enough to justify a reasonable belief in the plaintiff's guilt. Such an instruction, unless accompanied by a clear and accurate statement of what specific facts under the circumstances of the particular case would, if found to exist, be sufficient under the law for that purpose, is materially errone ous. Malicious prosecution — probable cause - question of law. 2. What constitutes probable cause for an arrest is a question of law, and, if a complaining witness believed upon reasonable grounds that the accused was guilty, it is not material, in an action against him for malicious prosecution, whether he believed that probable cause existed in a legal sense, unless as bearing upon the question of malice. As to the discharge of accused by examining magistrate as evidence of want of probable cause, see note in 3 L.R.A. (N.S.) 929. As to the conclusiveness of verdict of guilty set aside or reversed and followed by acquittal or nolle prosequi as evidence of probable cause, see note to MacDonald v. Schroeder, 6 L.R.A. (N.S.) 701. See also note in 34 L.R.A. (N.S.) 958, as to conviction by magistrate or justice of peace which has been reversed or set aside as probable cause. See "Malicious Prosecution," Index to L.R.A. Notes, pp. 880-882, for other notes on that subject. "Malicious prosecution, regarded as a remedy, is a distinctive action ex delicto for the recovery of damages to person, property, or reputation, shown to have proximately resulted from a previous civil or criminal proceeding, which was commenced or continued without probable cause, but with malice, and which has terminated unsuccessfully. Regarded as a specific tort, it is the wrong so committed. The term is also sometimes used as the name of the original judicial proceeding." 26 Cyc. 6. 1. Scope. The purpose of this note, as the subject would indicate, is a consideration of the cases involving the question whether the element of probable cause in actions for malicious prosecution raises a question of law for the determination of the court, or a question of fact for the jury. There are a number of actions, such as "malicious arrest," "false imprisonment," etc., in which this same question is presented, but they are entirely different and separate remedies (Britton v. Granger, 13 Ohio C. C. 281, 7 Ohio C. D. 182, cited in note in 18 L.R.A. (N.S.) 49) and have been generally excluded. Nor are actions for malicious abuse of legal process within the scope of this note. They involve the employment of a legal process by a party for some unlawful object, and not to effect the purpose for which it was intended by law; while a malicious prosecution is an action or proceeding instituted by one person against another from wrongful or improper motives, and without probable cause to sustain it (Kline v. Hibbard, 80 Hun, 50, 29 N. Y. Supp. 807, affirmed without opinion in 155 N. Y. 679, 49 N. E. 1099, cited in note in 18 L.R.A. (N.S.) 49). In the former the process is maliciously perverted and abused; in the latter it is maliciously used. Cases involving an alleged malicious use of process for which redress was sought in an action for malicious prosecution are within the limits of the present inquiry, so far as they deal with the question considered, whether the process maliciously used was a criminal warrant, order of arrest, writ of replevin, warrant of attachment, injunction, other provisional remedy. or Unless the contrary is stated or appears by plain implication, the words "plaintiff” and "defendant" are, as a rule, used throughout this note with reference to the parties to the action for malicious prosecution, and not to indicate the relation of the parties to the suit or prosecution out of which the action arose. II. Introduction. a. Nature of probable cause. That a proper and intelligent understanding of the subject under consideration, which is by no means an unimportant one, necessitates a clear idea of the meaning of the term "probable cause," is obvious. Tending to this end, probable cause has been more or less frequently defined as: "A suspicion founded on circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true." Potter v. Seale, 8 Cal. 217. "A reasonable ground of suspicion. supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Munns v. Dupont, 3 Wash. C. C 31, Fed. Cas. No. 9,926; Sanders v. Palmer, 5 C. C. A. 77, 14 U. S. App. 297, 55 Fed. 217. A PPEAL by defendant from a judgment Billingsley v. Maas, 93 Wis. 181, 67 N. W. of the District Court for Harvey Coun- 50; Cooper v. Flemming, 114 Tenn. 52, 68 ty in plaintiff's favor in an action brought L.R.A. 849, 84 S. W. 804; Adkin v. Pillen, to recover damages for alleged