
    FURNESS vs. PORTER.
    In an action for amalieiousprosecution, where the facts have not been found by thejury, it is error* toinstruotthe jury “that, admitting all the testimony in favor of the plaintiff to be true, yet that he had not shewn a want of probable cause.”
    BRIEF OF WEBBER AND MARSH, ESQRS.
    The plaintiff contends that a want of prohable cause for the prosecution and malice is shewn in this case:
    First, That malice will be inferred from a want of probable cause, and
    Second, Malice is, in this case, expressly proved. (See evidence.)
    
      1. That it was the province ofthe jury to weigh'the testimony and the credibility of the witnesses, and the court could not instruct the jury that probable cause was shown. See Crabtree vs. Horton, 4 Mumford, page 59; Maddox vs. Jackson, 4 do, 462; Revised Code, page 137, sec tion 144.
    That the question of probable cause, or want of probable cause is a mixed question of fact and law, and that mixed questions must be submitted to the jury; 1 Duuford and East, page 545; 14 Johnson’s Reports, page 304 to 7.
    That the instruction of the court that the plaintiff had failed to prove a want of probable cause, is in the nature of a decision upon a demurrer to evidence, or a motion to instruct the jury, as incase of a non-suit; (a practice which prevails in some states,) in both of which cases, the demurrer is filed, or motion made, (as the case may be,) after the plaintiff has gone through his testimony, and before the defendant has offered any evidence, and in both cases, all the facts which may be reasonably inferred from the testimony on the part of the plaintiff, — is admitted to be true: But a demurrer, or motion, as aforesaid, is not allowed after the defendant has introduced any testimony. In this case, the motion was made and sustained, after the testimony of the plaintiff and defendant, (being contradictory,) was through.
    The question of probable cause is one of law; but the facts which go to show it, must be ascertained by the jury; 2 Taylor’s Reports, 123; 3 Am. Digest, 13.
    Lastly, if it was competent for the court to decide the question upon the evidence, the demurrer on the facts was erroneous. See evidence in the bill of exceptions; see revised code,-page 302, section 34.
    biuef oí? G. W. Smyth, esq.
    Three errors are assigned; but on inspection it will be found that the statements in the second and third are not sustained by the record. The only one to which I shall direct the attention of the court is the first error, in instructing the jury that the plaintiff had not shown a want of probable cause for instituting the prosecution in the declaration set out:
    This will be considered error, if it be not the province of the court to -say whether facts admitted, or shewn on the record, do, or do not, amount to probable cause; that if the jury, in actions for malicious prosecutions,, are to determine, in all cases, what is probable cause.
    .Reason and the authorities show that what is ‘probable cause is a question for the court, and not for the jury. Reason would say that experts in any art and science should interpret the technical phrases of such art or science. Now the law says that if any bring an action, or cause to be instituted, a prosecution against another, without probable cause, and maliciously, and to his damage, he shall have his action on the case. Whether this law be a statute, or the result of judicial decisions growing out of the statute giving actions on the case, every word in it, whether technical or ordinary in its acceptation, must be interpreted by the courts, and not by the jury. If left to a jury, each word might have as many different meanings as ihere could be jurors to decide. It would be leaving to twelve to undo the work of the whole community. Authorities from the earliest •times confirm this opinion.
    At first, no action could be brought, until the accused, by motion in open court, obtained a copy of the indictment, and this was always refused where there was probable cause for instituting the prosecution.
    Then it was confined to felonies, and in indictments for felonies, the rule yet applies. Copies are necessary and they are withheld, when there is the slightest probable cause, in the opinion of the court.
    The old authorities all tend to shew that the courts decide when there is probable cause. Martin vs. Lincoln, 27 Charles 2nd referred to in B. N. page 13. North, chief justice says, referring to Hobart, that it is.the discretion of the judge, to say if there was no cause.
    And formerly the courts said, there was distinction between acqittal on .the merits or by a faulty indictment.
    Golden vs. Crowle, 25 George 2nd referred to also, in B. N. P. that jf ' 'the defendant shew that he had probable cause, he shall have a verdict ’jugb, malice be proven, and the court shall judge if the cause was prol ^Ne.
    In¡. wmeof the old cases it is said that if the bill be found by a grand jury, thK'í is probable cause, or shifts the burthen from defendant to plaintiff who must then shew want of probable cause — B. N. P. refers to a case, Cob;b vs. Carr. M. 1746.
    
