sider that a given state of facts is sufficient evidence of probable cause, how can the private citizen be said to be in fault in acting upon such facts, and how can the state condemn him to damages for so doing? To decide so is to use the machinery of government as a trap to ensnare those who trust in government for such matters, and who ought to trust in it. If such officers make a mistake, it is an error of government itself, and government cannot allow the citizen to suffer for his trust in its proper functionaries. There are cases where the judgment of the lower grades of officers (Reynolds v. Kennedy, 1 Wils. 232; Whitney v. Peckham, 15 Mass. 243; Smith v. Macdonald, 3 Esp. 7; Leigh v. Webb, 3 Esp. 165; Ulmer v. Leland, 1 Me. 138, 10 Am. Dec. 48), and even of those who are not properly officers at all (Walter v. Sample, 25 Pa. 275; Williams v. Vanmeter, 8 Mo. 339), is sufficient to establish probable cause. If the party prosecuted should suffer from such mistakes, he must bear it as one of those accidents for which in the nature of things there can be no redress, for the government cannot make the prosecutor suffer for the injuries which it has itself through mistake committed. This would be the injustice of direct action, and not of mere omission or defectiveness. Besides this, in the trial of a cause it is always the duty of the court to pronounce the law arising on a given state of facts. And this again is only an exemplification of the principle of good sense that prevents us from applying to a schoolmaster or a preacher to instruct us in the arts of tanning or glass blowing, or to work at those trades for us."

In Shaul v. Brown, 28 Iowa, 37, 4 Am. Rep. 151, the court said: "It is claimed that the question of probable cause is purely a question of law for the court, and that the judge trying the cause may not instruct the jury what is probable cause in law and leave them to find whether such probable cause is proved in the case, but he must collate all the facts proved and fairly inferable from the evidence, and instruct the jury whether or not they constitute probable cause. No question has undergone more general discussion than the question of probable cause in actions for malicious prosecution. It is sometimes said to be purely a question of law for the court, and sometimes a mixed one of fact and law. See Center v. Spring, 2 Iowa, 393. Without entering at length into the discussion, we may remark that the question of probable cause in every case involves, first, the ascertainment of the facts from the evidence, and then the application of the law to the facts ascertained. This is precisely what is done in every case involving an issue of fact. Where the facts are conceded or few, or the evidence to establish them is brief, unquestioned, and uncontradicted, the court has directly before it the basis upon which to rest its application of the law. But, where the facts are complicated and disputed, or the evidence to establish them is

questioned and conflicting, the jury must find the facts, and of necessity the court must state the law as applicable to the facts hypothetically; that is, if the facts found shall be one way, the law is for plaintiff; if the other way, then for defendant, or the like. The proper method, under our practice, of instructing juries in every case of complicated or disputed facts is this hypothetical way, by molding the statement of the law to the peculiarities of fact developed by the proof, and making its application practical to the case in hand, instead of stating abstract legal propositions. But the correct statement of one or more abstract legal propositions in relation to the questions involved in the case has never been held to be so erroneous as to justify a reversal therefor. The question of probable cause in an action for malicious prosecution is not different in principle nor in its practical application from other questions of law resting upon facts to be found by a jury, and which arise in the every-day practice of courts. The efforts of some courts (see Bulkeley v. Smith, 2 Duer, 261) to make the question of probable cause sui generis, and to establish peculiar and im practical rules for its solution, unless rebuked and overturned, will lead to confusion and injustice in this class of actions. In actions for malicious prosecution, as in other actions, it is desirable and proper to call the attention of the jury to the facts which the evidence tends to establish, as they may be claimed by the respective parties or otherwise, and to state the law applicable to such different hypotheses of fact. A general statement of the abstract propositions of law upon which the whole case rests would not, of course, be erroneous. But the molding of the statement of the law to the particular facts of each case as disclosed by the evidence gives to the jury a more intelligible comprehension of the case, and hence leads to a more satisfactory verdict. This is substantially what is meant by most of the courts when they say that it is the duty of the judge to inform the jury if they find the facts to be proved, and the inferences to be warranted by such facts, that the same do or do not amount to probable cause, so as thereby to leave the question of fact to the jury and the abstract question of law to the judge. Panton v. Williams, 1 Gale & D. 504, 2 Q. B. 169, 10 L. J. Exch. N. S. 545: Bulkeley v. Keteltas, 6 N. Y. 384; 1 Hill, Torts, 438-444, and cases cited. To instruct the jury that if they find from the evidence that the defendant had probable cause (without stating what constitutes probable cause in law) to institute the criminal proceedings against the plaintiff, they should find for defendant; or the converse of it, whereby the question of probable cause as a fact is left to the jury.-is rightly held by all the authorities to be erroneous. Let us now turn from these general observations to the particular case before us. The instructions are too long for insertion at length in this opinion. We can

