showing the agreement as to their several rights to the grain in controversy, and therefore affecting the question whether defendant's prosecution was malicious, or merely in vindication of his rights.

MALICIOUS PROSECUTION - EVIDENCE OF MALICE.

5. Plaintiff in an action for malicious prosecution had purchased premises from defendant, agreeing to pay therefor by delivering to defendant all the wheat raised thereon yearly, less the amount necessary to plaintiff for seeding, food for stock, and family expenses; defendant to have the right to take such wheat if plaintiff failed to deliver. Defendant, claiming the right so to do, attempted to remove plaintiff's grain, but was prevented by plaintiff. Next day defendant had plaintiff arrested for assault, and, while he was in custody, removed the grain. Held, that it was proper to ask plaintiff if any grain was left for his own use, as tending to show whether the purpose of defendant in removing the wheat was only to take his own share, or to oppress plaintiff by taking more, thus indicating malice.

REMOTE EVIDENCE OF MALICE.

6. In an action for malicious prosecution for assault, where the alleged assault was committed by plaintiff in resisting defendant's attempt to remove grain from plaintiff's possession, evidence that the parties had had difficulty over the crop of the previous year, such difficulty having been all settled shortly after it arose, is not proper, the transaction being too remote.

WITNESSES KNOWLEDGE OF SUBJECT.

7.

Where a witness shows himself unacquainted with plaintiff's standing before and after the acts complained of, he is not competent to testify as to the damage to plaintiff's reputation and credit by defendant's acts. MALICIOUS PROSECUTION - EVIDENCE OF WANT OF PROBABLE CAUSE.

8. The discharge of an accused person on his preliminary examination by a committing magistrate is prima facie evidence of want of probable cause for causing the arrest.

From Umatilla: STEPHEN A. LOWELL, Judge.

This is an action by Jesse L. Stamper against W. W. Raymond and J. B. Huntington for malicious prosecution. Essentially, it is alleged by the complaint that on August 22, 1899, the defendants maliciously conspired together to cause the arrest and imprisonment of the plaintiff, with the intent to injure him, and in pursuance thereof falsely, maliciously,

38 OR.-2.

and without probable cause, instituted criminal proceedings against him before M. A. Ferguson, a justice of the peace for Adams District, in the County of Umatilla, Oregon, whereby they charged him with having on August 21, 1899, committed the crime of assault with a dangerous weapon, to wit, a shotgun, upon the defendant Warren W. Raymond, and thereupon caused a warrant to be issued, and the plaintiff to be placed under arrest and imprisoned for the space of ten hours; that thereafter, on August 28, and after a hearing and trial, plaintiff was acquitted of said charge and discharged from custody; that the costs of the proceedings were taxed to Raymond, and the prosecution thereby determined. The allegations of conspiracy, malice, and want of probable cause are denied by the answer; and for a further defense it is alleged that plaintiff did on the said twenty-first day of August, 1899, assault the defendant Raymond with a dangerous weapon, namely, a double-barreled shotgun, loaded with powder and shot, and should be arrested, tried, convicted, and sentenced therefor. The reply takes issue upon the allegations of assault, and, for a defense to the new matter, alleges that at the time designated the plaintiff was the owner and in possession of 1,344 sacks of wheat and 269 sacks of barley, then on his premises, and that the defendants wrongfully and unlawfully attempted in the night-time to remove said grain against his consent; that, for the purpose of preventing such removal and protecting his property, he took and had in his possession a shotgun, which he held on his left arm, with the muzzle pointed away from the defendants, and, without attempting to use it, he directed them to desist from further interference therewith; and that these are the same acts alluded to in the defendants' answer. A trial was had before a jury under the issue thus tendered, and, the judgment being favorable to the plaintiff, the defendants appeal. REVERSED.

For appellants there was an oral argument by Mr. John J. Balleray, with a brief over the names of J. J. Balleray and T. G. Hailey to this effect:

In an action of malicious prosecution for having charged plaintiff with an assault with a dangerous weapon on defendant, a written contract between plaintiff and defendant for the purchase and sale of a ranch, to be paid in wheat, and specifying the amounts of wheat raised on the ranch each year, the amounts turned over by plaintiff to defendant each year, what is necessary for horse feed, seeding, and expenses of the family in running such ranch, are collateral matters and not admissible in evidence, and are irrelevant and incompetent: Grout v. Cottrell, 143 N. Y. 677 (38 N. E. 717); Lunsford v. Deitrich, 93 Ala. 565 (30 Am. St. Rep. 79, 9 South. 308); Thompson v. Beacon Val Rubber Co. 56 Conn. 493 (16 Atl. 554); Thurston v. Right, 77 Mich. 96 (43 N. W. 860); Wright v. Church, 110 N. Y. 463 (18 N. E. 258); Tillotson v. Warner, 3 Gray, 574.