malicious 136 Mich. 682, 100 N. W. 176. prosecution. Reversed. The facts are stated in the opinion. Mr. F. L. Martin for appellant. Messrs. S. B. Amidon, D. M. Dale, and Jean Madalene, for appellee: If the facts are not in dispute, the question is for the court; if they are disputed, the jury must be left to pass upon the existence or want of probable cause. Atchison, T. & S. F. R. Co. v. Watson, 37 Kan. 782, 15 Pac. 877; Drumm v. Cessnum, 58 Kan. 334, 49 Pac. 78; Stewart v. Sonneborn, 98 U. S. 196, 25 L. ed. 120; "Such facts and circumstances as would induce an ingenuous and unprejudiced man, of common capacity, in the defendant's situation, to believe the plaintiff to be guilty, would justify a criminal prosecution against him." Stone v. Crocker, 24 Pick. 81. "That apparent state of facts, found to exist upon reasonable inquiry, that is, such inquiry as the given case rendered 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; Indianapolis Traction & Terminal Co. v. Henby, 178 Ind. 239, 97 N. E. 313, is to the same effect. "Such conduct on the part of the accused as to induce the court to infer that the prosecution was undertaken from public motives." Lavender v. Hudgens, 32 Ark. 763. The second definition is the one most frequently given, perhaps, in actions for criminal prosecutions, but, as has been said: "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 sufficient 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, 11 S. W. 223. However, notwithstanding the many verbal differences apparent in the various definitions of the courts, there seems to be substantial agreement among the authorities to warrant the statement that the standard of conduct for beginning or continuing any proceeding, whether civil or criminal, since, mutatis mutandis, the same principles determine probable cause in both instances, is that of a reasonable or ordinarily prudent man placed in the same situa The testimony of the county attorney was not privileged. 23 Am. & Eng. Enc. Law, 58; Alderman v. People, 4 Mich. 414, 69 Am. Dec. 321; Foster v. Hall, 12 Pick. 89, 22 Am. Dec. 400; Flack v. Neill, 26 Tex. 273; House v. House, 61 Mich. 69, 1 Am. St. Rep. 570, 27 N. W. 858; Caldwell v. Davis, 10 Colo. 481, 3 Am. St. Rep. 599, 15 Pac. 696; Cady v. Walker, 62 Mich. 157, 4 Am. St. Rep. 834, 28 N. W. 805; Bacon v. Frisbie, 80 N. Y. 394, 36 Am. Rep. 633; Allen v. Harrison, 30 Vt. 219, 73 Am. Dec. 302; Rhoades v. tion as the defendant. That is, if a reasonable man would have believed and acted under the circumstances as the defendant did, there would be probable cause; otherwise not. As has been said: "Probable cause in the nature of things is sometimes a state of facts; uncontroverted testimony or unimpeached records may show such guilt or conduct on the part of plaintiff as to make it out without any reference to, or despite, the mental attitude of defendant. It sometimes involves a state of mind; when honesty of knowledge, good faith of belief, fairness of statement to counsel, or the like is in question, the mens rea may be the only matter in issue. Between these self-explanatory extremes, however, there is a middle zone of cases in which the authorities are in conflict as to whether probable cause has reference to facts known or to facts in existence at the time of the commencement of the proceedings. Probable cause is a state of mind, in this, that the facts are regarded from the point of view of the prosecutor. The question is not what the actual facts were, but what he had reason to believe they were." 26 Cyc. 23. With these few observations in mind, it can be plainly seen that no hard and fast rule can be laid down as to what facts and circumstances in any given case amount to probable cause; but that every case must be determined upon its facts, in the light of its surrounding circumstances, in accordance with the definition of probable cause prevailing in the particular jurisdiction. a Probable cause being thus so essentially' a question of fact, and such questions being, under our system of jurisprudence, so properly for the determination of the jury, rather than the judge, who, as rule, is to determine only questions of law, it would seem, therefore, that the question of probable cause is naturally and logically a question for the determination of the jury. If it is not so determined, its position in our system of laws is plainly anomalous,—a thing which should not be without good and substantial reason. is the theory of our law, and the practice It court: O. E. Matson, while mayor of Burrton, verified a complaint charging M. M. Michael and Grace Michael, his wife, with violating the prohibitory