commission of a crime ought to be encouraged to reveal to the prosecuting attorney fully, freely, and unreservedly the source and extent of their information. The possibility that what they say, under such circumstances, will be used against them, tends to impose a natural restraint upon their conduct and to deprive the officer of the benefit of their services. It is said that the privilege based upon this principle applies only to the identity of the informant (4 Wigmore, Ev. § 2374, p. 3333), and such appears to be the English rule; but in this country it has been treated as covering the communication itself. thority to institute a criminal prosecution, and the extent of that authority, are derived from the law, the law must judge of its exercise; it is therefore the duty of the court to determine whether the proof of certain facts constitutes probable cause, and it is error to submit that question to the jury." This case is quoted in Turner v. O'Brien, 5 Neb. 542, and see subsequent appeal, 11 Neb. 108, 7 N. W. 850. And Lord Colonsay in Lister v. Perryman, L. R. 4 H. L. 521, explaining the settled law in Engiand that want of probable cause is matter for the court, says: "Probably it became so from anxiety to protect parties from being oppressed or harassed in consequence of having caused arrests or prosecutions in the fair pursuit of their legitimate interests, or as a matter of duty, in a country where parties injured have not the aid of a public prosecutor to do these things for them." To the same effect, see: Burton v. St. Paul, M. & M. R. Co. 33 Minn. 189, 22 N. W. 300; Meyer v. Louisville, St. L. & T. R. Co. 98 Ky. 367, 33 S. W. 98; Sandoz v. Veazie, 106 La. 202, 30 So. 767. And see also, infra, III. b, 1, quotation from Coleman v. Heurich, 2 Mackey, 189. The full report of State v. Phelps, Kirby, 282, decided in 1787, reads: "On a criminal prosecution it was moved that the state's attorney might testify what the prisoner had disclosed to him, upon an application to be admitted a witness for the state; which the court refused, and said:Disclosures, under such circumstances, to the attorney, ought to be considered as confidential, and it would tend to defeat the benefits the public may derive from them, should they be made use of to the prejudice of those from whom they come." In Oliver v. Pate, 43 Ind. 132, it was held that the attorney and client rule applied, but for a 1 Ld. Raym. 374. However, this change in pleading by transferring to the declaration the averment of a want of probable cause, although it imposed upon the plaintiff the necessity of making proof of this negative averment as a part of his cause of action, did not change the issue from one of law to one of fact; for unless such want of probable cause was proved by him, it became the duty of the court to determine as a matter of law that he had no cause of action against the defendant; and since such probable cause is a legal conclusion to be drawn from the facts, and its absence is an essential element to the plaintiff's right of action, it is at all times to be determined by the court whether the facts proved constituted such probable cause, just as, under the original system, the court determined upon the demurrer to the facts set up in the defendant's plea whether there were sufficient grounds for his suspicion. Ball v. Rawles, supra. And in Panton v. Williams, 2 Q. B. 193, relied on in the Ball Case, supra, the court, speaking in the same connection and citing Pain v. Rochester, Cro. Eliz. pt. 2, p. 871, and other cases in which the facts alleged to constitute probable cause were set forth in the plea, the sufficiency