Britton v. Granger. titude of doing like act again, or he is seen where suspicion might aries, yet there might be other facts that would clear all these things away, yet he is arrested. Now, the officer knowing these horses to have been stolen, should it have any influence on his mind in making the arrest? Is that a fact that should be admitted? The purpose of all courts in determining every case is, to get at all the facts that actually existed in the case, and all the facts that were known especiaily to the prosecutor or the person making the arrest at the time the arrest was made. What was in his mind to influence him; and some things that were in his mind might be too remote to be introduced, and yet sometimes sufficient to form a probable cause, a proper form of reasoning, such as persons of ordinarily prudent minds would be likely to form. A person who sits down and deliberately makes a charge against another, is required to look into all the facts that exist in his mind to some extent. If he has heará rumors, he cannot act entirely upon these rumors, but must investigate as to their truth or falsity. If he is without certain facts, it is important that he should look to some extent; but if the police officer arrested upon view, or even upon a warrant-but still more so upon view, because that is the only circumstance that would warrant a discussion of these facts in the case--if the police officer arrested upon view, he cannot proceed in the examination of the facts that appeared in his mind at the time he makes the arrest, but must proceed Eastily, without investigation, or nine times out of ten he would lose the prisoner. That is a circumstance; and then many courts have discussed another feature of this-that even where facts are brought to the notice of the person who institutes the prosecution, that person is acting under more or less excitement, and should not be held rigidly to the rule that would govern people who sit down and deliberately think about the matter after it is all over, and who have no connection with the case whatever. In getting at this matter, we conclude that the facts undertaken to be shown here were of such a character, that they were properly taken into consideration by the officer who made the arrest, that some person had been thus prowling around, some person had been acting as this person was then acting; and that being the case, we think that the testimony was improperly ruled out, and should have been admitted, and that it was error on the part of the court below One other error was assigned upon the said trial. There was evidence introduced tending to prove that, after the arrest, imprisonment, and discharge as aforesaid, and before making any formal legal charge against plaintiff, the defendant consulted with Judge Fiedler, a duly licensed practitioner of the law, and at that time police prosecutor of the city of Cleveland; that upon such consultation defendant made to Judge Fiedler a full and fair disclosure of all the facts known to him in the case; and that Judge Fiedler then and there, and upon the facts so disclosed, advised defendant that the plaintiff was guilty of disorderly conduct in viclation of said section of the said ordinance, and advised the defendant to prosecute plaintiff for such offense; that Judge Fiedler then prepared for defendant the affidavit charging plaintiff as complained of in this amonded petition; and that all that defendant thereafter did or caused to be done in the matter of the prosecution of said amended petition compizined of, he did pursuant to the said advice of said Judge Fiedler. Thereupon, this request was made by the defendant below, the plaintiff in error here. "Where an officer finds one violating a law or ordinance, and then and there arrests him, and thereafter cs affidavit charging him with the Cuyahoga Circuit Court. offense he was found committing, the prosecution begins with the filing of the affidavit, and not with the arrest; and if such officer before making the affidavit, takes the advice of an attorney-at-law, upon full and fair disclosure of the facts, and follows his advice in making an affidavit, and prosecuting the person so charged, the officer is entitled to the benefit of such consultation and advice, in determining whether he had reasonable or probable cause for the prosecution. Applying this rule to this case, if the evidence shows that after the arrest, but before making the affidavit, the defendant consulted Judge Fiedler, laid before him fully and fairly all the facts in his possession, and then followed his advice in filing the affidavit and prosecuting the case, such consultation and such counsel are circumstantial evidence that tends to show probable cause and want of malice, and you should so consider them." The court refused to charge the jury as requested, and that was excepted to. And then the court said to the jury: "Testimony has been offered tending to show that before filing the affidavit upon which this prosecution in the police court was conducted, the officer stated to the prosecuting attorney of the police court the circumstances and facts of which he had knowledge and upon which this charge was to be made, if one was made, in the form of an affidavit or warrant. In other words, he claims to have laid before the prosecuting attorney all the facts regarding the transaction. And it is claimed that thereupon he was advised by counsel that the statements and facts so made known to the attorney