tion of fact for the jury; but if want of probable cause is the question, this deduction to be drawn from supposed or admitted facts is always a question of law for the court to decide. The reverse of this, however, is emphatically true where the quesWas the defendant actuated by malice? This is always a question of fact for the jury. The court has no right in any case to instruct the jury that certain supposed or admitted facts constitute malice. It must be left to the jury in every case not only to determine the facts, but also to determine whether from the facts malice can be inferred. The court can never from any facts infer malice. It is emphatically a question of fact, and not of law. Into its decision not only the facts of the case, but also the opinions and motives of the defendant, must largely enter, and upon such opinions and motives the jury, and the jury only, should pass. The court cannot decide on the motives and opinions of the defendant wisely. In its nature such a question is emphatically a question of fact."

certainty so apparent in many of the de-ent where the question is whether probable cisions, as to what is probable cause, cause does or does not exist. In such a which we have cited. There is a very case, however complicated the facts and marked difference between the manner in circumstances may be, if they are admitted which a question of negligence is general- or supposed to exist, the court is always ly to be decided, and a question of probable more competent to decide whether, as a cause. Both of these questions have fre- reasonable man, the defendant should have quently been called mixed questions of law instituted the prosecution. To determine and fact; but they are so in very different such a question, no matter how numerous senses. If the facts are numerous and and complicated the supposed facts may be, complicated, the question whether such the court is peculiarly fitted, as it must facts admitted or supposed to be true largely depend on correct views of the law. constitute or do not constitute negligence A jury would be peculiarly unfitted to deis generally a question of fact for the de- termine wisely such a question. In its termination of the jury, and the court nature it is a question of law, and not of would err if it instructed the jury that fact. That is, if negligence be the quescertain complicated facts, which must, in tion, the deduction to be drawn from supthe nature of the case, depend upon sur-posed or admitted facts is generally a quesrounding circumstances for their quality, did or did not constitute negligence. But the reverse of this is true when the question is whether there be or be not probable cause. Though in such case the facts be numerous and complicated, the question whether they constitute probabletion is: cause, if such facts be true, is still a question of law for the court to determine; and therefore in every case the court may properly instruct the jury that certain facts, if found to be true by the jury, constitute or do not constitute probable cause. See Panton v. Williams, 2 Q. B. 169, 1 Gale & D. 504, 10 L. J. Exch. N. S. 545; Brown v. Connelly, 5 Blackf. 390. In the first of these cases the court says: 'Upon this bill of exceptions we take the broad question between the parties to be this: whether in a case in which the question of reasonable and probable cause depends not upon a few simple facts, but upon facts which are numerous and complicated, and upon inferences to be drawn therefrom, it is the duty of the judge to inform the jury, if they find the facts proved and the inferences to be warranted by such facts, the same do or do not amount to reasonable or probable cause, 3. Taking opinion of jury as to the so as thereby to leave the question of fact to the jury and the abstract question of law to the judge? And we are all of the opinion that it is the duty of the judge so to do.' The reverse of this would be true if the question had been one of negligence, and not of one of probable cause. All that is left to the jury on a question of probable cause are the facts of the case, and on any assumed state of facts, however complicated, it is for the court alone to determine whether probable cause does or does not exist. But such is not the case where the question is one of negligence. The reason of this distinction is obvious. On the question of negligence, what a reasonable person would do under a complicated state of facts and circumstances should be left to the jury to determine. The court is obviously less competent and fitted to decide such a question than an ordinary business man. Such a man can more wisely decide how, under complicated facts and circumstances, a reasonable man ought to act, than could a court. It is in its nature a question of fact, and not of law. But it is very differ

facts.

(a) Special verdict.

As has been said, probable cause is in the nature of a judgment to be rendered by the court upon a special verdict of the jury, and is not to be rendered until after the jury has given its verdict upon the facts by which it is to be determined. Ball v. Rawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937; Hess v. Oregon German Baking Co. 31 Or. 503, 49 Pac. 803.

This practice of requiring specific findings of the jury on the facts in cases of this kind has much to commend it to the profession, and should be frequently resorted to.

