conflicting, the court should instruct the facts were proven. 26 Cyc. 109. Upon jury with reference to the different views the state of facts in this record, the court in to be taken of the evidence, that if they defining probable cause should have given believe certain facts from the evidence, the following instructions: 'If the jury there was not probable cause, and the plain- should believe from the evidence that the tiff is entitled to recover; but that, if they defendant, at the time he procured the take a different view of the facts and so issual of the warrant of arrest complained find, they should find for the defendant. of, believed, and had such grounds as would Masten v. Deyo, 2 Wend. 424: Paris v. Wad- induce a man of ordinary prudence to bedell, 1 McMull. L. 358; White v. Fox, 1 lieve, that plaintiff, on the occasion menBibb, 369, 4 Am. Dec. 643; Williams v. tioned in the evidence, attempted to asNorwood, 2 Yerg. 329. If there is no dis- sault him; or did, or said anything of, a puted question of fact, no conflict of testi- violent nature, calculated to disturb the mony, or no question of credit of witnesses, peace and good order of the persons presit is competent for the court, and its duty, ent; then, and in that event, there was probto instruct the jury whether the circum-able cause for procuring the issual of the stances are or are not sufficient to show warrant. Otherwise, there was not such probable cause. But it is error for the probable cause.' court to refer the determination of the question of probable cause to the jury under any state of the case, without declaring to them the principles by which they must be governed in determining the qestion; because it would be leaving to the jury the determination of questions of law. Ulmer v. Leland, 1 Me. 135, 10 Am. Dec. 48; Plummer v. Gheen, 10 N. C. (3 Hawks) 66, 14 Am. Dec. 572." وو So, an instruction that "probable cause' is such reasonable grounds as ordinarily prudent persons are accustomed to act upon when engaged in a like business, or the doing of a like thing, under like or similar circumstances," was defective as it did not tell the jury what facts constituted probable cause in the case. Keiner v. Collins, Ky., 171 S. W. 399. In Furness v. Porter, Walk. (Miss.) 442, So, to instruct the jury "that if they be- where the facts had not been found by the lieved from the evidence that the defend-jury, although the testimony was conflicting, ants instituted and carried on a prosecution against plaintiff on the charge of larceny, of which he was acquitted, and that the prosecution was without probable cause, and malicious, they must find for the plaintiff," was erroneous, as leaving the question of probable cause entirely to the jury. Whitfield v. Westbrook, 40 Miss. 311. The court quoted from the Greenwade Case, 31 Miss. 464, and this case may be cited to the same general propositions. it was held error to instruct the jury "that admitting all the testimony in favor of the plaintiff to be true, yet that he had not shown a want of probable cause." The courts said: "It is said in some of the elementary books that what shall be deemed probable cause is a matter upon which the courts shall decide, and not the jury. See Espinasse, N. P. 529; 2 Starkie, Ev. 912. But in Johnstone v. Sutton, 1 T. R. 520, 1 Bro. P. C. 76, 1 Eng. Rul. Cas. 765, Buller, In Schwartz v. Boswell, 156 Ky. 103, 160 Justice, said that the question of probable S. W. 748, where the court instructed the cause is a mixed question of law and fact; jury that "reasonable and probable cause whether the circumstances alleged to show it means such cause as would induce a rea- probable or not existed is a matter of fact; sonably cautious and prudent person to