affirm the exsitence of facts sustaining and warranting the arrest, it cannot estop the defendant from showing that his arrest and detention were malicious and without probable cause, nor from recovering damages therefor: Fortman v. Rottier, 8 Ohio St. 548; 72 Am. Dec. 606; Bump v.

Wend. 421.

Betts, 19

Guilty Person cannot Recover. No judgment in favor of the plaintiff is sustainable if it appears that there was probable cause for his prosecution. Before proceeding to consider what may be regarded as probable cause on the part of a prosecutor, we wish to remark that the plaintiff, notwithstanding his acquittal, must always be regarded as tendering the issue of his innocence, and must fail in his action if that innocence can be disproved, whether the prosecutor acted from malicious motives or not, and whether or not he knew of the facts establishing plaintiff's guilt. An action for malicious prosecution will never lie in favor of a guilty man: Newton v. Weaver, 13 R. I. 616; Parkhurst v. Masteller, 57 Iowa, 474; Whitehurst v. Ward, 12 Ala. 264; Threefoot v. Nuckols, 68 Miss. 117; Johnson v. Chambers, 10 Ired. 287; Barber v. Gould, 20 Hun, 446; Plummer v. Gheen, 3 Hawks, 66; 14 Am. Dec. 572; Adams v. Lisher, 3 Blackf. 241; 25 Am. Dec. 102; except that one prosecuted on two or more charges, of one of which he was convicted, may recover for his prosecution on the other charge, by proving that, as to it, his prosecution was without probable cause and malicious: Reed v. Taylor, 4 Taunt. 616; Ellis v. Abrahams, 8 Q. B. 709; 10 Jur. 593; 15 L. J. Q. B. 221. Sometimes the courts have incautiously said that probable cause did not depend on the guilt or innocence of the accused: Lytton v. Baird, 95 Ind. 349; King v. Calvin, 11 R. I. 582; Hazzard v. Flury, 120 N. Y. 223; Curl v. Ayers, 53 N. Y. 14; but when they have so said, they have been referring to the fact that the plaintiff had urged his innocence as conclusive in favor of his right to recover, and have merely intended to affirm that, notwithstanding such innocence, the action of the prosecutor may have been justified because of incriminatory circumstances known to him, and not that the guilt of the accused could co-exist with a right on his part to recover for being prosecuted for a criminal act of which he was guilty.

PROBABLE CAUSE, WHAT IS. — Numerous definitions of probable cause have been given, some of which will be here quoted: "A definition of probable cause sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish. The complete legal idea expressed by that term is not to be gathered from a mere definition. But, perhaps, with reference to many practical cases, it may be nearly accurate to say that probable cause consists of a belief in the charge or facts alleged, based on suffi. cient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation": Boeger v. Langenberg, 97 Mo. 390; 10 Am. St. Rep. 322. Probable cause is "the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offense for which he was prosecuted": Dempsey v. State, 27 Tex. App. 269; 11 Am. St. Rep. 193; Ramsey v. Arrott, 64 Tex. 320; Glasgow v. Owen, 69 Tex. 167; Wheeler v. Nesbitt, 24 How. 544; Scott v. Shelor, 28 Gratt. 906; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493. "A reasonable ground of sugpicion supported by circumstances sufficiently strong in themselves to warrant cautious man in believing that the person charged is guilty of the offense charged ": Ames v. Snider, 69 Ill. 376; Davie v. Wisher, 72 Ill. 262. "Prob. able cause may be defined to be that apparent state of facts found to exist apon reasonable inquiry, — that is, such inquiry as the given case rendered