of which was decided upon demurrer, said: "And although the practice which then obtained has been altered for a great length of time, by introducing into the declaration not only the statement that the charge was false and madelicious, but also that it was made without reasonable or probable cause, and thereby compelling the plaintiff to give some evidence thereof, and enabling the defendant to prove his case under the plea of not guilty, yet the rule of law that this question belongs to the judge only, and not to the jury, is not by such alteration in pleading in any way impaired.” 2. Effect of change in pleading. Originally an action for malicious prosecution was an action on the case in the nature of a writ of conspiracy, in which the plaintiff in the declaration charged the fendant with having falsely and maliciously caused his arrest. The defendant, in his pleas, set forth the grounds of his suspicion under which he caused the arrest, the sufficiency of which was determined by the court upon a demurrer to the plea. Ball v. Rawles, 93 Cal. 229, 27 Am. St. Rep. 174, 28 Pac. 937, citing, Chambers v. Taylor, Cro. Eliz. pt. 2, p. 900; Coxe v. Wirrall, Cro. Jac. 193; Weale v. Wells, 3 Bulst. 284; Comyns's Dig. title, Pleader, 2 k. In the process of time a change was effected in the manner of pleading the cause of action, by which the plaintiff anticipated this plea by averring in the declaration a want of probable cause, and the facts were present ed under the general issue. Ball v. Rawles, supra, citing Savil v. Roberts, 1 Salk. 13, b. When facts are disputed. 1. Generally. As already intimated, the condition of the evidence in the great majority of cases may require the assistance of the jury in determining the question of probable cause. In this connection the court in Young v. reason thus stated: "Public policy requires, which ordinarily apply in communications that a person in making communications to from client to counsel in matters of purely a prosecuting attorney, relative to crimi- private concern. . . But there is annals or persons suspected of being guilty other view of the subject. The matter conof crime, should be at liberty to make a full cerned the administration of penal justice, statement to him without fear of disclos- and the principle of public safety justifies ure." Page 141. The case of Vogel v. and demands the rule of exclusion." Page Gruaz, 110 U. S. 311, 28 L. ed. 158, 160, 4 316. In State v. Houseworth, 91 Iowa, Sup. Ct. Rep. 12, 14, is one of the same 740, 60 N. W. 221, it was decided that a character, citing the Indiana case with ap- statute forbidding the disclosure of any conproval, and adding: "The free and unem- fidential communication intrusted to an atbarrassed administration of justice in torney in his professional capacity protected respect to the criminal law, in which the pub-communications made to a prosecuting offilic is concerned, is involved in a case like cer by a complaining witness. In Gabriel v. the present, in addition to the considerations McMullin, 127 Iowa, 426, 430, 103 N. W. 355, Nichol, 9 Ont. Rep. 347, remarked: "Wheth- | Reynolds v. Kennedy, 1 Wils. 232; Watson er or not there is reasonable or probable cause is a question for the court. But each case must depend upon its own special circumstances as to what will or will not constitute reasonable and probable cause, and in nine cases out of ten, if not ninety-nine out of a hundred, the question of reasonable and probable cause depends so much upon facts in dispute that the court can only rarely decide without the aid of the jury.' So, in strict accord with the general rule previously