By the Court.
Daly, J.It is not necessary to inquire whether the discharge of the arrest by Judge Edwards was sufficient to establish, prima facie, the want of probable cause, so as to throw upon the defendant the onus of proving that there was probable cause; for, in addition to evidence of the fact of such discharge, the plaintiff introduced upon the trial the complaint, answer and affidavits in the original action in the Supreme Court, and it was for the court below to determine, upon all the evidence before them, whether there was a want of probable cause. This is a question of law, which it is the province of the court alone, and not of a jury, to determine, unless there is a dispute as to the facts. (Bulkeley v. Keteltas, 2 Selden, 384.)
The plaintiff was arrested upon the charge of being about to remove his property, with intent to defraud his creditors, and as especially intending to defraud the defendant; and the evidence upon which the order for the arrest was granted was the affidavit of a third party, to the effect that the plaintiff *11said—when informed by the party making the affidavit, of the plaintiff’s intention to bring a suit against him to recover damages for the breach of the agreement—that if the suit was brought, he would take good care and put his means in such a shape that the defendant would get nothing by it; that he would send his means to Tauab, a merchant in England, a person known to the plaintiff and to the party making the affidavit.
On the motion for the discharge of the arrest, the plaintiff explained what he meant by this remark, and Judge Edwards, in view of his explanation, and from the additional consideration that the action was one in which nominal damages alone could be recovered, granted the motion.
In addition to this, it appeared, by the testimony of Mr. Hartt, the attorney, that the defendant, when examined as a witness, admitted that the plaintiff had told him that he was indebted to Messrs. Tauab & Sons in England; that a part of the funds which he had, (eight or nine thousand dollars,) he had obtained from them, a part for two or three years, and a part for five years. Besides, the plaintiff, in his sworn answer, states, that he informed the defendant that he, the plaintiff, had $10,000 of his own money, and relied on his friend for $10,000.
These are the facts substantially upon which the plaintiff relied, and I have no hesitation in saying, that they do not make out a want of probable cause.
If the defendant had a claim that would enable him to maintain the action, he is to be regarded as a creditor, no matter what amount of damages he might recover; and it cannot be presumed, merely because he did not prosecute the action or suffered it to go by default, that he had no such claim. Suffering the action to go by default would not be sufficient to show a want of probable cause, (see Robert v. Bayles, 1 Sand. S. C. 47,) neither by itself nor in connection with the other circumstances disclosed on the trial below. The plaintiff’s declaration was one that may and would naturally have induced the belief that he intended to dispose of *12his property so as to prevent the defendant from collecting any thing by a judgment, if he should obtain one. It was sufficient to warrant the suspicion that he intended to do so, and a reasonable ground of suspicion, induced by circumstances sufficiently strong to lead a cautious person to believe that the charge made is true, amounts to probable cause. (Hoshay v. Ferguson, 2 Denio, 49.)
Judgment of nonsuit affirmed.