whether the defendant was actuated by proper motives, and acted in good faith. In Brown v. McBride, 24 Misc. 235, 52 N. Y. Supp. 620, "The court charged the jury that even though the defendant may have stated all of the facts to his counsel, | and acted upon his advice, that did not make a case of probable cause, and thus entitle the defendant to a verdict. This is a subject upon which there has been much of inadvertence, it being often said that advice of counsel that the plaintiff was guilty of the offense, given upon all of the facts, is a complete defense; but that this is not the rule is no longer open to discussion with us. Hazzard v. Flury, 120 N. Y. 223, 24 N. E. 194. Where the undisputed facts make the question of probable cause for the court, advice of counsel is of no weight on that head. Where the question is for the jury, advice of counsel is material, and no doubt of much weight in respect of whether there was probable cause; viz., whether the facts and appearances were such as would lead a reasonably careful person to believe that the plaintiff was guilty of the offense. It is also material, even though lack of probable cause be found, on the question of the existence of that degree of malice which is a necessary ingredient to the cause of action, and also on the question of whether the defendant had that higher degree of malice for which smart money may be given." And see to the same effect, Parr v. Loder, 97 App. Div. 218, 89 N. Y. Supp. 823, appeal dismissed in 180 N. Y. 531, 72 N. E. 1146, and 182 N. Y. 509, 74 N. E. 1121.

b. Where there is a dispute.

1. in general.

Healey v. Aspinwall, 195 Mass. 446, 81 N. E. 256; Anderson v. Friend, 71 Ill. 475; Schattgen v. Holnback, 149 Ill. 646, 36 N. E. 969; Chicago Forge & Bolt Co. v. Rose, 69 Ill. App. 123; Mundal v. Minneapo lis & St. L. R. Co. 92 Minn. 26, 99 N. W. 273, 100 N. W. 363; Nelson v. International Harvester Co. 117 Minn. 298, 135 N. W. 808; Shea v. Cloquet Lumber Co. 92 Minn. 348, 100 N. W.` 111, 1 Ann. Cas. 930; Jackson v. Bell, 5 S. D. 257, 58 N. W. 671; Krause v. Bishop, 18 S. D. 298, 100 N. W. 434; Tandy v. Riley, 26 Ky. L. Rep. 98, 80 S. W. 776; Gatz v. Harris, 134 Ky. 550, 121 S. W. 462; Hardin v. Hight, 106 Ark. 190, 44 L.R.A. (N.S.) 368, 153 S. W. 99; Govaski v. Downey, 100 Mich. 429, 59 N. W. 167; Thompson v. Price, 100 Mich. 558, 59 N. W. 253; LeClear v. Perkins, 103 Mich. 131, 26 L.R.A. 627, 61 N. W. 357; Thurkettle v. Frost, 137 Mich. 115, 100 N. W. 283, 4 Ann. Cas. 836; Phiscator v. Rice, 147 Mich. 411, 110 N. W. 1095; DeBoer v. Adams, 159 Mich. 560, 124 N. W. 540; Kelley v. Paulsen, 162 Mich. 169, 127 N. W. 13; McNamee v. Nesbitt, 24 Nev. 400, 5 Pac. 37; Evans v. Atlantic Coast Line R. Co. 105 Va. 72, 53 S. E. 3; Drake v. Vickery, 81 Kan. 519, 106 Pac. 290; Roby v. Smith, 40 Okla. 280, 138 Pac. 141; Pinson v. Campbell, 124 Mo. App. 260, 101 S. W. 621; March v. Vandiver, 181 Mo. App. 281, 168 S. W. 824; Noblett v. Bartsch, 31 Wash. 24, 96 Am. St. Rep. 886, 71 Pac. 551; Voss v. Bender, 32 Wash. 566, 73 Pac. 697; Spear v. Hiles, 67 Wis. 350, 30 N. W. 506; Fellows v. Hutchison, 12 U. C. Q. B. 633.

And it is error in such case to take the case from the jury and direct a verdict for the defendant. Drake v. Vickery, 81 Kan. 519, 106 Pac. 290.

