Folger v. Washburn

In an action for malicious prosecution, evidence' that the defendant, in instituting the prosecution, acted under the advice of counsel, is admissible under an answer containing a general denial only.

Tort, for malicious prosecution. The answer contained a general denial of each and every allegation in the declaration, and set up no other defence. At the trial in the Superior Court, before Knowlton, J., it appeared that the original suit, which the plaintiff alleged was instituted maliciously, and without probable cause, was a complaint charging him with giving the defendant a worthless check for $100, for a like amount lent to the plaintiff by the defendant. The defendant offered evidence tending to show that he consulted an attorney at law of this court, and, upon his advice, made and signed the complaint. The plaintiff objected that this evidence was inadmissible under the answer, on the ground that it was a substantive and material fact, of which the defendant could not avail himself, unless set up in the answer. The judge overruled the objection, and admitted the evidence. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.