But, surprising as it is, only a few cases have been found approving the practice. Burton v. St. Paul, M. & M. R. Co. 33 Minn. 189, 22 N. W. 300; Lammers v. Mason, 123 Minn. 204, 143 N. W. 359; Erb v. German American Ins. Co. 112 Iowa, 359, 83 N. W. 1053; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650; Helwig v. Beckner, 149 Ind. 131, 46 N. E. 644, 48 N. E. 788;

Indiana Bicycle Co. v. Willis, 18 Ind. App. | v. Crane, 104 Mich. 6, 61 N. W. 1007; Goode 525, 48 N. E. 646; Taylor v. Baltimore & O. S. W. R. Co. 18 Ind. App. 692, 48 N. E. 1044; Cooper v. Flemming, 114 Tenn. 52, 68 L.R.A. 849, 84 S. W. 804.

What constitutes probable cause is a question of law for the court to determine; and where a special verdict is returned, the jury must find the facts; and upon the facts found the court must, as a matter of law, decide whether there was probable cause. Helwig v. Beckner, 149 Ind. 131, 46 N. E. 644, 48 N. E. 788.

Where a special verdict is returned in an action for malicious prosecution the question of probable cause for the prosecution complained of is not a fact to be found by the jury, but the jury must find the facts, and upon the facts found by the jury the court must, as a matter of law, determine whether there was or was not probable cause. Indiana Bicycle Co. v. Willis, 18 Ind. App. 525, 48 N. E. 646.

v. Eslow, 151 Mich. 48, 114 N. W. 859; Burton v. St. Paul, M. & M. R. Co. 33 Minn. 189, 22 N. W. 300; Lammers v. Mason, 123 Minn. 204, 143 N. W. 359; Hill v. Palm, 38 Mo. 13; Dreyfus v. Aul, 29 Neb. 191, 45 N. W. 282; Leahey v. March, 155 Pa. 458, 26 Atl. 701; Burk v. Howley, 179 Pa. 539, 57 Am. St. Rep. 607, 36 Atl. 327; Weinberger v. Shelly, 6 Watts & S. 336; Bruff v. Kendrick, 21 Pa. Super. Ct. 468; Bryant v. Kuntz, 25 Pa. Super. Ct. 102. And see other cases cited supra, III. b, 1, which need not be here repeated.

Or, as many cases say, under proper instructions from the court as to the law to be applied, it seems, according as one state of facts or another is found. Hardin v. Hight, 106 Ark. 190, 44 L.R.A.(N.S.) 368, 153 S. W. 99; Lancaster v. McKay, 103 Ky. 616, 45 S. W. 887; Davis v. Cassidy, 23 Ky. L. Rep. 955, 64 S. W. 633; Kidder v. Parkhurst, Allen, 393; Hart v. Leitch, Md.

Probable cause is a legal conclusion to be, 91 Atl. 782; Lammers v. Mason, 123 drawn by the court from the facts, and where the facts are found, and are beyond dispute, as in the case where the jury returns a special verdict, the question whether the undisputed facts do or do not constitute probable cause is a pure question of law to be decided by the court, and with which the jury has nothing to do, they having agreed upon the facts and presented them to the court by their special verdict. And where in such case the jury, in answer to an interrogatory, volunteers the additional answer, not elicited by the question, that the prosecution was without probable cause, such answer is properly disregarded by the court. Taylor v. Baltimore & O. S. W. R. Co. 18 Ind. App. 692, 48 N. E. 1044.

And see, supra, III. b, 1, English cases following the Abrath Case.

(b) Instructions to the jury.

(1) Generally.