In Voss v. Bender, 32 Wash. 566, 73 Pac. which was an action upon an attachment bond to recover damages for alleged

521.

out of an attachment, the court said: "It next argued that appellants' motion for a judgment should have been granted because appellant Bender had reasonable and probable cause to believe the grounds upon One of apwhich the attachment issued. that Bender stated the facts to him, and pellants' attorneys testified substantially examined by the attorney, and that he produced certain other witnesses, who were argued that, because of this advice, probthereupon advised the attachment. able cause for the attachment will be presumed. It was said by this court in Levy v. Fleischner, 12 Wash. 15, 40 Pac. 384:

It is

that one of the attorneys advised the attachment, but it was disputed that all the facts in the case had been submitted to him, and it was claimed by respondent that the evidence of appellant Bender shows that he had stated to his attorney as facts things which he knew were untrue, and had no reason to believe. Where the attorney is falsely informed as to the facts, and is not put in possession of all of the facts, the advice of the attorney is not conclusive. The question of probable cause must then be left to the jury. In Levy v. Fleischner, this court quoted approvingly from Burton v. St. Paul, M. & M. R. Co. 33 Minn. 189, 22 N. W. 300, as follows: 'What facts, and whether particular facts, constitute a probable cause, is a question exclusively for the court. What facts exist in a particular case, where there is a dispute in reference to them, is a question exclusively for the jury. When the facts are in controversy, the subject of probable cause should be submitted to the jury, either for specific findings of the facts, or with instructions from the court as to what facts will constitute probable cause. "These rules," says the court, "involve an apparent anomaly, and yet few, if any, rules of the common law, rest upon a greater unanimity or strength of authority;" citing many authorities.' The trial court in this case fully and fairly instructed the jury, in substance, that if they found that appellant Bender in good faith related to his attorney all the facts in the case, and that the attorney in good faith investigated the facts, and thereupon advised the attachment, respondent could not recover. But, if they found that Bender did not truthfully state the facts to his attorney, and made statements which were false, and upon such statements the advice was given, such advice would not constitute a defense to the action. These instructions were proper, and the finding of the jury upon the facts is conclusive now."

cence, the question of reasonable cause cannot be determined by the court, as a matter of law, because that question depends upon facts in dispute, and is therefore for the jury's determination under proper instructions. Baer v. Chambers, 67 Wash. 357, 121 Pac. 843, Ann. Cas. 1913D, 559. In Walker v. Culman, 9 Kan. App. 691, 59 Pac. 606, the trial court instructed the jury as follows: "It is a good defense to an action for malicious prosecution that the defendant, before commencing the alleged malicious prosecution, presented the matter to the county attorney, fairly stating to him all the facts, and then in good faith following the advice of the county attorney. Such a thing completely rebuts the allegation of the plaintiff that there was want of probable cause. So in this case, if you should be satisfied from the preponderance of the evidence that the defendant J. A. Mathews, before the commencement of the prosecution complained of, did, in good faith, lay the whole matter before the county attorney, fairly stating to him all the facts, and that after so doing the county attorney instituted the prosecution complained of, or advised the said defendant Mathews to so institute the same, then and in such case the plaintiff cannot recover in this action against the said defendants, or either of them." The court said: "The testimony of Mathews and the county attorney, which is undisputed upon this point, clearly shows that the matter was fairly, fully, and in good faith stated to the county attorney, and that he found the statements to have been true, and Mathews acted thereon in good faith. This instruction correctly states the law (Dolbe v. Norton, 22 Kan. 101), and was clearly ignored by the jury."

Jonasen v. Kennedy, 39 Neb. 313, 58 N. W. 122, is to the same effect.

3. - as to good faith of defendant.

It is a question for the jury to determine whether or not a defendant acted in good faith upon the legal advice given him, and brought the suit or made the accusation fully believing that he had a good cause of action against the plaintiff, or that the latter was guilty of the offense with which he was charged. Thompson v. Lunley, 50 How. Pr. 105.