but whether, supposing them to be true, have another arrested under the same or they amount to probable cause, is a quessimilar circumstances as are shown by the tion of law. In this case, there being evievidence in this case, with the exception of dence on both sides, and the evidence being causing a conviction of the party arrested contradictory, it was surely the province on the charge preferred," one of the two of the jury exclusively to find the facts, grounds of objections to this instruction was to determine which were to be believed, the that it failed to inform the jury as to what witnesses of the plaintiff or of the defendfacts would constitute probable cause. Sus-ant, so that, according to the English autaining this objection, the court said: "As te thorities, we think the charge of the court the first ground of objection to this instruc- was incorrect." tion, it was said by this court in the case of Ahrens & O. Mfg. Co. v. Hoeher, 106 Ky. 692, 51 S. W. 194, that the court should tell the jury what facts constitute probable cause, and let them determine in a case like this whether these facts are proven. Whether certain facts constitute probable cause is a question of law for the court; but whether such facts are proven is for the jury. So, the court should have instructed the jury hypothetically within the range of the facts which the evidence tends to establish, as to what would constitute probable cause, and thus have left to the jury the determination only of whether such In Dreyfus v. Aul, 29 Neb. 191, 45 N. W. 282, the trial court of its own motion instructed the jury as follows: "If you find that the prosecution against the plaintiff was commenced without probable cause, excuse, or justification, you will find for the plaintiff," etc. The giving of this instruction was error. It left it for the jury to conjecture what facts constituted probable cause or excuse, when it was the duty of the court to inform the jury what facts constituted probable cause, and then leave it for the jury to say what facts were proven. And it was error to instruct the jury that "if they find from the evidence that at the time the defendant commenced the prosecution against the plaintiff on the charge of larceny before the magistrate, he had been informed that the plaintiff, either alone or with others, was converting the property, or had converted the property, of the defendant, to his own use, and that the defendant believed such statements to be true, and if they further find that such information was of such character as to warrant a cautious man, that is, a man of ordinary prudence, in believing the plaintiff guilty of the offense charged, and that the defendant did so believe, then the defendant would not be liable in this action." Turner v. O'Brien, 5 Neb. 542, and see subsequent appeal in 11 Neb. 108, 7 N. W. 850. The court said: "In the instruction the court stated the nature and character of the fact to be proved, namely, the mere conversion of property, and then threw upon the jury to determine whether such fact or circumstance constituted probable cause, or in other words, would warrant a man of ordinary prudence to believe the plaintiff was guilty of the offense charged. It is the duty of the court to determine whether such fact, if found, constituted probable cause, or a reasonable ground of suspicion, sufficient to warrant a cautious man in the belief that the plaintiff was guilty of larceny; and it was error to submit this questo the jury." The authorities generally agree that when the facts and circumstances relied on to show probable cause, or the want of it, are undisputed, admitted, or clearly established by uncontroverted testimony, and not capable of different inferences of fact, the question of probable cause becomes a pure question of law, and that the court without any assistance from the jury has only to say at once, as a matter of law, whether such facts and circumstances amount to probable cause. Or, as the rule is frequently and briefly stated, when the facts and circumstances are undisputed, probable cause is a question of law for the court, which it is error to submit to the jury. Cases taking this view, irrespective of the practice when the facts are in dispute, are: Eng.