only copy those which are the leading instructions, and bearing directly upon the question of probable cause, remarking that the others are perfectly in accord and consistent with them. 'Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.' The burden is on the plaintiff to show affirmatively, by circumstances or otherwise, that the defendant had no ground for the prosecution-no such reasonable ground for suspicion, sufficiently strong in itself-as to warrant a cautious man in believing that the plaintiff was guilty of the offense charged. You cannot infer want of probable cause from malice. If you find that the defendant, previous to the commencement of the prosecution, believed the plaintiff to be an honest man; and find that the plaintiff and defendant, just before the taking of the pup in question by the plaintiff, disputed as to whether or not the plaintiff was entitled to the pup, the plaintiff claiming that he was, and the defendant denying it; and further find that defendant knew, when he commenced the prosecution, that plaintiff had taken said pup under a claim of right, and that he took it openly, and not secretly, in the daytime, and without other suspicious circumstances,-such facts would be evidence of want of probable cause. If, on the other hand, you find that the plaintiff took the pup in question secretly and without the knowledge of Brown, and concealed the same; and that such taking was, without any claim of right, known to Brown; and find that those facts alone were known to Brown; and that Brown made a reasonable effort to ascertain the facts of the case, and learned only the above; and find that Brown really believed that Shaul had stolen the pup, such facts would constitute probable cause. The question of probable cause does not depend on the question whether Shaul was guilty in point of fact, nor whether Brown, in fact, believed him guilty; but the question is, Were the facts and circumstances, within Brown's knowledge and upon which he acted, sufficient in themselves to raise a reasonable ground of suspicion in the mind of an ordinarily cautious man; and did Brown believe Shaul guilty? It will be seen by these instructions that the court gave to the jury the definition or legal statement of what constitutes probable cause in law, substantially as given by Mr. Justice Washington in Munns v. De Nemours, 3 Wash. C. C. 31, Fed. Cas. No. 9,926; found also in 1 Am. Lead. Cas. (Hare & W.) 200, which has been often approved. And the court also informed the jury that, if they found certain facts proved, such facts would show the want of probable cause; and if they found certain other facts proved, such facts would constitute probable cause. The court, therefore, complied with both phases of the rule as laid down in the various adjudicated cases found in the reports, and stated the re

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spective rules substantially correct. the case, following this, of Smith v. Howard, 28 Iowa, 51."

In Krehbiel v. Henkle, 142 Iowa, 677, 121 N. W. 378, the court said: "True, evidence of malice and want of probable cause for the prosecution must be shown in order to sustain a recovery of damages, but the question as to the existence of these elements of the case is ordinarily one for the jury to determine from a consideration of all the facts and circumstances. While the court may instruct the jury what acts will or will not constitute probable cause, the question whether those facts have been shown remains for the decision of the jury, except only in those cases where the testimony is so clear and undisputed that all reasonable minds must agree in reaching the same conclusion therefrom. Center v. Spring, 2 Iowa, 393. Such is not the case presented by the record before us. evidence tends very clearly to show both malice and want of probable cause; and if the jury believed the statements of the witnesses to be true, as it could rightfully have done, a verdict for appellant was inevitable."

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And, citing this case, the court in Wilson v. Thurlow, 156 Iowa, 656, 137 N. W. 956, said: "Except where the evidence is so clear and undisputed that all reasonable minds must reach the same conclusion therefrom, the question whether there was or was not probable cause must be determined by the jury. . There was evidence in this case from which the jury might [rightly] have concluded that the defendants did not exercise the degree of care required by the law, and that the charge was recklessly made."

In passing upon this question, the court in Atchison, T. & S. F. R. Co. v. Allen, 70 Kan. 743, 79 Pac. 648, reviewing a number of authorities, said: "The contention of plaintiff in error under the assignment referred to is that the trial court in effect left it to the jury to decide what facts would authorize the conclusion that there was or was not probable cause for the arrest of Allen, instead of confining them to a determination of what the facts were under the evidence, and declaring as a matter of law that probable cause was or was not shown, according to what the facts might be found to be. There was testimony that the railway company's depot had been broken into and a quantity of bottled whisky stolen from it; that on the next morning Allen had a bottle of whisky which, from its appearance, might have been a part of the stolen property, although by no means fully identified as such; that Allen had told Harmon that he had obtained the liquor from one Ed. Kinney on the day before the burglary as part payment on an account; that he had told another person that he had obtained it after the burglary; that what seemed to be a part of the stolen goods was afterward found in a livery stable where Allen kept his horses; that these matters, and perhaps also the fact

