TORTS-MALICIOUS PROSECUTION-ADVICE OF COUNSEL

Defendant, a practicing lawyer, lodged a complaint charging plaintiff with larceny. A criminal warrant was issued; plaintiff was arrested, but the action was dismissed when the complaining witness failed to appear at the trial. Plaintiff then brought this action for malicious prosecution. One of the grounds of defense pleaded was that which is commonly called advice of counsel, defendant pleading that, in his judgment, the plaintiff was guilty as charged. Held, in Mawhinney v. Morrissey, that, under the facts of this case, the defense fails because the attorney-defendant was not a disinterested party