All the authorities agree that, while the plaintiff must prove both the want of probable cause and malice in order to make a prima facie case, they also agree that, when the absence of the former has been established, the presence of the latter may be inferred.”
*131The evidence is sufficient to take the ease to the jury, and to justify the court in denying a new trial.
[19] Over objection of defendant, plaintiff was permitted to show that he paid $75 to his attorneys in Minneapolis to appear before the governor of Minnesota and resist extradition, and the court instructed the jury that, if they found in favor of plaintiff, they might take this item into consideration as an element of damage. The evidence discloses, however, that, after some preliminary hearing before the governor, plaintiff abandoned his opposition, and came voluntarily with the Montana sheriff. Under these circumstances we think the money paid to the Minneapolis attorneys did not constitute a proper element of damages. It was altogether too remote.
Other assignments of error are made, but, in our judgment, they do not warrant special consideration.
The order denying a new trial is affirmed. The cause is remanded to the district court, with instructions to deduct $75 from the amount of the judgment as of the date of the entry judgment, and as thus modified, it will stand affirmed. Each party shall pay his own costs of these appeals.
Modified and affirmed.
Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Galen concur.