that Kinney denied having furnished any liquor to Allen, were communicated to Harmon before he swore to the complaint. There were other items of evidence affecting the question of probable cause, but this statement is sufficiently full for the purposes of the present discussion. The court did not in so many words submit to the jury unreservedly the broad general question whether or not, under all the evidence, probable cause for the prosecution had been established; but in the enumeration of the questions of fact to be passed upon in arriving at a conclusion in that regard, it included (with others of the same character), first, whether an ordinarily cautious and prudent man, having the information that came to Harmon before he instituted the prosecution against Allen, would have believed that the liquor shown to have been in Allen's possession on the morning after the larceny was a part of the stolen property; and, second, whether an ordinarily cautious and prudent man, under the circumstances shown, would have been satisfied from Allen's statement or explanation that he came by it rightfully. The inquiry presented is whether this constituted an infraction of the rule that in actions for malicious prosecution it is for the jury to determine only what facts are proved, and for the court to say whether or not they amount to probable cause. The courts are substantially unanimous in recognizing, theoretically at least, the existence of such a rule (Atchison, T. & S. F. R. Co. v. Smith, 60 Kan. 4, 55 Pac. 272; Drumm v. Cessnum, 58 Kan. 331, 49 Pac. 78; 19 Am. & Eng. Enc. Law, 2d ed. 669; 33 Century Dig. cols. 2003-2005). But variations in its practical application have produced a singular confusion in the authorities. For illustration, in Heyne v. Blair, 62 N. Y. 19, a majority of the judges say that even if there is no dispute in the evidence, if the facts shown are capable of different inferences, the question of the existence of probable cause is for the jury, adding: Such is the rule in all questions of the like character, and there is no reason why this class of action should form an exception to the rule.' On the other hand, in Driggs v. Burton, 44 Vt. 146, it was said in a carefully considered, and, as we think, a sound opinion: 'What constitutes probable cause in these actions is a question of law for the court. All inferences to be drawn from facts, undisputed or found by the jury to exist, are upon this subject inferences of law, and not of fact, and are to be drawn by the court, and not by the jury. This rule is peculiar to this class of actions, and has been long established, and is well founded upon sound reasons and good authority." The defendant in error cites Johnson v. Miller, 69 Iowa, 566, 58 Am. Rep. 231, 29 N. W. 743, in which it was said: 'When the prosecution was commenced, then, the defendants knew (1) that the property had been stolen by some person; (2) that by the plaintiff's own admission he had the stolen property in his pos

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session soon after the larceny; and (3) that he claimed to have acquired the possession of it by purchase from the man Smith. That the first two facts, standing alone, would have afforded probable cause for instituting the prosecution, cannot be denied; but it is equally apparent that, if plaintiff's story in explanation of his possession of the property is true, no ground for the prosecution existed. The question, then, whether there was probable cause depends upon whether the facts and circumstances of the transaction, as they were known and understood by the defendants, would have warranted an ordinarily prudent and cautious man in the belief that plaintiff's story as to how he acquired the possession was false. The answer to the question depends, then, upon the conclusion or deduction which should be drawn from the numerous facts and circumstances of the case, and we think it was the province of the jury to draw that conclusion. court could not say, as a matter of law, that the story was so unreasonable or improbable as to be unworthy of belief. It was properly left to the jury, and we cannot interfere with their finding.' If this case be accepted as an authority, it justifies the instructions given by the trial court; but we do not think it consistent with the rule referred to, which ordinarily is enforced in Iowa as well as elsewhere. See Erb v. German American Ins. Co. 112 Iowa, 357, 83 N. W. 1053. As indicated in the quotation given, under the circumstances there present the question whether the person arrested was guilty was narrowed down to the question whether his story as to how he came by the stolen property was false. If the circumstances warranted an ordinarily prudent and cautious person in believing that his story was untrue, then they warranted such a person in believing that he was guilty of the theft, and there was probable cause for his prosecution (19 Am. & Eng. Enc. Law, 2d ed. 657, 659). In allowing the jury to determine whether a man of ordinary prudence and caution would have believed the story told by the person accused, the court permitted them to decide whether probable cause existed for his arrest. There is an intimation in the language quoted that the case is to be distinguished from those in which it is held that the question as to what facts will constitute probable cause is one of law, upon the ground that deductions are required to be made from numerous circumstances. This consideration, however, will not serve for that purpose. If the court can declare that certain admitted or proved facts do or do not amount to probable cause only in case they are of such character that reasonable men cannot differ as to the conclusions to be drawn from them, then there is no difference in that regard between this class of cases and any other; for in any litigation where the facts are not disputed and admit of but one inference, nothing remains but for the court to declare their legal effect. But the rule referred to is