law, and caused their arrest. The county attorney refused to prosecute, and the case was dismissed. Grace Michael brought action against Matson for malicious prosecution and recovered a judgment for $600, from which he appeals. Selin, 4 Wash. C. C. 715, Fed. Cas. No. Mason, J., delivered the opinion of the 11,740; Milan v. State, 24 Ark. 346; Stoney v. M'Neil, Harp. L. 557, 18 Am. Dec. 666; Crosby v. Berger, 11 Paige, 377, 42 Am. Dec. 117; Hunter v. Watson, 12 Cal. 363, 73 Am. Dec. 543; Gallagher v. Williamson, 23 Cal. 331, 83 Am. Dec. 114; Swaim v. Humphreys, 42 Ill. App. 370; Hatton v. Robinson, 14 Pick. 416, 25 Am. Dec. 415; People v. Buchanan, 145 N. Y. 1, 39 N. E. 846; O'Brien v. Spalding, 66 Am. St. Rep. 224, note: Crosby v. Berger, 11 Paige, 377, 42 Am. Dec. 117; Matthews v. Hoagland, 48 N. J. Eq. 455, 21 Atl. 1054; People v. Van Alstine, 57 Mich. 69, 23 N. W. 594, 6 Am. Crim. Rep. 272. generally, that twelve jurymen, themselves presumed to be reasonable men, are better fitted to decide what was the proper conduct for a reasonable man in a particular case than the judge, as the question is: what would a reasonable or ordinarily prudent man have done under the circum stances; and not what one learned in the law, as the judge is supposed to be, would have done. And as has already been noticed, it is just this question of the proper conduct of a reasonable man that is involved in the determination of the question of probable cause. b. Conspectus. However, notwithstanding the foregoing considerations as to the nature of probable cause, there is some conflict and considerable uncertainty among the authorities on this subject. Much of the latter element in particular, it seems, is but the natural result of a loose choice, or niggardly use of language on the part of some of the courts, so that the holdings in such cases are generally difficult to understand, and frequently amount to little more than the mere interpretation of the individual reader. As was said in Coleman v. Heurich, 2 Mackey, 189: "The question seems to be by no means free from difficulty, on the words of the authorities, though that difficulty appears to have arisen largely from the want of exactness in the expressions employed in stating the rule." Again, much confusion is caused by courts who claim to be in accord with the weight of authority, yet, failing, it seems, to fully appreciate such general rule, establish another and entirely different rule, as will be hereafter noticed. Doubtless, however, the primary reason for all the confusion and uncertainty in this branch of the law is to be found in the anomalous view of the question taken by the great weight of authority, and the desire of the courts to escape the inherent difficulties encountered in its practical application in nine out of ten, if not ninety-nine out of a hundred, cases, without expressly abrogating for all time and purposes the practice of centuries. For, strange though it may seem in the We think the verdict must be set aside for the reason that the instructions were so worded as naturally to lead the jury to understand that they were the judges of what constituted probable cause, and their findlight of what has already been said concern. ing the nature of the question of probable cause, the overwhelming weight of au thority, both in England and America, sustains the view that what facts, and whether particular facts, constitute probable cause, is purely a question of law in any case, irrespective of the condition of the evidence; that when the facts and circumstances relied upon to show probable cause, or want of it, are in dispute, or susceptible of conflicting inferences of fact or the credibility of witnesses is involved, the truth and existence of the facts and circumstances is a question of fact exclusively for the jury; but whether the facts so found to exist constitute probable cause is still a question of law exclusively for the court; and that when there is no dispute in the evidence, and the facts and circumstances are admitted or clearly established by uncontroverted evidence, there is nothing to submit to the jury, and the court has only to say at once, as a matter of law, whether or not such facts and circumstances constitute probable cause. mean Considerable confusion exists in this subject as the natural result of the failure of some of the authorities to properly observe any differentiation between the apparently conflicting statements, "probable cause is a question of law," and "probable cause is a mixed question of law and fact." These two statements harmonize perfectly when the former is understood to "what facts and whether