were sufficient to justify the prosecution, and that the prosecuting officer advised it-advised the carrying forward of the prosecution.' In a word, this defendant claims to have acted upon the advice of counsel. Confessedly this advice was not sought until after the arrest was made. The arrest was made upon the 2nd of May. The affidavit offered in evidence was sworn to on the 9th day of May, 1894, some days after the arrest. The court holds that, under the circumstances, advice sought or advice of counsel given in pursuance of information given to counsel, cannot amount to complete justification of the defendant in this action." That was not asked,-that last proposition as to complete justification. It only asks that it may be taken into consideration in determining whether or not there was probable cause, and whether or not there was malice. The court continued: "Let me state the general rule. If one has a complaint against another; if one seeks the arrest of another, and before causing the arrest of another, he goes to an attorney-at-law, one duly admitted to practice. law in Chio, and lays before him a the facts of which he has knowledge, conceals nothing, states every fact of which he has knowledge bearing upon the case, and upon that statement his counsel advises him that he has a good complaint, that he has just cause for making a complaint and reason for the arrest of the party, that constitutes a complete defense to him against a subsequent charge of malicious prosecution. That is, if he has acted upon that information, is advised that the facts justify the complaint, he is not liable in an action for malicious prosecution. To make such a defense available, however, it must appear that the party making the complaint concealed nothing, told everything of which he had knowledge, reported the facts truthfully and in no way misled his advisor or caused him to make a statement based upon ets Britton v. Granger Now, as I say, it is prosecuting attorney that were not true as he believed them to be true. claimed in this action that the defendant told the al the facts of which h ha knowledge, and the prosecutor advised the filing of the affidavit, or advised him that the faci iustified the filing of the complaint. As I have already stated, this ad was soug and given some days after the arrest of the plaintiff and detention in the police station, some days after he gave bail for his subsequen、 appearance in court. 'The courts of the opinion, and so instructs the jury, the under the circumstances, even though he gave to the officer ail the facts of which he had knowledge, that cannot, in view of the time it was given to him, constitute a complete defense to thi. second cause of action; but that it is a circumstance which the jury may consider as bearing upon the motive by which Britton was actuated, as tending to how the absence of knowledge-as tending to show his acting in good faith; and you may consider that testimony for whatever you regard it worth, as bearing upon the question whether or not ne acted from honest and right motives doing as he did." As ɔ this tending to show he acted in good faith-good faith is not the equivalent of probable cause, nor is it so treated by the anthorities. For whatever you regard it worth, as bearing upon the question whether or not he acted from honest and right motives in doing as he did.” Now that is not the equivalent of probable cause at all. "Whether of not he acted without melice, or acted in good faith, having only in mind the observance of the law, and the vindication of the law and the punishment of violators of the law You may examine that testimony and considca lem your finding as tending to show absence of malice in his instituting this prosecution" The court confires it to showing the absence of mace in his instituting this prosecution. The court then says: First-That Britton going to the attorney, who happened at that time to be the prosecutor, that if he went after the arrest was made, but before the prosecution was commenced, it could be no ground whatever to show the want of malice, ac could it show probable cause; and in giving the rule, the general rule, the court has not in language wholly stated to the jury that it was sufficient to show probable cause, even the advice had been given berole the arrest, and everything revealed. 16 The whole question here probably turns upon the line that is undertaken to be drawn between that of the arrest and that what is strictly called the prosecution. We have in the books arrests," "malicious arrests." We have in the books "malicious prosecution." We have in tac bocas, false imprisonment," and they are not alike. They are all different. Our state has required, as a condition recedent to any trial, and any legal trial whatever, that there be filed against the party an affidavit, and we tain that that is the beginning ~f a prosecution in a case of this kind. Malicious arrest is, in mary casts a least, ertirely a different and separate cause of action from that of matou osecution; and we find several cases wher they live be ↑ ined together where the party has to separate and distint uses action, and while no court that we have seen has ruled distinctly upon that, yet it is so treated throughout the case by counsel and attorneys; and that, too, under the common law, without any statuto regulating the matter. Cuyahoga Circuit Court. We think that the court erred in refusing to give this request. The first question that