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convenient and proper, — which would induce a reasonably intelligent and prudent man to believe the accused person had committed, in a criminal case, the crime charged, and in a civil case, that a cause of action existed": Lacy v. Mitchell, 23 Ind. 67. "Where the facts known to the prosecutor, or the information received by him from sources entitled to credit, are such as to justify the belief, in the mind of a person of reasonable intelligence and cau. tion, that the accused is guilty of the crime charged, and the prosecution is induced thereby, such a state of facts constitutes probable cause, though it may subsequently appear that the accused is innocent": Hays v. Blizzard, 30 Ind. 457. "Probable cause is such a state of facts in the mind of the prose cutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty": Muns v. Dupont, 3 Wash. C. C. 31; Bacon v. Towne, 4 Cush. 238; Cole v. Curtis, 16 Minn. 195; Casey v. Sevatson, 30 Minn. 516. "If the apparent facts are such that a discreet and prudent person would be led to believe that a crime has been committed by the person charged, he will be justified, though it turns out that he was deceived, and that the party accused was innocent": Carl v. Ayers, 53 N. Y. 14; Hazzard v. Flury, 120 N. Y. 223. "What is probable cause? It is constituted by such facts and circumstances as, when communicated to the generality of men of ordinary and impartial minds, are sufficient to raise in then a belief or grave suspicion of the guilt of the person": Griffis v. Sellars, 2 Dev. & B. 492; 31 Am. Dec. 422. To constitute probable cause, "the facts must be such as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe, the plaintiff guilty. We cannot readily perceive how there can be a well-grounded or reasonable suspicion of the existence of a fact, without there is also a belief of it": Stone v. Stevens, 12 Conn. 219; 30 Am. Dec. 611. By the code of Georgia it is declared that want of probable cause "shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for his proceeding but his desire to injure the accused." The illustration thus given by the code has not been treated by the courts of the state as excluding other cases of want of probable cause, and a prosecutor is still liable in that state for acting without probable cause, if he did not act with ordinary care, nor as a man of ordinary prudence would under like circumstances: Coleman v. Allen, 79 Ga. 637; 11 Am. St. Rep. 449.

Prejudice or Partiality of the Accuser. — There are definitions of probable cause which seem to exact a high degree of impartiality and freedom from prejudice on the part of the prosecutor, but the circumstances under which a prosecution is instituted are often such as to require an injured person to act promptly, and while smarting from loss or personal injury, and therefore when it is too much to expect of him that he can free himself from all preju dice and partiality. Perhaps a definition or instruction exacting of him freedom from partiality and prejudice may be mitigated so as to do him no wrong, if the jury is properly reminded that he cannot be held answerable unless he acts with malice. The more prudent courts have, however, elim. inated from their definition "impartiality and freedom from prejudice," and have permitted juries, in determining the question of probable cause, to take into consideration the circumstances under which the defendant was called upon to act, and considering that these circumstances might be such as to anavoidably affect the judgment, have said that " some allowance may be made when the prosecutor is so injured by the offense that he could not likely draw his conclusions with the same impartiality and absence of prejudice that a person entirely disinterested would deliberately do. All that can be

required of him is, that he shall act as a reasonable and prudent man would be likely to do in like circumstances": Spear v. Hiles, 67 Wis. 350; Cole v. Curtis, 16 Minn. 182; Carter v. Sutherland, 52 Mich. 597; Casey v. Sevatson, 30 Minn. 516.

Belief of the Accuser. Some of the definitions seem to make the question of probable cause depend entirely upon the facts and information upon which the accuser acted, irrespective of the effect which they had upon his mind, and to give no weight to his belief, or want of belief, in the guilt of the person prosecuted. It is doubtless true that the mere belief on the part of the prose cutor in the truth of the charge made by him does not constitute probable cause, for it may be engendered by facts and circumstances which would not produce belief of guilt in the mind of a reasonable and prudent person, and which would, on the contrary, satisfy a reasonable person of the innocence of the accused: Mowry v. Whipple, 8 R. I. 360; Hall v. Hawkins, 5 Humph. 359; Barron v. Mason, 31 Vt. 189; Spear v. Hiles, 67 Wis. 361; Lawrence v. Lanning, 4 Ind. 194; Hays v. Blizzard, 30 Ind. 457; Graeter v. Williams, 55 Ind. 461; Turner v. Walker, 3 Gill & J. 377; 22 Am. Dec. 329; Spalding v. Lowe, 56 Mich. 366. "While it is not necessary to show that the crime has in fact been committed, it is necessary to show, not only that the defendant had reasonable ground to believe, but that he did in fact believe, that the crime had been committed, and that the plaintiff had committed the crime": Ball v. Rawles, 93 Cal. 222; 27 Am. St. Rep. "It is claimed by appellant's counsel that the defendant is not liable to this action if the jury found that he honestly believed the plaintiff guilty of the offense when he commenced the prosecution against him. This cannot be the law. No man's liberties or rights can thus be measured by even the honest belief of another. The honest belief of a person commencing a criminal prosecution against another in the guilt of the accused is an essential element or fact for him in showing probable cause, or in disproving the want of it; but he must also show such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in that belief, before his belief can become his vindication or shield. If he should show such ground and circumstances, and yet it was apparent that he did not himself believe in the guilt of the accused, they would not protect him. Nor, on the other hand, would he be liable, if, unknown to him, and beyond the range of inquiry by such cautious man, there were facts which would negative or destroy that belief. The belief, therefore, of the defendant, is a proper matter for inquiry in making out his defense, but does not of itself constitute a defense": Shaul v. Brown, 28 Iowa, 37; 4 Am. Rep. 151. His belief is also admissible to rebut the idea that he was actuated by malice: Lunsford v. Deitrich, 86 Ala. 250; 11 Am. St. Rep. 37. That the prosecutor did not believe the accused was guilty, or did not believe there was probable cause for his prosecution, is certainly a very material circumstance, whether it necessarily negatives the defense of probable cause or not. Whether circumstances sufficient to create a belief in the mind of a reasonable man that the accused was guilty of the crime charged, and which, if believed by the prosecutor, would sustain the defense of probable cause, lose their power to shield him upon proof being made that they did not generate that belief in his mind, is not clearly settled, some of the cases indicating that his want of belief is admissible merely to disprove the existence of probable cause, and others that such want of belief is conclusive against this defense: Bell v. Pearcy, 5 Ired. 83; Broad v. Ham, 5 Bing. 722; 8 Scott, 40; James v. Phelps, 11 Ad. & E. 483; 3 Perry & D. 231; Haddrick v. Heslop, 12 Q. B. 267; 12 Jur. 600; 17 L. J. Q. B. 313; Shaul