-Blachford v. Dod, 2 Barn. & Ad. 179, 9 L. J. K. B. 196; Davis v. Hardy, 6 Barn. & C. 225, 9 Dowl. & R. 380, 5 L. J. K. B. 91, 30 Revised Rep. 306; Watson v. Whitmore, 8 Jur. 964, 14 L. J. Exch. N. S. 41; Hill v. Yates, 2 J. B. Moore, 80; Wilkinson v. Foote, 5 Week. Rep. 22; Gibbons v. Alison, 3 C. B. 181; Riddell v. Brown, 24 U. C. Q. B. 90; Smith v. McKay, 10 U. C. IQ. B. 412; Baker v. Jones, 19 U. C. C. P. 365; Lucy v. Smith, 8 U. C. Q. B. 518; Donnelly v. Bawden, 40 U. C. Q. B. 611; Meaney v. Reid-Newfoundland Co. 39 N. S. 407; Martin v. Hutchinson, 21 Ont. Rep. 388. In Rogers v. Mahoney, 62 Cal. 611, the trial judge instructed as follows: "The jury, in an action for malicious prosecution, are not to determine whether the facts amount to a probable cause; but it is the province of the court to determine that question. have determined that question, gentlemen, when I tell you that the very fact that this man was arrested and liberated in the police court gave him a right of action," etc. The appellate court, reversing and ordering a new trial, said: "There was such conflict in the evidence as left it proper that the question of the existence of the facts on which the want of probable cause depended should be passed upon by the jury, unless the court below was correct in holding that the bare facts that the woman (called man in the instruction) was 'arrested and liberated' in the police court gave her a cause of action. The charge was erroneous, in that the court determined that the facts mentioned estab lished conclusively want of probable cause. The rule as laid down by the court would certainly simplify the trial of this class of actions. If correct, the law might be thus formulated: First, where plaintiff has been arrested, charged with an offense, and convicted, his action for malicious prosecution will not lie; second, where he has been arrested, charged, and discharged, and these facts are proven to the satisfaction of the court, the case of plaintiff in an action for malicious prosecution is made out, because malice may be inferred from want of probable cause. It needs but to state the second position to show that it cannot be successfully maintained." Fed.-Brown v. Selfridge, 224 U. S. 189, 56 L. ed. 727, 32 Sup. Ct. Rep. 444, affirming 34 App. D. C. 242; Crescent City L. S. L. & S. H. Co. v. Butchers' Union Š. H. & L. S. S. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472; 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; Staunton v. Goshorn, 36 ̊C. C. A. 75, 94 Fed. 52; Carroll v. Central R. Co. 134 Fed. 684; Cragin v. De Pape, 86 C. C. A. 559, 159 Fed. 691. Ala.-Ewing v. Sanford, 19 Ala. 605; McLeod v. McLeod, 73 Ala. 42; O'Neal v. McKinna, 116 Ala. 606, 22 So. 905; Gulsby v. Louisville & N. R. Co. 167 Aa. 122, 52 So. 392; Birmingham R. Light & P. Co. v. Ellis, 5 Ala. App. 525, 58 So. 796; Louisville & N. R. Co. v. Stephenson, 6 Ala. App. 578, 60 So. 490. Ark.-Whipple v. Gorsuch, 82 Ark. 252, 10 L.R.A. (N.S.) 1133, 101 S. W. 735, 12 Ann. Cas. 38. And see other cases cited in preceding sections. Ariz.-McDonald v. Atlantic & P. R. Co. 3 Ariz. 96, 21 Pac. 338; Richardson v. Powers, 11 Ariz. 31, 89 Pac. 542. Cal.