stated, the law is well settled that when the question of probable cause depends upon substantially disputed facts, and upon inferences of fact to be drawn therefrom, it is for the jury to weigh the conflicting testimony, estimate the credi bility of the witnesses, find the inferences warranted by such facts, and determine what the truth is, and whether the facts and circumstances relied on to show the existence or absence of probable cause are sufficiently established, and for the court to decide whether or not they amount to probOr, as the rule is sometimes stated, the truth and existence of the facts and circumstances is a question of fact exclusively for the jury; but whether they amount to probable cause is a question of law exclusively for the court. able cause. Eng. Sutton v. Johnstone, 1 T. R. 493, 1 Bro. P. C. 76, 1 Revised Rep. 269, 1 Eng. Rul. Cas. 765, affirmed in 1 T. R. 784; Panton v. Williams, 2 Q. B. 169, 10 L. J. Exch. N. S. 545, 1 Gale & D. 504; Willans v. Taylor, 2 Barn. & Ad. 845, 1 L. J. K. B. N. S. 17, affirmed in 6 Bing. 182; Mitchell v. Jenkins, 5 Barn. & Ald. 588, 2 Nev. & M. 301, 3 L. J. K. B. N. S. 35; Cox v. English, S. & A. Bank [1905] A. C. 168, 74 L. J. P. C. N. S. 62, 92 L. T. N. S. 483; West v. Baxendale, 9 C. B. 141, 19 L. J. C. P. N. S. 149; Davis v. Hardy, 6 Barn. & C. 225, 9 Dowl. & R. 380, 5 L. J. K. B. 91, 30 Revised Rep. 306; Hilliar v. Dade, 14 Times L. R. 534; Watson v. Whitmore, 8 Jur. 964, 14 L. J. Exch. N. S. 41; Chapman v. Heslop, 18 Jur. 348, 2 C. L. R. 139, 23 L. J. Q. B. N. S. 49, 2 Week Rep. 74; Wainwright v. Villetard, 2 West. L. Rep. 242, 6 Terr. L. R. 189; Riddell v. Brown, 24 T. C. Q. B. 90; Donnelly v. Bawden, 40 U. C. Q. B. 611; Peck v. Peck, 35 N. B. 484; v. Smith, 15 Times L. R. 473; Kelly v. Midland G. W. R. Co. Ir. Rep. 7 C. L. 8; Hinton v. Heather, 14 Mees. & W. 131, 15 L. J. Exch. N. S. 39; Longdon v. Bilsky, 22 Ont. L. Rep. 4; Vincent v. West, 12 N. B. 290; Hughson v. Keith, 10 N. B. 559; Meaney v. Reid-Newfoundland Co. 39 N. S. 407; Seary v. Saxton, 28 N. S. 278; Erickson v. Brand, 14 Ont. App. Rep. 614; Peters v. Whyte, 1 Ont. Week Rep. 26; Willinsky v. Anderson, 19 Ont. L. Rep. 437; Still v. Hastings, 13 Ont. L. Rep. 322; Martin v. Hutchinson, 21 Ont. Rep. 388; and see Brooks v. Warwick, 2 Starkie, 389, 20 Revised Rep. 697, and cases cited, infra, this section. U. S.-Stewart v. Sonneborn, 98 U. S. 197, 25 L. ed. 120; Munns v. De Nemours, 3 Wash. C. C. 31, Fed. Cas. No. 9,926: Murray v. McLane, Brunner, Col. Cas. 405 Fed. Cas. No. 9,964; Castro v. De Uriarte, 16 Fed. 93; Miller v. Chicago, M. & St. P. R. Co. 41 Fed. 898; Sanders v. Palmer, 5 C. C. A. 77, 14 U. S. App. 297, 55 Fed. 217; Carroll v. Central R. Co. 134 Fed. 684; Blunk v. Atchison, T. & S. F. R. Co. 38 Fed. 311. Ariz.-McDonald v. Atlantic & P. R. Co. 3 Ariz. 96, 21 Pac. 338. Ark.-Chrisman v. Carney, 33 Ark. 316; Foster v. Pitts, 63 Ark. 387, 38 S. W. 1114. And see Lemay v. Williams, 32 Ark. 166: Lavender v. Hudgens, 32 Ark. 763; Whipple v. Gorsuch, 82 Ark. 252, 10 L.R.A. (N.S.) 1133, 101 S. W. 735, 12 Ann. Cas. 38; Hardin v. Hight, 106 Ark. 192, 44 L.R.A. (N.S.) 368, 153 S. W. 99. In the Lavender Case the court, sustaining an instruction that, "if the jury believe from the evidence that under all the facts and circumstances as proven by the evidence, the defendants had no reasonable or probable cause to believe that the plaintiff had committed a felony, and still they procured his arrest, they are guilty," said: "The question of probable cause is composed of law and fact, it being the province of the jury to determine whether the circumstances alleged are true or not, and