▼. Brown, 28 Iowa, 37; 4 Am. Rep. 151; Stone v. Stevens, 12 Conn. 219; 30 Am. Dec. 611; Ball v. Rawles, 93 Cal. 222; 27 Am. St. Rep. Probable Cause, to What Extent a Question for the Jury. Undoubtedly, when the evidence bearing upon the question of probable cause is conflicting, it is the province of the jury to determine which of the witnesses speak the truth. In actions for malicious prosecution, as in other civil cases, the jury must decide all questions of fact and the court all questions of law, but the mode of submitting the question of fact to the jury may be somewhat different from that employed in other causes. The authorities agree that if there is no dispute concerning the facts, the court must determine the law, and therefore decide whether such undisputed facts do or do not constitute probable cause, and that, on the other hand, to the extent that there is any dispute upon the facts arising from the evidence, such dispute must be submitted to the jury: Walbridge v. Pruden, 102 Pa. St. 1; Stewart v. Sonneborn, 98 U. S. 187; Stone v. Crocker, 24 Pick. 81; Speck v. Judson, 63 Me. 207; Center v. Spring, 2 Iowa, 393; Kidder ▼. Parkhurst, 3 Allen, 393; Thaule ▼. Krekeler, 81 N. Y. 428; Burton v. St. Paul etc. R'y Co., 33 Minn. 189; Donnelly v. Daggett, 145 Mass. 314; Gulf etc. R'y Co. v. James, 73 Tex. 12; 15 Am. St. Rep. 743; Johnson v. Miller, 69 Iowa, 562; 58 Am. Rep. 231; McNulty v. Walker, 64 Miss. 198; Medcalfe v. Brooklyn etc. Ins. Co., 45 Md. 198; Johnstone v. Sutton, 1 Term Rep. 545; 1 Brown Parl. C. 76; James v. Phelps, 11 Ad. & E. 483; Panton v. Williams, 1 Gale & D. 504; 2 Q. B. 169; Turner v. Ambler, 10 Q. B. 252; 6 Jur. 346; 11 L. J. Q. B. 158; Caldwell v. Bennett, 22 S. C. 1; French v. Smith, 4 Vt. 363; 24 Am. Dec. 616; Ulmer v. Leland, 1 Greenl. 135; 10 Am. Dec. 48; Nash v. Orr, 3 Brev. 94; 5 Am. Dec. 547; Plummer v. Gheen, 3 Hawks, 66; 14 Am. Dec. 572; Cockfield v. Bravehoy, 2 McMull. 70; 39 Am. Dec. 123; Coleman v. Heurich, 2 Mackey, 189; Heldt v. Webster, 60 Tex. 207. In some of the states, the practice sanctioned by the decisions of their highest courts is, when the evidence is conflicting, to instruct the jurors as to what constitutes probable cause, and to leave them to decide, in the light of such instruction, whether probable cause for the prosecution existed or not: Landa v. Obert, 45 Tex. 539; Gulf etc. R'y Co. v. James, 73 Tex. 12; 15 Am. St. Rep. 743; Ash v. Marlow, 20 Ohio, 119; Cole v. Curtis, 16 Minn. 182. In other states, the judgment of the jurors is sought in a different mode, with a view to obtaining, if possible, their conclusions on the facts, disconnected from their conclusions of law. They are there required to make special findings of fact, or the cause is submitted to them upon hypothetical instructions in which the evidence is stated, and they are told that if they believe certain evidence, then that probable causes existed or not, as the case may be, or instructed "that if they find the facts in a designated way, then that such facts, when so found, do or do not constitute probable cause": Eastin v. Stockton Bank, 66 Cal. 123; 56 Am. Rep. 77; Fulton v. Onesti, b66 Cal. 575; Greenwade v. Mills, 31 Miss. 468; Leggett v. Blount, N. C. Term Rep. 123; 7 Am. Dec. 702; Panton v. Williams, 1 Gale & D. 504; 2 Q. B. 169; Bulkeley v. Keteltas, 6 N. Y. 387; Bulkeley v. Smith, 2 Duer, 261; Grant v. Moore, 29 Cal. 644; Chapman v. Heslop, 2 Com. L. Rep. 139; 18 Jur. 348; 23 L. J. Q. B. 49; Lister v. Perryman, 39 L. J. Ex. 177; L. R. 4 H. L. 521; 19 Week. Rep. 9; 23 L. T., N. S., 269. And in some of the states, the giving to the jury of any definitions or instructions upon abstract propositions relating to probable cause is discouraged, on the ground that they "are apt to lead the jury away from their function of passing upon the effect of the evidence in support of the probative facts which the court may direct them to find in order to determine in which way their general verdict