particular facts amount to probable cause is a question of law;" and the latter that "what facts and whether particular facts exist is a question of fact for the jury; but whether such facts amount to probable cause is a question of law for the court." And it seems quite clear that these are the respective senses in which these statements are generally used. The opinion of the jury as to the existence of the facts may be obtained, it seems, in either of two ways. The prevailing practice appears to be by means of hypothetical instructions in which the jury are told that if they find certain enumerated facts to exist, there was probable cause, and they must find for the defendant; but if certain other enumerated facts are found ings show that they probably acted upon | 34 N. W. 330, and Davis v. McMillan, 142 that understanding. There is some conflict Mich. 391, 3 L.R.A. (N.S.) 928, 113 Am. on the subject; but the great preponderance St. Rep. 585, 105 N. W. 862, 7 Ann. Cas. of authority favors the view that the ques- 854. This court, however, has consistently tion of what facts are sufficient to consti- adhered to it and given it practical effect. tute probable cause is one of unmixed law. Drumm v. Cessnum, 58 Kan. 331, 49 Pac. 26 Cyc. 107; 19 Am. & Eng. Enc. Law, 669. 78; Atchison, T. & S. F. R. Co. v. Allen, 70 Courts which acquiesce in the general state- Kan. 743, 79 Pac. 648. In the Drumm-Cessment of the rule sometimes refuse an un- num Case it was said: "Where the facts are disputed, it must be left to the jury to determine what the facts are; but the court should instruct what facts amount to probable cause for an arrest and what do not. The court should summarize the claims of the parties, and state to the jury what basis of fact must exist to show probable qualified application of it. For illustration, it is approved in Fagnan v. Knox, 66 N. Y. 525; Erb v. German American Ins. Co. 112 Iowa, 357, 83 N. W. 1053; and Hamilton v. Smith, 39 Mich. 222, 227; but denied application in Heyne v. Blair, 62 N. Y. 19; Donnelly v. Burkett, 75 Iowa, 613, to exist, there was a want of probable cause, and their verdict must be for the plaintiff. And where such is the practice, it is equally the duty of the court to so collate the evidence and instruct the jury when the facts are numerous and complicated, as when the same are few and simple. And in no case can the court, simply by defining probable cause to the jury, leave it to them to find whether the facts established in the case are within or without the definition, as such practice surrenders to the jury the court's duty of saying, as a matter of law, what is the legal effect of the facts found to exist, and leaves both the questions of law and fact to the arbitrament of the jury. The other, and apparently less frequent, practice for obtaining the opinion of the jury on its particular phase of the question of probable cause, seems to be the use of the special verdict. In this way the court gets the opinion of the jury as to what facts exist without giving any intimation as to what facts must exist to entitle either party to win, and upon the facts Fo ascertained, he determines the existence or nonexistence of probable cause as a matter of law. The special verdict seems, in many respects, the better practice. A few cases sanction the practice when the evidence is conflicting, of defining probable cause to the jury, and leaving them to decide, in the light of such definition, whether probable cause for the prose cution existed or not. III. General rule. a. Generally. The general rule of the common law, sustained by the overwhelming weight of authority, both in England and America, is that what facts, and whether particular facts, constitute probable cause, is always a question of law, which the judge must decide upon the facts found to exist in the particular case, and which it is error for him to submit to the decision of the jury. Eng.--Mitchell v. Jenkins, 5 Barn. & Ald. 588, 2 Nev. & M. 301, 3 L. J. K. B. N. S. 35; Hailes v. Marks, 7 Jur. N. S. 851, 7 Hurlst. & N. 56, 30 L. J. Exch. N. S. 389, 4 L. T. N. S. 805, 9 Week. Rep. 808; Watson v. Whitmore, 8 Jur. 964, 14 L. J. Exch N. S. 41; Hadrick v. Heslop, 12 Jur. 600, 12 Q. B. 267, 17 L. J. Q. B. N. S. 313; Chapman v. Heslop, 18 Jur. 348, 2 C. L. R. 139, 23 L. J. Q. B. N S. 49, 2 Week Rep. 74; Hill v. Yates, 2 J. B. Moore, 80; Busst v. Gibbons, 6 Hurlst. & N. 912; Golding v. Crowle, Sayer, 1; Gibbons v. Alison, C. B. 181; Hughson v. Keith, 10 N. B. 559; Peck v. Peck, 35 N. B. 484; Meaney v. ReidNewfoundland Co. 39 N. S. 407. U. S.