that he was actuated in his conduct by malice, or some improper or sinister motive. Malice is essential to the maintenance of any such action, and not merely (as the circuit court thought) to the recovery of exemplary damages. Notwithstanding what has been said in some decisions of a distinction between actions for criminal prosecutions and civil suits, both classes at the present day require substantially the same essentials. Certainly an action for instituting a civil suit requires not less for its maintenance than an action for malicious prosecution of a criminal proceeding.

"The existence of a want of probable cause is, as we have seen, essential to every suit for a malicious prosecution. Both that and malice must concur. Malice, it is admitted, may be inferred by the jury from want of probable cause, but the want of that cannot be inferred from any degree of even express malice.

"In every case of an action for a malicious prosecution or suit, it must be averred and proved that the proceeding instituted against the plaintiff has failed, but its failure has never been held to be evidence of either malice or want of probable cause for its institution; much less that it is conclusive of those things.

"If the jury believed from all the evidence that A. T. Stewart & Co. acted on the advice of counsel in prosecuting their claim against Sonneborn in the Circuit Court of Barbour County, and upon such advice had an honest belief in the validity of their debt, and their right to recover in said action; and in the institution of the bankruptcy proceedings acted likewise on the advice of counsel, and under an honest belief that they were taking and using only such remedies as the law provided for the collection of what they believed to be a bona fide debt, they having first given a full statement of the facts of the case to counsel, then there was no such malice in the wrongful use of legal process by them as would entitle the plaintiff to recover in this form of action."

There is a very serious doubt whether the insular courts should have taken jurisdiction in this case at all, arising as it did from costs and expenses incurred in the United States courts, and which were virtually settled in the judgment of that court. But as this question is not raised, it need not be decided.

Taking the case as presented, with all the record before us, and with all the evidence which was introduced in the trial (which, however, is but meagre), Crosas has failed to make out

any case against Battistini justifying any court in rendering a judgment against him, and for that reason the judgments of the District Court of Ponce and the municipal court of the same district should be annulled, and the said municipal court is ordered to enter another judgment in favor of Battistini, releasing him from all claims presented against him by Crosas, and adjudging the costs in his favor and against Crosas. The costs of this proceedings should also be adjudged against the respondent.

Application granted.

Chief Justice Quiñones and Justices Hernandez, Figueras and Wolf concurred.

OPINIONS PER CURIAM, ETC., FROM JANUARY, TO

DECEMBER, 1905.

No. 39. GARCÍA v.

Court of Mayaguez.

ROIG ET AL.-Appeal from the District Decided January 9, 1905. The appeal was dismissed on the ground that the appellant had not complied with the provisions of sections 51 and 54 of the Regulations. Mr. Ramírez, for appellant.

No. 40. ROIG v. GARCÍA.-Appeal from the District Court of Mayaguez. Decided January 9, 1905. The appeal was dismissed on the ground that the appellant had not complied with the provisions of sections 51 and 54 of the Regulations. Mr. Ramírez, for appellant.

No. 27. COLÓN ET AL. v. ESTATE OF VILLARONGA.-Appeal from the District Court of Humacao. Decided January 9, 1905. The appeal was dismissed on the ground that the appellant had not complied with the provisions of section 54 of the Regulations. Mr. Bernardini, for plaintiff; Mr. Eduardo Acuña, for defendant.

No. 65. BERENGUER v. MARTÍNEZ ET AL.-Appeal from the District Court of Mayaguez. Decided January 11, 1905. The appeal was dismissed on the ground that the appellant had not complied with the provisions of section 54 of the Regulations. Messrs. Horton and Cornwell, for appellant; Mr. Smith, for respondent.

573

No. 32. MÉNDEZ v. RIOS ET AL.-Appeal from the District Court of Aguadilla. Decided January 11, 1905. Withdrawn on motion of the appellant. Mr. Vázquez, for appellant.

No. 57. EX PARTE MARRERO.-Appeal from the District Court of San Juan. Decided January 19, 1905. Withdrawn on motion of the appellant. Mr. Hawkins, for appellant.

No. 4. FERNÁNDEZ v. MOJICA.-Appeal from the District Court of San Juan. Decided January 23, 1905. Motion to dismiss the appeal on the ground that the appellant had not presented the transcript of the record within twenty days after filing notice of appeal. The motion was dismissed. Messrs. Coll Cuchi and Antonsanti, for petitioner; Messrs. Acuña and Méndez, for opponent.

No. 67. RAMÍRez v. MontalvE.-Appeal from the District Court of Mayaguez. Decided January 30, 1905. The appeal was dismissed on the ground that the appellant had not-complied with the provisions of sections 229 of the Code of Civil Procedure, and 51 and 54 of the Regulations. Messrs. Acuña and Méndez, for petitioner and respondent; Mr. Ramírez, for opponent.

No. 8. ESTATE OF LANGE v. AQUILUE.-Appeal from the District Court of Mayaguez. Decided January 30, 1905. The appeal was dismissed owing to the appellant not having complied with the provisions of sections 299 of the Code of Civil Procedure, and 50, 51, and 54 of the Regulations. Mr. Vázquez, for appellant.

No. 7. CORRADA v. GARCÍA.—Appeal from the District Court of San Juan. Decided January 30, 1905. The appeal was dismissed on the ground that the appellant had not complied with the provisions of section 299 of the Code of Civil Procedure and 50, 51, and 54 of the Regulations. Messrs. Acuña and Méndez, for appellant.

No. 2. DOMENECH V. ROLA.-Appeal from the District Court of Aguadilla. Decided February 13, 1905. Motion to dismiss the appeal on the ground that the appellant had not complied with the provisions of section 51 of the Regulations. Motion dismissed on the grounds of the opinion in the case of Finlay v. Finlay & Waymouth Bros. Trading Co., 7 P. R. Reports, p. 546. Mr. Franco Soto, for petitioner; Mr. Vázquez, for opponent.

No. 12. CHAPMAN v. FERNÁNDEZ.-Appeal from the District Court of Mayaguez. Decided February 13, 1905. The appeal was dismissed by reason of the appellant not having complied with the provisions of sections 299 of the Code of Civil Procedure, and 50, 51, and 54 of the Regulations. Mr. Smith, for appellant; Mr. Ramírez, for respondent.

No. 13. PORTO RICO SALT Co. v. COLBERG.-Appeal from the District Court of Mayaguez. Decided February 20, 1905. The appeal was dismissed on the ground that the appellant had not complied with the provisions of section 299 of the Code of Civil Procedure, and 50, 51 and 54 of the Regulations. Messrs. Acuña and Méndez, for appellant.

No. 14. EL BANCO DE PUERTO RICO v. PÉREZ ET AL.-Appeal from the District Court of Arecibo. Decided February 20, 1905. The appeal was dismissed owing to the appellant