I have considered, and bearing upon this somewhat also, has undergone a considerable discussion in the books. There was a time when such evidence as was ruled out of here would not have been admitted, but there is a case discussed by Judge Redfield in Barrm v. Mason, 31 Vermont, 201, in which evidence such as ruled out in this case was thoroughly considered and admitted as proper evidence; and while Judge Redfield considered the general rule to be against it, yet he seemed to find enough in this case to hold the rule that the evidence was proper in that case. Since that, we find that a number of courts have ruled upon like testimony, and the rule laid down by Judge Redfield is the one that is now quite universally followed where the question arises. I read from the case of Pullen v. Glidden, in 68 Maine, 559, which is only one of a number of cases which I have examined : "Here, however, the precise question is whether evidence of common repute in the neighborhood that the plaintiff was guilty of the particular offense for which he was prosecuted, was rightfully received.” Then, referring to Judge Redfield's opinion, he said: 'Emphatically that such evidence ought to be regarded as one proof, though not a sufficient one in itself, of probable cause. We think he was right. Not only the facts which the defendant knew, but the information he had received, in fine, the circumstances under which he acted, even his own consultations with counsel learned in the law, if he took the advice of such, are competent evidence upon these questions of probable cause and malice in fact." There is much more of it, but that is all that is necessary to read. I wish to say that the very question here, among many other things, is discussed by Judge Redfield in the rejection of this evidence; and that is one of the cases where he held contrary to the current of authorities at that time, that the evidence should have been admitted, and that it was proper evidence in a case of this kind, and that rule has been followed. And then I read this case also in regard to the fact that such evidence is competent evidence upon this question of probable cause and malice. Some courts hold that it is a complete defense; others hold that it is not. This is an authority that holds that it is competent evidence upon this question, and that is all of this request asked for by counsel. And we think it was improperly ruled out, and for these two errors the case is reversed and remanded for further proceedings. Norton, Phillips, Ford and Crowl, Attorneys for Plaintiff in Error. Harris v. Harris. LIMITATION OF ACTIONS. [Licking Circuit Court, March Term, 1896.] Pomerene, Adams and Kibier, JJ. A. B. HARRIS AND ETTA HARRIS V. W. V. HARRIS. STATUTE OF LIMITATIONS, COMPUTATION OF TIME. Where plaintiff's cause of action accrued on the 16th of March, 1887, this day should not be included in the computation of the statute of limitations of six years, and therefore such cause of action is not barred on the 16th of March, 1893. ERROR to the Court of Common Pleas of Licking county. ADAMS, J. There was a trial in the court below, and a verdict and judgment against defendants, and in favor of W. V. Harris, plaintiff below. The case is brought here upon the single question made by a general demurrer to the amended petition. The court overruled that demurrer, and that is the only question that is presented for the consideration of this court. Briefly stated, the petition alleges that W. V. Harris, being a surety on a note for A. B. Harris and Etta Harris, in an action in the court of common pleas of this county, a judgment was rendered against all of the makers of the note, and that afterwards, on March 16, 1887, W. V. Harris paid the sum of $436.18 in full of that judgment; that that was paid for the benefit of the defendants below, and that it was their debt for which he was surety only. That payment was made on the 16th day of March, 1887. The original petition to recover that sum was filed in the court of common pleas on March 16, 1893, and a summons of that date was issued and served. So that the action was commenced March 16, 1893. The single question made by the demurrer is whether or not that claim was barred by the statute of limitations. That is a question on which there is a considerable conflict of authority, and upon that question this court is not unanimous; but we are agreed that Harris' right of action accrued to him on March 16, 1887; that instantly, upon the payment of that money, he had a right of action against the defendants below, and he could have maintained a suit for the recovery of that money, after the payment of the money, and on the same day, March 16, 1887, and that the six years' statute of limitations applies. Williams v. Williams, 5 Ohio St., 444; Neilson v. Fry, 16 Ohio St., 552. The question on which we are not agreed is as to how the six years shall be computed; whether the first day, March 16, 1887, shall be included or excluded. On that question, as I said before, the court is not agreed. Speaking for myself, it seems to me that section 4951, of the Revised Statutes, should control. Section 4951 reads: "(How time computed.) Unless otherwise specially provided, the time within which an act is required by law to be done, shall be computed by excluding the first day and including the last; and if the last be Sunday, it shall be excluded." That was an amendment of section 597 of the Code. Section 597 of the Code, reads as follows: |