-Potter v. Seale, 8 Cal. 218; Grant | v. Moore, 29 Cal. 644; Harkrader v. Moore, 44 Cal. 144; Dwain v. Descalso, 66 Cal. 415, 5 Pac. 903; 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; Smith v. Liverpool & L. & G. Ins. Co. 107 Cal. 432, 40 Pac. 540; Seabridge v. McAdam, 108 Cal. 345, 41 Pac. 409; Davis v. Pacific Teleph. & Teleg. Co. 127 Cal. 312, 57 Pac. 764, 59 Pac. 698; Johnson v. Southern P. Co. 157 Cal. 333, 107 Pac. 611. Colo. Gurley v. Tomkins, 17 Colo. 437, 30 Pae. 344; Grimes v. Greenblatt, 47 Colo. 495, 107 Pac. 1111, 19 Ann. Cas. 608; Brooks v. Bradford, 4 Colo. App. 410, 36 Pac. 303; Clement v. Major, 8 Colo. App. 86, 44 Pac. 776. D. C. Coleman v. Heurich, 2 Mackey, 189; Spitzer v. Friedlander, 14 App. D. C. 556; 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, 56 L. ed. 727, 32 Sup. Ct. Rep. 444. Ga.-Pomeroy v. Golly, Ga. Dec. pt. 1, p. 26. But see rule under statute, infra, IV. Ind. Brown v. Connelly, 5 Blackf. 390; 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; 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. E. 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. Iowa.-Knapp v. Chicago, 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; Drumm v. Cessnum, 58 Kan. 331, 49 Pac. 79; Atchison, T. & S. F. R. Co. v. Smith, 60 Kan. 4, 55 Pac. 272; MATSON V. MICHAEL; 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; Meyer v. Louisville, St. L. & T. R. Co. 98 Ky. 365, 33 S. W. 98; Lancaster v. McKay, 103 Ky. 616, 45 S. W. 887; Provident Sav. Life Assur. Soc. v. Johnson, 115 Ky. 84, 72 S. W. 754; Schott v. Indiana Nat. L. Ins. Co. 160 Ky. 533, 169 S. W. 1023; O'Daniel v. Smith, 139 Ky. 662, 66 S. W. 284; 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; Davis v. Cassidy, 23 Ky. L. Rep. 955, 64 S. W. 633. 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; Cooper v. Waldron, 50 Me. 80; Humphries v. Parker, 52 Me. 502; Speck v. Judson, 63 Me. 207. Md. Boyd v. Cross, 35 Md. 194; Medcalfe v. Brooklyn L. Ins. Co. 45 Md. 198; Thelin v. Dorsey, 59 Md. 539; Hooper v. Vernon, 74 Md. 136, 21 Atl. 556; Chapman v. Nash, 121 Md. 608, 89 Atl. 117. Mass.-Hemmenway v. Woods, 1 Pick. 524; Stone v. Crocker, 24 Pick. 81; Cloon v. Gerry, 13 Gray, 201; Parker v. Farley, 10 Cush. 281; Mitchell v. Wall, 111 Mass. 492; Good v. French, 115 Mass. 201; Allen v. Codman, 139 Mass. 136, 29 N. E. 537; Sartwell v. Parker, 141 Mass. 405, 5 N. E. 807; Donnelly v. Daggett, 145 Mass. 314, 14 N. E. 161; Casavan v. Sage, 201 Mass. 547, 87 N. E. 893; Griffin v. Dearborn, 210 Mass. 308, 96 N. E. 681. 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; Perry v. Sulier, 92 Mich. 72, 52 N. W. 801; White v. McQueen, 96 Mich. 249, 55 N. W. 843; Filer v. Smith, 96 Mich. 347, 35 Am. St. Rep. 603, 55 N. W. 999; Fine v. Navarre, 104 Mich. 93, 62 N. W. 142; Le Clear v. Perkins, 103 Mich. 131, 26 L.R.A. 627, 61 N. W. 357; Rankin v. Crane, 104 Mich. 6, 61 N. W. 1007; McClay v. Hicks, 119 Mich. 65, 77 N. W. 636; Bennett v. Eddy, 120 Mich. 300, 79 N. W. 481; Birdsall v. Smith, 158 Mich. 390, 122 N. W. 626. But see Davis v. McMillan, 142 Mich. 391, 3 L.R.A. (N.S.) 928, 113 Am. St. Rep. 585, 105 N. W. 862, 7 Ann. Cas. 854. Minn. Gilbertson v. Fuller, 40 Minn. 413, 42 N. W. 203; Bartlett v. Hawley, 38 Minn. 308, 37 N. W. 580; 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. Miss.-Greenwade v. Mills, 31 Miss. 464; Whitfield v. Westbrook, 40 Miss. 311; McNulty v. Walker, 64 Miss. 198, 1 So. 55. Mo.-Hill v. Palm, 38 Mo. 13; Sharpe v. Johnston, 59 Mo. 557; Moody v. Deutsch, 85 Mo. 237; Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650; Carp v. Queen Ins. Co. 203 Mo. 295, 101 S. W. 78; Hanna v. Minnesota L. Ins. Co. 241 Mo. 383, 145 S. W. 412; McGarry v. Missouri P. R. Co. 36 Mo. App. 340; Christian v. Hanna, 58 Mo. App. 37; Warren v. Flood, 72 Mo. App. 199; Matlick v. Crump, 62 Mo. App. 21; Pinson v. Campbell, 124 Mo. App. 260, 101 S. W. 621; Bosch v. Miller, 136 Mo. App. 482, 118 S. W. 506; March v. Vandiver, 181 Mo. App. 281, 168 S. W. 824. Neb.