"If a party lays the facts of his case fully and fairly before counsel, and acts in good faith upon the opinion given him by such counsel (however erroneous that opinion may be), it is sufficient evidence of a probable cause, and is a good defense to an action for a malicious prosecution, or for a malicious arrest. But in such a case it is properly a question for the jury whether such party acted bona fide on the opinion given him by his professional adviser, believing that the plaintiff was guilty of the crime of which he was accused, or that he had a good cause of action against the plaintiff. Ravenga v. Mackintosh, 2 Barn. & C. 693, 4 Dowl. & R. 107, 1 Car. & P. 204, 16 Eng. Rul. Cas. 742." Hall v. Suydam, 6 Barb. 83.

And it is for the jury to say whether the attorney consulted acted impartially, or whether he was in collusion with defendants, and advised the commencement of the prosecution from, some ulterior motive rather than from a purpose to vindicate the law and prevent a breach of the peace. See Shea v. Cloquet Lumber Co. 92 Minn. 348, 100 N. W. 111, 1 Ann. Cas. 930, for this.

In Bilingsley v. Maas, 93 Wis. 176, 67 N. W. 49, the court said: "It is said that the court should have set aside the verdict as against the evidence, upon the ground that 'probable cause' was conclusively established. This is based upon the evidence to the effect that the defendants made a full and complete statement of the facts to their attorney, that on such statement they were advised by such attorney that plaintiff was guilty, and that they honestly believed and acted upon such advice, in good faith, in instituting the prosecution. Such facts, established to the satisfaction of the jury, or appearing conclusively from the evidence, are fatal to a recovery. Cooley, Torts, 2d ed. 212; Sutton v. McConnell, 46 Wis. 269, 50 N. W. 414; Stewart v. Sonneborn, 98 U. S. 187, 25 L. ed. 116. But while the defendants testified that they made a full and complete statement of the facts to their attorney, and this was corroborated by such attorney, and that they acted upon his advice and in good faith, whether they did act in good faith, in fact, was a material question to be determined, and was disputed. Therefore, though the direct evidence was to the effect that they made a

vice, and acted in accordance therewith, still the fact of whether they acted honestly and in good faith, without any ulterior motive, was for the jury, if, on the whole case, as made by the evidence, persons of different minds might reasonably draw different inferences therefrom in respect to such question. Stewart v. Sonneborn, supra. That such was the condition of the case was the conclusion of the trial judge, and we are unable to say wherein he was wrong, or that there was an abuse of discretion in refusing to set the verdict aside and grant a new trial on the ground that it is against the weight of evidence in respect to the facts constituting plaintiff's right to recover."

In Leyenberger v. Paul, 40 Ill. App. 516, whether defendant believed in the advice of counsel is held to be a question for the jury.

And see Kehl v. Hope Oil Mill & Compress Co. 77 Miss. 762, 27 So. 641, holding that uncontroverted evidence that defendant took advice of reputable counsel does not entitle him to a peremptory instruction where there is evidence tending to show a want of probable cause and that he did not act in good faith upon such advice, as the question of the good faith of defendant is one for the decision of the jury.

VII. Conclusion.

The rule that the question of probable cause in an action for malicious prosecution is for the court, and not for the jury, although undoubtedly anomalous in that it substitutes the judgment of the court for that of the jury as to the reasonableness of the defendant's conduct in the light of the admitted or established facts and beliefs, is nevertheless, except in a few jurisdictions, established by the overwhelming weight of authority. The rule in its origin is probably traceable to the apprehension of the courts that if the question of probable cause were left to juries, they might not sufficiently safeguard the rights of defendants, and so discourage the performance of a public duty of laying informations against persons believed to have committed offenses, and hamper the administration of the criminal law. These practical considerations seem to have prevailed over the theoretical objections against invading the province of the jury and withdrawing from them what is essentially an inference of fact rather than of law; namely, whether defendant acted as a reasonably prudent man would have acted in the circumstances.

It will be observed, however, that the rule withdraws from the jury only the inference as to the ultimate question whether the defendant, in view of the facts known to him and the beliefs entertained by him,-facts and beliefs established by undisputed evidence, or found by the jury upon disputed evidence,-acted as a reasonably prudent man. The rule leaves for the determination of the jury all questions as to the credi

bility of witnesses, and the weighing and balancing of conflicting evidence on disputed points of fact, and the final determination of all facts and inferences, including the inference as to the belief entertained by defendant in respect of the plaintiff's guilt, save only the ultimate inference as to whether his belief and conduct were those of an ordinarily prudent man in view of all the circumstances. In other words, there is no invasion of the province of the jury so far as concerns the belief and conduct of the defendant, but only so far as concerns the characterization of that belief and conduct as reasonable or unreasonable.