But, while probable cause, as just pointed out, is in the nature of a judgment to be rendered by the court upon a special verdict of the jury, it is not necessary that the facts be found by the jury in the form of a special verdict. For the prevailing practice in most jurisdictions for obtaining the opinion of the jury on its particular phase of the case is by submitting the question of probable cause to the jury with instructions from the court as to what facts do or do not amount to probable cause. Stewart v. Sonneborn, 98 U. S. 196, 25 L. ed. 120; Sanders v. Palmer, 5 C. C. A. 77, 14 U. S. App. 297, 55 Fed. 217; Erb v. German American Ins. Co. 112 Iowa, 357, 83 N. W. 1053; Walker v. Culman, 9 Kan. App. 691, 59 Pac. 606; Lancaster v. Langston, 18 Ky. L. Rep. 299, 36 S. W. 521; Moore v. Large, 20 Ky. L. Rep. 409, 46 S. W. 508; Hemmenway v. Woods, 1 Pick. 524; Hamilton v. Smith, 39 Mich. 222; Wilson v. Bowen, 64 Mich. 133, 31 N. W. 81; Huntington v. Gault, 81 Mich. 144, 45 N. W. 970; Rankin

Minn. 204, 143 N. W. 359; Sharpe v. Johnston, 59 Mo. 557; Moody v. Deutsch, 85 Mo. 237; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650; Carp v. Queen Ins. Co. 203 Mo. 295, 101 S. W. 78; March v. Vandiver, 181 Mo. App. 281, 168 S. W. 824; Hanna v. Minnesota L. Ins. Co. 241 Mo. 383, 145 S. W. 412; Ritter v. Ewing, 174 Pa. 341, 34 Atl. 584; Acker v. Gundy, 9 Sadler (Pa.) 452, 12 Atl. 595; Ramsey v. Arrott, 64 Tex. 320; Garrison v. Pearce, 3 E. D. Smith, 255; Thompson v. Lumley, 50 How. Pr. 105; Gorton v. De Angelis, 6 Wend. 418; Weaver v. Townsend, 14 Wend. 192; Bulkeley v. Keteltas, 6 N. Y. 387; Burns v. Erben, 40 N. Y. 463; Fagnan v. Knox, 66 N. Y. 525, reversing 8 Jones & S. 41; Rhodes v. Brandt, 21 Hun, 1; Kline v. Hibbard, 80 Hun, 50, 29 N. Y. Supp. 807, affirmed without opinion in 155 N. Y. 679; Clark v. Palmer, 116 App. Div. 117, 101 N. Y. Supp. 759, affirmed without opinion in 191 N. Y. 540, 84 N. E. 1110; Goodman v. Bedras, 123 N. Y. Supp. 250; Palmer v. Palmer, 8 App. Div. 331, 40 N. Y. Supp. 829; Schmidt v. Medical Soc. 142 App. Div. 635, 127 N. Y. Supp. 365, appeal dismissed in 206 N. Y. 730, 100 N. E. 1133; Memphis Gayoso Gas Co. v. Williamson, 9 Heisk. 314.

So, in Hamilton v. Smith, 39 Mich. 222, the court said: "It is the province of the jury to ascertain what state of facts exists, and it is the province of the judge to decide whether that state of facts constitutes probable cause; and the law intends that these functions shall be kept distinct. But as the law appropriate to the facts cannot be laid down unequivocally until it is ascertained what the facts are, it is found necessary where they are in dispute to submit the whole subject to the jury under proper instructions as to the rule of law to be applied according as they find one state of facts or another. The law belonging to any state of facts subject to be found being given to them in advance, they are enabled, on coming to an agreement as to what is the true state of facts, to apply the law delivered to

them as belonging thereto, and to formulate | v. Utterbach, 37 Md. 317; McWilliams v. the result. Here the facts were in dispute, Hoban, 42 Md. 56; Humphries v. Parker, 52 but the judge failed to give proper attention to this distinction, and also neglected to define or explain probable cause, and the jury returned a general verdict. In such a state of things it is impossible to find out what combination of facts the jury ascertained, or whether they had any intelligent idea at all of this feature of the case." This language is quoted in Wilson v. Bowen, 64 Mich. 133, 31 N. W. 81.