of the court to determine whether they amount to probable cause. Regularly, the facts material to this question are first to be found by the jury, and 'the judge is then to decide, as a point of the administration of justice. A party hav- 356, that decision was approved; but the court added: "But, aside from the statute, we think the rule of exclusion should be applied to all matters concerning the administration of justice, on the ground of public policy. A county attorney is an officer whose duty it is to investigate crime and to prosecute therefor, not in the interest of the individual who may have suffered, but for the good of the state; and it is very clear to us that it is not only the privilege, but the duty, of every citizen who knows of facts tending to show the commission of a crime, to communicate such information The cases of Granger v. Warrington, 8 to the public officer whose duty it is to in- Ill. 299, and Cole v. Andrews, 74 Minn. 93, vestigate the matter and to commence a 76 N. W. 962, are directly to the contrary; criminal prosecution if a crime has been but in each case the question chiefly discommitted. Any other rule would hamper' cussed was whether the relation of attorney law, whether the facts, as found, establish probable cause or not. But if the matter of fact and matter of law, of which the probable cause consists, are intimately blended together, the judge will be warranted in leaving the question to the jury." Cal.-Potter v. Seale, 8 Cal. 218; Grant v. Moore, 29 Cal. 644; Harkrader v. Moore, 44 Cal. 144; Eastin v. Bank of Stockton, 66 Cal. 123, 56 Am. Rep. 77, 4 Pac. 1106; Fulton v. Onesti, 66 Cal. 575, 6 Pac. 491; Lacey v. Porter, 103 Cal. 597, 37 Pac. 635; People v. Kilvington, 104 Cal. 86, 43 Am. St. Rep. 73, 37 Pac. 799; Sandell v. Sherman, 107 Cal. 391, 40 Pac. 493; Smith v. Liverpool & L. & G. Ins. Co. 107 Cal. 432, 40 Pac. 540; Carpenter v. Ashley, 15 Cal. App. 461, 115 Pac. 268; Runo v. Williams, 162 Cal. 444, 122 Pac. 1082. Ill. See infra, this section. Ind. Brown v. Connelly, 5 Blackf. 390; Newell v. Downs, 8 Blackf. 525, note; Lacy v. Mitchell, 23 Ind. 67, and note; Schenck v. Butsch, 32 Ind. 338; Pennsylvania Co. v. Weddle, 100 Ind. 138; Paddock v. Watts, 116 Ind. 146, 9 Am. St. Rep. 832, 18 N. E. 518; Cottrell v. Cottrell, 126 Ind. 181, 25 N. E. 905; Terre Haute & I. R. Co. v. Mason, 148 Ind. 578, 46 N. E. 332; Helwig v. Beckner, 149 Ind. 131, 46 N. E. 644, 48 N. E. 788; Hutchinson v. Wenzel, 155 Ind. 49 56 N. E. 845; Indianapolis Traction & Terminal Co. v. Henby, 178 Ind. 239, 97 N. E. 313; Roberts v. Kendall, 12 Ind. App. 269, 38 N. E. 424; Louisville, N. A. & C. R. Co. v. Hendricks, 13 Ind. App. 10; Indiana Bicycle Co. v. Willis, 18 Ind. App. 525, 48 N. E. 646; Taylor v. Baltimore & O. S. W. R. Co. 18 Ind. App. 692, 48 N. E. 1044; Atkinson v. Van Cleave, 25 Ind. App. 508, 57 N. E. 731; Lawrence v. Leathers, Colo.-Gurley v. Tomkins, 17 Colo. 437, 30 Pac. 344; Wyatt v. Burdette, 43 Colo. 208, 95 Pac. 336; Grimes v. Greenblatt, 47 Colo. 495, 107 Pac. 1111, 19 Ann. Cas. 608;31 Ind. App. 414, 68 N. E. 179; Henderson v. Clement v. Major, 1 Colo. App. 297, 29 Pac. 19; Brooks v. Bradford, 4 Colo. App. 410, 36 Pac. 303; Williams v. Kyes, 9 Colo. App. 220, 47 Pac. 839. But see Florence Oil & Ref. Co. v. Huff, 14 Colo. App. 281, 59 Pac. 624, holding that where there is a conflict in the evidence bearing upon the question of probable cause, it is a question for the jury, and not the court, to determine. And see Murphy v. Hobbs, 7 Colo. 541, 49 Am. Rep. 366, 5 Pac. 119, and Whitehead v. Jessup, 2 Colo. App. 76, 29 Pac. 916. Del.-Wells v. Parsons, 3 Harr. (Del.) 505. D. C.