shall be rendered": Ball v. Rawles, 93 Cal. 222; 27 Am. St. Rep. It in well known that there are many instances in which, though evidence is accepted, or conceded to be true, different persons may honestly draw diverse conclusions from it. The definitions of probable cause are such as to require the prosecutor to act as a reasonable and prudent man would under like circumstances. They do not impose liability upon him for mistaken conclusions drawn by him, if they were such as a reasonable and prudent man would draw if placed in the same situation as the prosecutor. The evidence may be without substantial conflict, and the witnesses by whom it was given not only entitled to credit, but in fact implicitly believed, and yet one jury or court might reach the conclusion that the prosecutor acted as a reasonable and prudent man, and another that he did not so act. In such a contingency, is the jury or the court to draw the inference from this undisputed evidence! We have seen but little discussion of this question, but the authorities which unqualifiedly assert that when the evidence is not conflicting the court must decide whether probable cause existed imply that the inference to which we have referred must be drawn by the court. Nevertheless, we think it should be submitted to the jury: Heyne v. Blair, 62 N. Y. 19; by some mode which will "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. 192; Ball v. Rowles, 93 Cal. 222; 27 Am. St. Rep. If there is any substantial difference between the two modes of subinitting the question of probable cause to the jury, the one which exacts special findings of fact or requires the case to be submitted to the jury hypothetically seems best adapted to enable the court to draw all inferences which are necessary to determine from the established facts whether the action of the prosecutor was that of a reasonable and prudent man or not. The prosecutor's belief or want of belief in the guilt of the accused, or in the information upon which his action was based, is often an issue in the case upon which the mainte. nance of his defense of probable cause must rest. It is clear that this issue must be submitted to the jury: Stewart v. Sonneborn, 98 U. S. 187.

If it be true that the question, What is probable cause? is always one of law for the court, then in every case in which the evidence is not conflicting it ought to be possible to state whether or not it establishes probable cause or the absence of it. We doubt the truth of the assertion that probable cause is always a question of law, even when there is no conflict in the evidence: Cochran v. Toher, 14 Minn. 385; Anderson v. Keller, 67 Ga. 58; Stewart v. Sonneborn, 98 U. S. 187; though there have been and must again be many cases in which it is perfectly clear that undisputed evidence does or does not establish probable cause. We shall now refer to cases of this class, showing many instances in which it has been possible for the court, from the evidence before it, and without the aid of the jury, to determine that the defense of probable cause had or had not been proved.

The Conviction of the Person Prosecuted, while it remains in force, is conclusive evidence of probable cause on the part of the person prosecuting him: Freeman on Judgments, secs. 319, 417; Griffis v. Sellars, 3 Dev. & B. 492; 31 Am. Dec. 422; Herman v. Brookerhoff, 8 Watts, 240; though no remedy by appeal or otherwise could have been resorted to by the accused for the purpose of reviewing or setting aside the judgment against him as being contrary either to the law or to the evidence: Basébé v. Matthews, 36 L. J. M. C. 93: L. R. 2 Com. P. 6S4; 15 Week. Rep. 839; 16 L. T., N. S., 417. If a convic tion has been set aside upon appeal or by the granting of a new trial, either in the court in which the conviction was had or upon appeal to some higher