      Several of the earlier cases are commented upon in the cases of •Johnston’s Sutton, 1 Term Rep. 518, 519; particularly Saville and Roberts, before Lord Holt, and the case of Jones vs. Gwinn, in Gibbert, before Chief Justice Parker, and as this case was one of great importance and carried into the house of lords, and there confirmed, I adopt its reasoning and conclusion, that it is for the court to say, when there is probable cause, if the facts are agreed to, or admitted."
    Farmer and Darling, 4 Bur. 1971 lays down the true foundation of the action malice and want of probable cause* 7 Mad. Rep. 73.
    The same principle might be traced through every later case, with the exception of two nisi prius decisions before Lord Ellenboroug in 2 Star-Jiie case.
    7 Cowen 715 McCormick vs. Sission, the court submitted to the jury, to say, whether there was probable cause, and on motion for new trial Woodworth held that the court erred.
    Pangburn vs. Bird, 1 Wend. 345.
    Burlingame vs. Burlingame, 8 Cow. 142.
    Murray vs. Long, 1 Wend. 140, 345.
    Masten vs. Deay, 2 Wend. 424.
    Analogy. — What are necessaries decided by court? Croke,. E. 583. What reasonable time in protests? What reasonable time in removing from leased premises. Croke. 204.
    If then it be a question for the court to say when facts are admitted, whether they amount to probable cause, did the court rightly say, in this matter, from the testimony now before the court? This will depend on the examination of the evidence.
    In criminal prosecution the motion is immaterial.
   OPINION OF THE COURT — by

chief justice TURNER

This is an appeal from the circuit court of Franklin county.

The appellant brought his action for- a malicious prosecution against the defendant; and on the trial befere the jury, evidence was given as well for the defendant as the plaintiff, and the defendant then moved the court to instruct the jury, that admitting all the testimony in favor of the plaintiff to be true, yet that the plaintiff had not shewn a want of probable cause in the prosecution which was the foundation of the present action, which instruction as asked for by the counsel for the defendant, was opposed by the plaintiff’s counsel, but was given by the court, to which opinion the counsel for the plaintiff excepted.

The appellant assigns for error the charge of the court to the jury.

It is said in some of the elementary books that what shall be deemed probable cause, is a matter upon which the court shall decide, and not the jury — seeEsp. N.’P. 529 ; 2 Starkie’s Ev. 912. But in one T. R. 520, Buffer Justice said, that the question of probable cause isa mixed question of law and fact; whether the circumstances alledged to shew it probable or not existed, is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law.

In this case, there being evidence on both sides, and the evidence being contradictory, it was, surely, the province of the jury exclusively, to find the facts.' to determiné which was to be believed, the witnesses of the plaintiff or of the defendant, so that according to the English authorities, we think the charge of the court was incorreet. If, after the plaintiff had closed his case, and before the defendant had offered any evidence, the plaintiff had called on the court to say whether the plaintiff had shewn a want of probable cause, I think it, at least doubtful, whether the court should have so charged. I think the proper course for the court, would have been, in that case, to charge the jury, that if they should find such and such facts, then there was or was not probable cause, according to his opinion.

But our courts do not go as far as the courts in England, having less control over the facts in trials at law — sec. 4, Mun. 59; 2 Starkie, 912.

In the case referred to in Munford’s reports, it was held that the court ought not to instruct the jury that probable cause is proved, but should leave the weight of the testimony to the jury, unless the facts are argued by the pleadings, or submitted to the court by the parties — 4 Mun. 462.

In this case the facts are not found by the pleadings; and when the charge of the court was asked for by the defendant’s counsel it was objected to by the plaintiff.

From this view of the subject, we are of opinion that the judgment of the court below be reversed; that the verdict and judgment below be set aside, and a venire facias deyiovo be awardedand judgment against the appellee for the costs of this suit be to taxed.  