-Coleman v. Heurich, 2 Mackey, 189; Tolman v. Phelps, 3 Mackey, 154; Spitzer v. Friedlander, 14 App. D. C. 556; Costello v. Knight, Mackey, 65; Porter v. White, 5 Mackey, 180; Staples v. Johnson, 25 App. D. C. 155; Slater v. Taylor, 31 App. D. C. 100, 18 L.R.A. (N.S.) 77; Brown v. Selfridge, 34 App. D. C. 242, affirmed in 224 U. S. 189, 58 L. ed. 727, 32 Sup. Ct. Rep. 444. Ga. Pomeroy v. Golly, Ga. Dec. pt. 1, p. 26. But see infra, IV., as to rule under statute. McGruder, 49 Ind. App. 682, 98 N. E. 137; and client existed, and in the latter it was held that, if the privilege could otherwise have been claimed, it had been lost by waiver. In People v. Davis, 52 Mich. 569, 18 N. W. 362, 363, it was held that on the trial of a criminal case it was proper to allow the defendant to show, for the purpose of impeachment, that the complaining witness had made statements to the prosecuting attorney inconsistent with his testimony. The reason given was that public policy required an acquittal unless the accused was in fact guilty. The court said: "We are not called upon in this case to consider whether there may not be cases in which the prosecuting attorney would be excused, in the interest of the state, from disclosing what had been told to him with a view to facts as true would constitute malice or want of probable cause. All of the issuable facts stated in the instruction were proper to be considered by the jury in determining whether or not such prosecution was malicious and without probable cause." Iowa.-Center v. Spring, 2 Iowa, 393; Shaul v. Brown, 28 Iowa, 37, 4 Am. Rep. 151; Johnson v. Miller, 82 Iowa, 693, 31 Am. St. Rep. 514, 47 N. W. 903, 48 N. W. 1081; Erb v. German American Ins. Co. 112 Iowa, 357, 83 N. W. 1053. See White v. International Textbook Co. 144 Iowa, 92, 121 N. W. 1104, and Connelly v. White, 122 Iowa, 391, 98 N. W. 144 (the latter case holding that if circumstances are proved showing reasonable ground of belief as to the existence of a cause of action, the question is for the jury, under instructions of the court as to what constitutes probable cause). And see also, infra, this section, Krehbiel v. Henkle, 142 Iowa, 677, 121 N. W. 378; Wilson v. Thurlow, 156 Iowa, 656, 137 N. W. 956. Kan.-Bell v. Matthews, 37 Kan. 686, 16 Pac. 97; Atchison, T. & S. F. R. Co. v. Watson, 37 Kan. 773, 15 Pac. 877; Sweeney v. Perney, 40 Kan. 102, 19 Pac. 328; Drumm v. Cessnum, 58 Kan. 331, 49 Pac. 78; Markley v. Kirby, 6 Kan. App. 494, 50 Pac. 953; Turney v. Taylor, 8 Kan. App. 593, 56 Pac. 137. Ky.-Meyer v. Louisville, St. L. & T. R. Co. 98 Ky. 367, 33 S. W. 98; Ahrens & O. Mfg. Co. v. Hocher, 106 Ky. 692, 51 S. W. 194; Lancaster v. McKay, 103 Ky. 616, 45 S. W. 887; Schott v. Indiana Nat. L. Ins. Co. 160 Ky. 533, 169 S. W. 1023; Keiner v. Collins, 161 Ky. 696, 171 S. W. 399; Davis v. Calvin, 143 Ky. 270, 136 S. W. 219; Lancaster v. Langston, 18 Ky. L. Rep. 299, 36 S. W. 521; Älexander v. Reid, 19 Ky. L. Rep. 1636, 44 S. W. 211; Moore v. Large, 20 Ky. L. Rep. 409, 46 S. W. 508; Davis v. Cassidy, 23 Ky. L. Rep. 955, 64 S. W. 633; Stephens v. Gravit, 136 Ky. 479, 124 S. W. 414. And see Provident Sav. Life Assur. Soc. v. Johnson, 115 Ky. 84, 72 S. W. 754, an action growing out of a prosecution for a criminal libel, and holding that "the rule is the commencement of criminal proceedings. There would be strong reasons in many cases why the counsel of the state should be inviolably kept; and nothing we shall say in this case will be intended to lay down a rule except for the very case at bar and others standing upon the same facts." Page 573. A similar rule was applied in Marks v. Beyfus, L. R. 25 