It is always error to give instructions which must mislead and confuse the jury. No authorities are needed on that proposition. One side of the case the court gave the instructions asked by the defendants. Then he went to work and gave instructions diametrically opposite to those given at the instance of the defendants, and in effect told the jury that all that he had already said was wrong and that the law was just the other way. Of course, those instructions were excepted to. The instructions remind us forcibly of some lines in Hudibras:

"What makes all doctrines plain and clear?
About two hundred pounds a year.
What makes that which was true before
All false again? Two hundred more."

For respondent there was an oral argument by Mr. Chas. H. Carter, with a brief over the names of Jas. A. Fee and Carter & Raley to this effect:

When a magistrate has authority to bind over or discharge and he discharges, the discharge is equivalent to acquittal and will avail the accused as evidence to support the allegation of acquittal; it is not necessary that such termination should be such as would bar any other prosecution for the same offense: 14 Am. & Eng. Enc. Law (1 ed.), pp. 28-31; Sayles v. Briggs, 4 Met. 421; Cardival v. Smith, 109 Mass. 158 (12 Am. Rep. 682); Moyle v. Drake, 141 Mass. 238; Driggs v. Barton, 44 Vt. 124; Casabeer v. Rice, 13 Neb. 465.

The discharge of defendant by the examining magistrate is evidence of want of probable cause: Hidy v. Murray, 101 Iowa, 65 (69 N. W. 1138); 14 Am. & Eng. Enc. Law (1 ed.), pp. 19-20; Rider v. Kite, 61 N. J. Law, 8 (38 Atl. 754); Brown v. Vittur, 47 La. Ann. 607 (17 South. 193).

Malice can be inferred when the object of the prosecution is simply to get property or to collect a debt: Morgan v. Duffy, 94 Tenn. 686 (30 S. W. 735); Ross v. Langworthy, 13 Neb. 492 (14 N. W. 515); Sebastian v. Cheney (Tex. Civ. App.), 24 S. W. 970, 25 S. W. 691.

The criminal law was not designed to collect debts, and the instituting of a criminal prosecution against a debtor to recover property is, in a legal sense, malicious: Kelly v. Sage, 12 Kan. 109; Gabel v. Weisensee, 49 Tex. 131; Gee v. Culver, 13 Or. 598; 14 Am. & Eng. Enc. Law (1 ed.), p. 20.

The appellants are most unjust to the trial judge in their insinuations against him; the suggestions and innuendos in their brief are not supported by a single circumstance that occurred during the trial. Counsel is given to the vigorous, rough-and-tumble, vituperative style of trying causes before

a jury (and he tries them remarkably well, too), and he cannot lay aside his habits in this regard, even when he comes into this court. To quote his favorite author, he is one of those men mentioned by Hudibras' lines

"Such as do fix their faith upon
The holy text of pike and gun;
And prove their doctrine orthodox
By apostolic blows and knocks."

Upon the whole case we contend that there was no error committed by the circuit court which either appellant can complain of. If any error at all was committed, it was such as benefited them and injured us.

MR. JUSTICE WOLVERTON, after stating the facts, delivered the opinion of the court.

I. To support the action it is necessary to show that the prosecution complained of was instituted with malice and without probable cause. These are two essential and distinct ingredients, without the concurrence of which it cannot be maintained. The prosecution may have been without probable cause, but, if set in operation without malice, there can be no recovery in this action. So it is that, with whatsoever malice the prosecution may have been conceived, if the prosecutor had probable cause for proceeding with it he does not thereby lay himself liable to damages. To these ingredients may be added a third, namely, that the prosecution shall have terminated. The burden of proof is with the plaintiff to establish all these essential elements if he would succeed.

2. Malice is ordinarily, perhaps exclusively, a question. of fact for the jury, to be ascertained from the attendant facts and circumstances of the case, and, while it may be inferred from the facts which go to establish the want of probable cause, it does not follow as a necessary sequence. Hence it is not a conclusion that the court will declare, and the