But

that if they find the defendants did not | the jury. It is permissible, therefore, for honestly believe, or have reason to believe, a court to instruct the jury that certain it to be true, no probable cause existed for facts and circumstances, if they exist, are the prosecution. If the affidavit referred sufficient to constitute probable cause. to was the basis of the prosecution and all it is not permissible for a court to submit of the evidence introduced tending to show the question of the existence or nonexistence probable cause, the instruction might not of such facts and circumstances to the jury be subject to criticism, but there is other either upon a partial enumeration of them, or upon a part only of the evidence releevidence tending to prove a state of facts To illustrate, an inwhich, if found to be true, would constitute vant to that issue. probable cause. The court wholly ignores struction which tells the jury that certain this evidence, and, in effect, tells the jury evidence adduced by the defendant, if true, that the only basis for the prosecution, and establishes facts and circumstances which from which they had a right to say the de- amount to probable cause, omitting other fendants had or had not probable cause for material elements entering into that questhe institution thereof, arises from whether tion, and ignoring the countervailing evidence of the plaintiff relevant to that or not they honestly believed, or had reason The proposition is obto believe, the statements contained in the issue, is erroneous. affidavit. There were other facts and cir- vious, and does not require elaboration. cumstances which might fairly be found Such an instruction comes within the proand inferred from the evidence, which would scription of that line of decisions which hold that an instruction must not call have constituted probable cause, as well as an honest belief or reason for believing the special attention to a part only of the evitruthfulness of the statements contained dence and the fact which it tends to prove, and disregard other evidence relevant to in the affidavit." the matter in issue." In this case an agent was arrested on a charge of embezzlement, and there was evidence tending to support the charge, but there was also evidence tending to show that the principal and agent had agreed to occupy the relation to each other of debtor and creditor, and that the defendant knew of this fact; but this evidence was ignored by the trial court in its instruction. The circumstance of the relation of debtor and creditor, of course, had an important bearing upon the question of probable cause, and ought not to have been excluded from the instruction.

It seems that when the court, after all the evidence is in, has to. deal with the question of probable cause, it would be highly improper to allow a particular part of the testimony, disconnected from all the other conceded facts and circumstances of the case, to be selected as the hypothesis for the determination of the jury, and upon that alone to declare there was probable cause for the prosecution, and thus defeat the action. McWilliams v. Hoban, 42 Md.

56.

Where, in its hypothetical instructions to the jury, the court, at the request of plaintiff, very briefly and meagerly grouped the facts which would constitute a want of probable cause, and instructed the jury that if they found those facts to be true, the verdict should be in favor of the plaintiff; and at the request of defendants very fully grouped the facts which the evidence tended to prove, and instructed the jury that if they found these facts to be true, then they constituted probable cause for the prosecution against the plaintiff, and the verdict should be for the defendants,it was held in Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703, that the fact that the facts, as grouped at the request of plaintiff, were insufficient to show a want of probable cause, could not have misled the jury, when all the instructions were read together, as the jury must be presumed to have understood that if the facts, grouped at the request of the defendants, were not found to be true, then there necessarily must have been a want of probable

cause.

as

In Boush v. Fidelity & D. Co. 100 Va. "The 735, 42 S. E. 877, the court said: question of probable cause emb: aces a mixed Whether the proposition of law and fact. evidence relied on, if true, establishes facts which amount to probable cause, is a question of law for the court, but whether such evidence is true is a question of fact for

"It is now the established doctrine, both in this country and in England, that what facts and circumstances amount to probable cause is a question of law, but whether In this these facts and circumstances exist in the particular case is for the jury. state the jury are instructed hypothetically as to what constitutes probable cause, leaving it to them to find the facts emBoyd v. Cross, braced in the hypothesis. But when the court has to 35 Md. 197. deal with such a case after the evidence is all in, it would be highly improper to allow a particular part of the testimony, disconnected from all the other conceded facts and circumstances of the case, to be selected as the hypothesis, and upon that alone to declare there was probable cause for the prosecution, and thus defeat the action. Such a course would in many instances defeat the ends of justice." Stansbury v. Fogle, 37 Md. 369.

Where a prayer instructs the jury that the plaintiff is entitled to recover if certain facts are found to exist, its effect is to withdraw from the consideration of the jury all facts other than those specified, and the rule is that the prayer is erroneous if the facts which it excludes admit of a conclusion different from the one to which it is directed. Hart v. Leitch, 91 Atl. 782.

Md.,