Q. B. Div. 494, where it was said: "If upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail." that what facts constitute probable cause is a question of law for the court, and whether the facts exist or not is to be determined by the jury," but stating that "in defining 'probable cause' the court should, in an instruction, have set out the matter charged as libelous in the indictment; and should have told the jury that it was libelous if untrue, and that the defendant had probable cause for the prosecution, and they should find for it in this action, if its agent or agents who procured the indictment believed, and had such grounds as would induce a man of ordinary prudence to believe, that the matter so published, or any substantial part of it, was materially false." And language of the like effect is to be found in Metropolitan L. Ins. Co. v. Miller, 114 Ky. 754, 71 S. W. 921; Anderson v. Columbia Finance & Trust Co. 20 Ky. L. Rep. 1790, 50 S. W. 40; United Furniture Co. v. Wills, 158 Ky. 806, 166 S. W. 600. La.-Burkett v. Lanata, 15 La. Ann. 337; Sandoz v. Veazie, 106 La. 202, 30 So. 767. Me.-Ulmer v. Leland, 1 Me. 135, 10 Am. Dec. 48; Cooper v. Waldron, 50 Me. 80; Humphries v. Parker, 52 Me. 502; Speck v. Judson, 63 Me. 207. And see Pullen Glidden, 68 Me. 559. V. Md.-Boyd v. Cross, 35 Md. 194; Cooper V. Utterbach, 37 Md. 317; Medcalfe v. Brooklyn L. Ins. Co. 45 Md. 198; Johns v. Marsh, 52 Md. 323; Thelin v. Dorsey, 59 Md. 539; Campbell v. Baltimore & O. R. Co. 97 Md. 341, 55 Atl. 532; Smith V. Brown, 119 Md. 236, 86 Atl. 609; Chapman v. Nash, 121 Md. 608, 89 Atl. 117; Hart v. Leitch, Md. 91 Atl. 782; Bishop v. Frantz, Md. 93 Atl. 412. And see Torsch v. Dell, 88 Md. 459, 41 Atl. 903. Mass. Hemmenway v. Woods, 1 Pick. 524; Wilder v. Holden, 24 Pick. 8; Stone v. Crocker, 24 Pick. 81; Mitchell v. Wall, 111 Mass. 492; Bacon v. Towne, 4 Cush. 217; Parker v. Farley, 10 Cush. 281; Sartwell v. Parker, 141 Mass. 405, 5 N. E. 807. And see Moyle v. Drake, 141 Mass. 238, 6 N. E. 520; Shattuck v. Simonds, 191 Mass. 506, 78 N. E. 122; Casavan v. Sage, 201 Page 498. In Cobb v. Simon, 119 Wis. 597, 100 Am. St. Rep. 909, 97 N. W. 276, and also in Meysenberg v. Engelke, 18 Mo. App. 346, a claim of privilege was denied, but under such exceptional circumstances that the decisions throw no light on the question under consideration. In one case the communication was not made by the complaining witness, and in the other it was not made to the public prosecutor. It therefore appears that, while there is a conflict on the subject, the weight of authority supports the view here adopted. The judgment is reversed, and a new trial ordered. Mass. 547, 87 N. E. 893; Griffin v. Dearborn, 210 Mass. 308, 96 N. E. 681, to the effect that there was evidence for the jury that the complaint was prosecuted without probable cause and with malice. And see other Massachusetts cases, infra, this section. Mich.-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; Filer v. Smith, 96 Mich. 347, 35 Am. St. Rep. 603, 55 N. W. 999; LeClear v. Perkins, 103 Mich. 131, 26 L.R.A. 627, 61 N. W. 357; Rankin v. Crane, 104 Mich. 6, 61 N. W. 1007; Fine v. Navarre, 104 Mich. 93, 62 N. W. 142; McClay v. Hicks, 119 Mich. 65, 77 N. W. 636; Bennett v. Eddy, 120 Mich. 300, 79 N. W. 481; Goode v. Eslow, 151 Mich. 48, 114 N. W. 859. And see Prine v. Singer Sewing Mach. Co. 176 Mich. 300, 142 N. W. 377, holding where the evidence was in dispute, and not such as would have warranted the court in charging the jury, as a matter of law, concerning plaintiff's guilt, that "it was a question for the jury, whether, under the evidence, there was probable