-Stewart v. Sonneborn, 98 U.S. 187, 25 L. ed. 116; Murray v. McLane, Brunner, Col. Cas. 405, Fed. Cas. No. 9,964; Castro v. De Uriarte, 16 Fed. 93; Sanders v. Palmer, 5 C. C. A. 77, 14 U. S. App. 297, 55 Fed. 217; Knight v. International & G. N. R. Co. 9 C. C. A. 376, 23 U. S. App. 356, 61 Fed. 87; Cragin v. DePape, 86 C. C. A. 559, 159 Fed. 691. 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, infra. Cal.-Potter v. Seale, 8 Cal. 218; Grant v. Moore, 29 Cal. 644; Harkrader v. Moore, 44 Cal. 144; Emerson v. Skaggs, 52 Cal. 246; Rogers v. Mahoney, 62 Cal. 611; Fulton v. Onesti, 66 Cal. 575, 6 Pac. 491; Eastin v. Bank of Stockton, 66 Cal. 123, 56 Am. Rep. 77, 4 Pac. 1106; 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; Seabridge v. McAdam, 108 Cal. 345, 41 Pac. 409; Scrivani v. Dondero, 128 Cal. 31, 60 Pac. 463; Runo v. Williams, 162 Cal. 444, 122 Pac. 1082; Carpenter v. Ashley, 15 Cal. App. 461, 115 Pac. 268. Colo. Wyatt v. Burdette, 43 Colo. 208, 95 Pac. 336; Grimes v. Greenblatt, 47 cause, and what will sustain the claim of case, such facts had come to the knowledge a want of probable cause." Page 333. of the defendant at the time he entered the complaint against the plaintiff is a question of fact for the jury to determine from a pre In the present case the court gave this instruction: "You are instructed that, to constitute probable cause for criminal prose- | ponderance of the evidence." This definicution, there must be such reasonable grounds of suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged, and, in this connection, you are further instructed that a mere belief that an innocent person is guilty of a crime is not alone sufficient to justify causing his or her arrest. The facts must be such as would justify an ordinarily intelligent and reasonably prudent person in entertaining such belief. Whether, in this Ind. Brown v. Connelly, 5 Blackf. 390; Newell v. Downs, 8 Blackf. 525, note; Lacy v. Mitchell, 23 Ind. 67, and note; Pennsylvania Co. v. Weddle, 100 Ind. 138; 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; 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, 31 Ind. App. 414, 68 N. È. 179; Sasse v. Rogers, 40 Ind. App. 197, 81 N. E. 590; Henderson v. McGruder, 49 Ind. App. 682, 98 N. E. 137: Cleveland, C. C. & St. L. R. Co. v. Dixon, 51 Ind. App. 658, 96 N. E. 815. But see Lytton v. Baird, 95 Ind. 349; Strickler v. Greer, 95 Ind. 596; Keesling v. Doyle, 8 Ind. App. 43, 35 N. E. 126. 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; Knapp v. Chi-' tion of what constitutes probable cause is doubtless sufficiently accurate, although the use of "cautious" in place of "prudent" has been criticized. McClafferty v. Philp, 151 Pa. 86, 24 Atl. 1042. As it is not the province of the jury to determine what circumstances would induce a reasonably prudent man to believe another guilty of a crime, there seems to be no purpose in the giving of an abstract instruction on the subject. "Inasmuch as the question of probable cause is always to be determined by the court from the facts in each particular case, it would | cago, B. & Q. R. Co. 113 Iowa, 532, 85 N. W. 767. Kan.-Parli v. Reed, 30 Kan. 534, 2 Pac. 635; Bell v. Keepers, 37 Kan. 64, 14 Pac. 542; 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; MICHAEL v. MATSON; Markley v. Kirby, 6 Kan. App. 494, 50 Pac. 953; Turney v. Taylor, 8 Kan. App. 593, 56 Pac. 137. Ky.-Faris v. Starke, 3 B. Mon. 4; Lancaster v. McKay, 103' Ky. 616, 45 S. W. 887; Ahrens & O. Mfg. Co. v. Hoeher, 106 Ky. 692, 51 S. W. 194; Lancaster v. Langston, 18 Ky. L. Rep. 299, 36 S. W. 521; Alexander v. Reid, 19 Ky. L. Rep. 1636, 44 S. W. 211; Moore v. Large, 20 ̊ Ky. L. Rep. 409, 46 S. W. 508. La.-Burkett v. Lanata, 15 La. Ann. 337. Me.-Ulmer v. Leland, 1 Me. 135, 10 Am. Dec. 48; Varrell v. Holmes, 4 Me. 168; Stevens v. Fassett, 27 Me. 266; Taylor v. Godfrey, 36 Me. 525; Page v. Cushing, 38 Me. 523; Marks v. Gray, 42 Me. 86; Humphries v. Parker, 52 Me. 502; Speck v. Judson, 63 Me. 207. Md.-Cecil v. Clarke, 17 Md. 508; 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; Hooper v. Vernon, 74 Md. 136, 21 Atl. 556; Campbell v. Baltimore & O. R. Co. 97 Md. 341, 55 Atl. 532; Chapman v. Nash, 121 Md. 608, 89 Atl. 117; Bishop v. Frantz, Md. 93 Atl. 412. And see Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089. Mass. Hemmenway v. Woods, 1 Pick. 524; Wilder v. Holden, 24 Pick. 8; Stone v. Crocker, 24 Pick. 81; Bacon v. Towne, 4 Cush. 217; Mitchell v. Wall, 111 Mass. 492; Good v. French, 115 Mass. 201; Sartwell v. Parker, 141 Mass. 405, 5 N. E. 807; Kidder v. Parkhurst, 3 Allen, 393; Parker v. Farley, 10 Cush. 281. And see Wills v. Noyes, 12 Pick. 324. 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, |