While there is considerable apparent conflict or confusion in the cases as to the practical consequences and effect of the adoption of the rule, they seem to be reconcilable when proper allowance is made for differences in local practice. In some cases statements are to be found to the effect that the question of probable cause, is for the court when the facts are undisputed, and for the jury when they are in dispute. That form of statement is obviously incorrect, or at least misleading. Assuming in accordance with the general rule that the question of probable cause, i. e., the inference as to whether the defendant acted as a reasonably prudent man, in view of the facts and circumstances of the case, is for the court, it is equally so whether the facts and circumstances are established by undisputed or by disputed evidence. The difference, theoretically, at least, is only one of practice. If the facts and circumstances are admitted or established by undisputed evidence, the court, according to the local practice and the state of the case, either enters a nonsuit, or directs a verdict, or submits the case on other issues.

Upon the other hand, if there is a dispute in the evidence, the case must be submitted to the jury for the determination of the facts and circumstances, and the inferences of fact, with binding hypothetical instructions by the court as to the conclusion in respect of probable cause, covering all possible combinations of facts and inferences which the jury would be justified in finding from the evidence. Theoretically, at least, the jury in the latter event no more than in the former exercise an independent judgment as to whether the defendant's belief and conduct were those of an ordinarily prudent man; that is, whether the facts and circumstances as found by them constitute reasonable cause; but, after determining the facts and circumstances and finding warrantable inferences, merely register mechanically the results of the binding instructions given by the court. The practical aspect corresponds with the theoretical when the jury are required to return a special verdict registering their findings as to the facts and circumstances and the inferences within their province. In the absence of a special verdict, however, it may be questioned whether the practical results always correspond with the theory, since in such case there is no means of determining upon what findings of fact the

general verdict was based. There is, of course, a presumption in aid of the general verdict that the jury followed the instructions of the court, but it is quite possible, contrary to the presumption, that a jury, either because of a misunderstanding of the instructions, or failure to recall the particular instructions pertinent to the facts actually found by them, or because of a natural reluctance to surrender their own judgment as to the conduct of a reasonably prudent man in the circumstances, may render a verdict for the plaintiff notwithstanding that they were convinced of facts bearing on the question of probable cause which, under the hypothetical instructions of the court, required a verdict for defendant at their hands.

The courts in some instances may not have been unwilling to mitigate the rigor of a questionable, or at least an anomalous, rule by overlooking the possibility contrary to the presumption, that the jury's findings as to the facts bearing on the question of probable cause may not have been consistent with their general verdict. The suggestion occurs that the failure to require a special verdict in such a case tends to put a premium upon the introduction of sufficient evidence to raise a dispute, even though not sufficient to seriously affect the finding of the jury, as to the facts bearing on the question of probable cause, since it may practically, though of course not theoretically, enable the party introducing it to have the judgment of the jury, rather than that of the court, on the ultimate question of probable cause. The comparative infrequency of special verdicts in such cases is doubtless in a measure accounted for by the difficulty apprehended in framing special questions covering every possible phase of the evidence bearing on the subject of reasonable cause. This, however, is no more difficult than the task of framing hypothetical instruction covering every such phase of the evidence, which is imposed upon the court by the general rule that the question of probable cause is for the court. If the framing of such questions or instructions is indeed impracticable, that would not seem to furnish an argument against the rule itself. Certainly the rule does not work equal justice to all suitors if in practical effect it refers the question of probable cause to the court upon a given state of facts when there happens to be no dispute in the evidence as to such facts, and refers the question to the jury on precisely the same state of facts as found by the jury, if there happens to be a suflicient dispute in the evidence to require the submission of facts to the jury. Yet, the possibility of such an anomalous result cannot be avoided consistently with adherence to the general rule which makes the question of probable cause one for the court, unless it is possible and practicable to frame special questions or hypothetical instructions which will cover every possible combination of facts and circumstances which the jury may find bearing on the question of probable cause. W. W. A.