-Turner v. O'Brien, 5 Neb. 542; Ross v. Langworthy, 13 Neb. 492, 14 N. W. 515; Dreyfus v. Aul, 29 Neb. 191, 45 N. W. 282; Nehr v. Dobbs, 47 Neb. 864, 66 N. W. 864; Maynard v. Sigman, 65 Neb. 590, 91 N. W. 576; Bechel v. Pacific Exp. Co. 65 Neb. 826, 91 N. W. 853; Bank of Miller v. Richmon, 68 Neb. 731, 94 N. W. 998, affirming on rehearing 64 Neb. 111, 89 N. W. 627; Talcott v. Rice, 94 Neb. 539, 143 N. W. 803; Meyer v. Meese, 95 Neb. 226, 145 N. W. 256; Clark v. Folkers, 1 Neb. (Unof.) 96, 95 N. W. 328; Figg v. Hanger, 4 Neb. (Unof.) 792, 96 N. W. 658. N. J.-Sunderbrand v. Shills, 82 N. J. L. 700, 82 Atl. 914; Hartdorn v. Webb Mfg. 75 Atl. 893; Magowan v. Rickey, 64 N. J. L. 402, 45 Atl. 804; Stricker v. Pennsylvania R. Co. 60 N. J. L. 230, 37 Atl. 776, 3 Am. Neg. Rep. 431; Bell v. Atlantic City R. Co. 58 N. J. L. 227, 33 Atl. 80 Atl. 455. N. Y.-Bacon v. Townsend, 2 Edm. Sel. Cas. 120; M'Cormick v. Sisson, 7 Cow. 715; Bulkeley v. Smith, 2 Duer, 261; Bulkeley v. Keteltas, 6 N. Y. 387, reversing 4 Sandf. 450; Besson v. Southard, 10 N. Y. 236; Carpenter v. Shelden, 5 Sandf. 77; Masten v. Deyo, 2 Wend. 424; Gorton v. De Angelis, 6 Wend. 418; Weaver v. Townsend, 14 Wend. 192; Baldwin v. Weed, 17 Wend. 224; Burns v. Erben, 40 N. Y. 463; Garrison v. Pearce, 3 E. D. Smith, 255; Gordon v. Upham, 4 E. D. Smith, 9; Thompson v. Lumley, 50 How. Pr. 105; Stevens v. Lacour, 10 Barb. 62; Miller v. Milligan, 48 Barb. 30; Waldheim v. Sichel, 1 Hilt. 45. And see Burlingame v. Burlingame, 8 Cow. 142, and Murray v. Long, 1 Wend. 140, where the judges at the circuits granted nonsuits because probable cause was shown, and were sanctioned and upheld on appeal; but, as stated in Masten v. Deyo, supra, it is not necessarily to be thence inferred that the question of probable cause belongs exclusively to the trial judge to determine, as it is a common occurrence for trial judges to decide on the trial of a cause that the plaintiff has failed to make out his cause of action, and to order a nonsuit. N. D.-Kolka v. Jones, 6 N. D. 461, 66 Am. St. Rep. 615, 71 N. W. 558. Or.-Glaze v. Whitley, 5 Or. 164; Gee v. Culver, 12 Or. 228, 6 Pac. 775; Hess v. Oregon German Baking Co. 31 Or. 503, 49 Pac. 803; Stamper v. Raymond, 38 Or. 17, 62 Pac. 20. Pa. Fisher v. Forrester, 33 Pa. 501; Dietz v. Langfitt, 63 Pa. 234; McCarthy v. DeArmit, 99 Pa. 63; Walbridge v. Pruden, 102 Pa. 1; Mahaffey v. Byers, 151 Pa. 92, 25 Atl. 93; Leahey v. March, 155 Pa. 458, 26 Atl. 701; Mitchell v. Logan, 172 Pa. 349, 33 Atl. 554; Burk v. Howley, 179 Pa. 539, 57 Am. St. Rep. 607, 36 Atl. 327; Huckestein v. New York L. Ins. Co. 205 Pa. 27, 54 Atl. 461; Boyd v. Kerr, 216 Pa. 259, 65 Atl. 674; Robitzek v. Daum, 220 R. Co. 226 Pa. 523, 75 Atl. 724; McCoy v. Pa. 61, 69 Atl. 96; Roessing v. Pittsburg Kalbach, 242 Pa. 123, 88 Atl. 879; Cropley v. Givin, 30 Phila. Leg. Int. 160; Ruffner V. Hooks, 2 Pa. Super. Ct. 278; Scott v. Am. Dec. 123; Thomas v. Rouse, 2 Brev. 75; Campbell v. O'Bryan, 9 Rich. L. 204; Stoddard v. Roland, 31 S. C. 342, 9 S. E. 1027. S. D.-Krause v. Bishop, 18 S. D. 298, 100 N. W. 434. Tenn. Memphis Gayoso Gas Co. v. Williamson, 9 Heisk. 314. Tex.-Landa v. Obert, 45 Tex. 539; Ramsey v. Arrott, 64 Tex. 320. Vt.-French v. Smith, 4 Vt. 363, 24 Am. Dec. 616; Barron v. Mason, 31 Vt. 189; Driggs v. Burton, 44 Vt. 124. Va.-Boush v. Fidelity & D. Co. 100 Va. 735, 42 S. E. 877. W. Va.-Vinal v. Core, 18 W. Va. 1; Moats v. Rymer, 18 W. Va. 642, 41 Am. Rep. 703. Wash.