cause to justify the prosecutions of the plaintiff;" and DeBoer v. Adams, 159 Mich. 560, 124 N. W. 540, where the court said: "We are also of the opinion that the question whether defendant had probable cause for making the complaint was a question of fact for the jury. While the conduct of the plaintiff was not commendable, we do not think it alone justified the defendant, as a matter of law, in causing his arrest without further inquiry. The plaintiff's statement of what occurred differs in some respects from the defendant's statement, and if the jury believed his statement and found that those grubs in the middle of the road had twice before been cut down by the public authorities, and that defendant must have known of such cutting, and that Gouzewaard informed him that the overseer of highways had endeavored to induce his father to cut out these same grubs, and that, for the most part, the grubs were third growth from the original stumps, and constituted a nuisance in the highway, these facts, with the other circumstances disclosed by the record, would require the submission of the question of probable cause to the jury." WASHINGTON SUPREME COURT. JAMES SIMMONS, Respt., V. G. R. GARDNER et al., Appt. (46 Wash. 282, 89 Pac. 887.) Malicious prosecution — probable cause · question of law. 1. The question of the existence of prob able cause for a prosecution is one of law where the prosecutor made a full, truthful, and complete statement of facts to a reputable attorney and acted upon his advice. Possibly these cases are not in conflict with the earlier decisions in this jurisdietion as they may mean to submit only the existence of the facts to the jury with proper instructions from the court as to the law applicable thereto. But it seems quite clear that such a construction cannot be given to the decision in Davis v. MeMillan, 142 Mich. 391, 3 L.R.A. (N.S.) 928, 113 Am. St. Rep. 585, 105 N. W. 862, 7 Ann. Cas. 854, to the effect that the question of probable cause in an action for malicious prosecution is for the jury, where, upon the facts disclosed, there is room for two opinions, for the court said: "We feel warranted in saying that the discharge of the defendant in this case has not in itself any tendency to show a want of probable cause, but we are also of the opinion that it was proper to submit to the jury the question of probable cause. The only proof that the plaintiff offered to show want of probable cause was the fact of the arrest and discharge, the failure to accurately state the pretense, and the relations theretofore sustained by the parties. If from these the jury might conclude that an ordinarily fair and careful business man would be likely to believe in plaintiff's guilt, they should find probable cause and acquit the defendants. But that is essentially a question for the jury where there is room for two opinions; and there may be here. Therefore the court could not properly take the cause from the jury upon the ground that want of probable cause had not been shown." And see also Bartlett v. Jenkins, 150 Mich. 682, 114 N. W. 679. Minn.-Cole v. Curtis, 16 Minn. 182, Gil. 161: Burton v. St. Paul. M. & M. R. Co. 33 Minn. 189, 22 N. W. 300: Moore v. Northern P. R. Co. 37 Minn. 147, 33 N. W. 334; Gilbertson v. Fuller, 40 Minn. 413, 42 N. W. 203; Boyd v. Mendenhall, 53 Minn. 274, 55 N. W. 45; Smith v. Munch, 65 Minn. 256, 68 N. W. 19; Shafer v. Hertzig, 92 Minn. 171, 99 N. W. 796; Mundal v. Minneapolis & 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. And see Peake v. Milaca State Bank, 120 Minn. 455, 139 N. W. 813, Ann. Cas. 1914B, 1284; Blazek v. McCartin, 106 Minn. 461, |