-Levy v. Fleischner, 12 Wash. 15, 40 Pac. 384; Richardson v. Spangle, 22 Wash. 14, 60 Pac. 64; Voss v. Bender, 32 Wash. 566, 73 Pac. 697; SIMMONS v. GARDNER; Finigan v. Sullivan, 65 Wash. 625, 118 Pac. SSS; Baer v. Chambers, 67 Wash. And see also cases cited infra, this sec- 357, 121 Pac. 843, Ann. Cas. 1913D, 559; tion. Anderson v. Seattle Lighting Co. 71 Wash. 155, 127 Pac. 1108. N. C.-Leggett v. Blount, 4 N. C. (Term Rep. 123) 7 Am. Dec. 702; Plummer v. Gheen, 10 N. C. (3 Hawks) 66, 14 Am. Dec. 572; Swaim v. Stafford, 25 N. C. (3 Ired. L.) 289; Beale v. Roberson, 29 N. C. (7 Ired. L.) 280; Johnson v. Chambers, 32 N. C. (10 Ired. L.) 287; Vickers v. Logan, 44 N. C. (Busbee, L.) 394; Thurber v. Eastern Bldg. & L. Asso. 116 N. C. 75, 21 S. E. 193; Jones v. Wilmington & W. R. Co. 125 N. C. 227, 34 S. E. 398; Moore v. First Nat. Bank, 140 N. C. 293, 52 S. E. 944: Morgan v. Stewart, 144 N. C. 424, 57 S. E. 149; Humphries v. Edwards, 164 N. C. 154, 80 S. E. 165. Wis.-Plath v. Braunsdorff, 40 Wis. 107; Woodworth v. Mills, 61 Wis. 44, 50 Am. Rep. 135, 20 N. W. 728; King v. Apple, River Power Co. 131 Wis. 575, 120 Am. St. Rep. 1063, 111 N. W. 668, 11 Ann. Cas. 951; Topolewski v. Plankinton Packing Co. 143 Wis. 52, 126 N. W. 554. As stated in Gilbertson v. Fuller, 40 Minn. 413, 42 N. W. 203, "there being no controversy over the facts [in a particular case] it was for the court to declare whether probable cause existed; that is, whether the defendant had ‘a reasonable ground of suspicion, supported by circumstances suffici ently strong in themselves to warrant a puted, or when all the facts which the cautious man in the belief that the person plaintiff's evidence conduces to prove, do not accused is guilty of the offense with which he is charged.' In Bell v. Atlantic City R. Co. 58 N. J. L. 227, 33 Atl. 211, the court said: "We think that the question of the existence of a reasonable cause for the prosecution in question should have been decided by the court, and should not have been left, as it was, to the jury. The facts on which that question turned were not, as it seems to us, in any degree in dispute, and when that is the condition of affairs the legal rule is that it is the function of the court to pass upon their effect in law. To omit such duty was to deprive the defendant of the important right of testing, in a definite form, by a bill of exception and writ of error, the legal value of the plaintiff's case in its most important feature. In the presence of such a mistake as this, it is not possible to permit the verdict to stand." In Stone v. Crocker, 24 Pick. 81, the court said: "The defendant's counsel claims a right to have it tried by the jury. He alleges that it is a mixed question, involving both law and fact, and therefore should be submitted to the jury. This argument has in it more of truth than appositeness. Mixed questions must necessarily go to the jury; but with proper instructions from the court as to the law and its application to the facts. But such questions, when the facts are undisputed, resolve themselves into pure questions of law. The functions of the court and jury are different and generally distinct; though sometimes, especially in criminal cases, they run into each other so that they cannot be clearly distinguished or separated. For this case and others of the kind, we think there is no difficulty in drawing the line. If these functions encroach upon each other, it will not be because their respective provinces are not separated by plain boundaries. What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not, in any particular case, is a pure question of fact. The former is exclusively for the court; the latter for the jury. This subject must necessarily be submitted to the jury when the facts are in controversy; the court instructing them what the law is. 2 Starkie Ev. 912; Johnstone v. Sutton, 1 T. R. 545, 1 Bro. P. C. 76, 1 Revised Rep. 269, 1 Eng. Rul. Cas. 766; Candell v. London, cited in 1 T. R. 520; Reynolds v. Kennedy, 1 Wils. 232; Hill v. Yates, 2 J. B. Moore, 80; Isaacs v. Brand, 2 Starkie, 167, 19 Revised Rep. 695; Brooks v. Warwick, 2 Starkie, 389; Reed v. Taylor, 4 Taunt, 616, 13 Revised Rep. 701; Legget v. Blount, 4 N. C. (Term Rep. 123) 7 Am. Dec. 702; Munns v. Dupont, 2 Browne (Pa.) 42 Appx.; s. c. 3 Wash. C. C. 31, Fed. Cas. No. 9,926; Crabtree v. Horton, 4 Munf. 59: Kelton v. Bevins, Cooke, 90, 5 Am. Dec. 670; Ulmer v. Leland, 1 Me. 135, 10 Am. Dec. 48. But it may happen that this and other mixed questions need not and cannot properly be sent to the jury. When the facts are undis show a want of probable cause, it becomes a mere question of law which the court must decide, and it would be useless and improper to take the opinion of a jury upon it; for if they found for the plaintiff, the court would set aside the verdict, not so much because it was against evidence, as because it was against law. Golding v. Crowle, Sayer, 1; Bull. N. P. 14. But such was not this case. The judge instructed the jury that the evidence showed a want of probable cause. In other words, that all the facts which all the evidence tended to prove did not amount to a probable cause for the prosecution of the plaintiff. This withdrew nothing from the jury which belonged to them. It was undoubtedly a virtual decision of this branch of the case, and the jury could not find for the defendant without rejecting this instruction. But it did not assume to decide that any particular facts were or were not proved; but that all, of which there was any evidence, were not sufficient to justify the defendant. It was the most favorable course for him, because it brought his case to a decision upon his own testimony, as given before the magistrate, and upon the assumption that everything was proved which could fairly be inferred in his favor from that and all the other evidence in the case. If it had been left more generally to the jury, they might have found some of these inferences against him. But what is of more importance, it was exactly conformable to the rule of law upon this subject, and according to the principles which we have just explained. To have taken the opinion of the jury, whether certain facts amounted to probable cause or not, would have been to obtain their judgments upon a pure question of law; which would have been a manifest dereliction of duty on the part of the court, an avoidance of the responsibility which belongs to it, and a confounding of the functions of judge and jury, which should ever be kept as distinct as possible." The rule requiring the court to collate the evidence and instruct as to what facts in the particular case constitute probable cause has no application where there is no evidence of probable cause. Where all the facts which all the evidence tends to prove do not amount to probable cause, the court may instruct accordingly. Grimes v. Greenblatt, 47 Colo. 495, 107 Pac. 1111, 19 Ann. Cas. 608. The court said: "But were we to determine otherwise, and that it is the duty of the court to specifically collate the evidence and instruct the jury as to what facts, if found, would constitute 'probable cause' in the particular case on trial, the rule can apply only where there is some evidence of probable cause. If there be no such evidence the court certainly cannot collate the evidence and so advise the jury. Where there is dispute as to the facts relied on as constituting probable cause, or as showing a want thereof, the determination of such dispute is, like other questions |