delivered the opinion of the court, November 21st 1881.
Prosecutions are presumed to have been properly instituted; and hence, to sustain ail action for malicious prosecution, malice and want of probable cause must both concur and be proved by the plaintiff: Walter v. Sample, 1 Cas. 275; Dietz v. Langfitt, 13 P. F. S. 234.
] Probable cause does not depend on the state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting. Among the numerous attempts to define it are, “ A reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautions man in believing that the party is guilty of the offence;” and, “ A deceptive appearance of guilt arising from facts and circumstances misapprehended, or misunderstood, so far as to produce belief.” The substance of all the definitions is a reasonable ground for belief of guilt. Representations of others may be an adequate foundation for it, especially if made by those who have liad opportunities for knowledge, or who have made investigation: Smith v. Ege, 2 P. F. S. 419. lie who has probable cause, or in other words, reasonable grounds for belief of guilt, stands acquitted of liability : Travis v. Smith, 1 Barr, 234. This question must be judged by the circumstances existing at the time of the arrest for the offence charged; and it is immaterial that the prosecutor subsequently learned his mistake: Swain v. Stafford, 4 Ired. 392. The belief must be that of a reasonable and prudent man, else the most baseless prosecutions would be safe. But some allowance will be made where the prosecutor is so personally injured by the offence that he could not likely draw his conclusions with the same impartiality and absence of prejudice that a person entirely disinterested would deliberately »do. And all that can be required of him is that he shall act j, as a reasonable and prudent man would be likely to act under Nike circumstances: Cole v. Curtis, 16 Minn. 182. In Fisher v. Forrester, 9 Cas. 501, Woodward, J., said of the defendant who had commenced a prosecution which failed, doubtless he was greatly excited and not wholly without cause; and it is not strange that he was mistaken, in some particulars, in recounting the events of the moment. And he was not condemned for Ms mistakes.
What facts and circumstances amount to probable cause is a question of law. Whether they exist in any particular case is a question of fact. Where the facts are in controversy the sub-1 ject must be submitted to the jury, in which event it is the \ *70duty of the court to instruct them what facts will constitute probable cause, and submit to them only the question of such facts. This principle is well settled. If all the evidence is insufficient to establish probable cause the court shall so instruct the jury, for they are not at liberty to find a fact without evidence ; and if the admitted facts amount to probable cause, the court should direct a verdiqt for the defendant, even if his malice were clearly proved, jj
Malice in law exists títere an act is done wrongfully and designedly by one person to the injury of another. Prosecutions may be instituted and pursued with pure motives, but so regardless of the forms of law and judicial proceedings as to render the transactions illegal and malicious : Page v. Cushing, 38 Me. 523. Yet something more than mere legal or theoretical malice is requisite to sustain an action for malicious prosecution,. for it must be proved as a fact^ It may be inferred from the want of probable cause, and generally is, but its existence is a fact for the jury. . Where it is a just and proper inference from all the facts and circumstances of the case, upon all the evidence in the cause, that the defendant was not actuated by any improper motives, but only from an honest desire to bring a supposed offender to justice, the action will not lie, because such facts and circumstances disprove that which is of the essence of the action, namely, the malice of the defendant in pressing the charge: Vanderbilt v. Mathis, 5 Duer 304. When the prosecutor submits the facts to an attorney at law, who advises they are sufficient, and he acts thereon in good faith, such advice is often called probable cause and is a defence to an action for malicious prosecution; but in strictness, the taking of the advice of counsel and acting thereon rebuts the inference of malice arising from the want of probable cause. The law favors honest efforts to bring the guilty to justice, and where a citizen proceeds by complaint before a magistrate, though the prosecution be unwarranted in fact, if his motives were pure he will be protected.
The foregoing principles have been brought into view because most of them apply in the pending case. This action is against the mayor and his officers for false imprisonment, and in some respects it is by no means analogous to an action for malicious prosecution. In that the presumption is that the defendant is not guilty. In this, the act in itself is wrongful, and the burden is upon the defendants to prove that the imprisonment was by authority of law. The question of probable cause in trespass for false imprisonment is one of law, and upon principle there is no ground for diversity on this point. It was so treated in Burns v. Erben, 40 N. Y. (Hand) 463, and in Wake*71ly v. Hart, 6 Binn. 316; and is sustained by tbe weight of authority in this country and in England.
The fact of felony, and reason for suspecting a particular person, justify his arrest by a private person. But a peace officer, who arrests one upon reasonable suspicion of felony, will be excused, even though it appear afterwards that in fact no felony had been committed. It may be expected that a felon will flee from justice, if an opportunity is afforded him, and that if he knows he is suspected he will do what may be in his power to obliterate the evidences of his crime. In those circumstances are found forcible reasons for prompt action in bis arrest. The public safety, and due apprehension of criminals charged with heinous crimes, imperiously require that such arrests should be made without warrant by officers of the law. “ Many an innocent man has been and may be taken up on suspicion; but tbe mischief and inconvenience to the public, in this point of view, is comparatively nothing; it is of great consequence- to the police of the country.” Burns v. Erben, supra; Rohan v. Sawin, 5 Cush. 281; Wakely v. Hart, supra; Cooley on Torts 174.
The gist of false imprisonment is unlawful detention, and the general rule is that malice will be inferred from the want of probable cause, so far at least as to sustain the action. Constables and other police officers, who arrest persons suspected of having committed felony, in actions for damages, should be allowed to defend upon like principles as a private person, who causes an arrest by a complaint on oath; for it is the duty of these officers to make such arrests. If an officer wantonly and maliciously arrests an innocent man, he ought to be liable in quite as heavy punitive damages as a private person would be for a causeless and malicious prosecution; but if without malice, and in the honest endeavor to arrest and bring a felon to justice, lie takes an innocent person, who was unjustly suspected, he should not suffer at all. And if the sheriff or mayor of a great city, or a justice of the peace, be sued for false imprisonment, made in an effort to suppress riot, or to arrest a murderer, the evidence on the part of the defendant showing his good faith, and the existence of probable cause, need not be very strong to shift the burden upon the plaintiff to establish want of reasonable cause and malice. It is of tbe utmost importance that these officers act promptly and fearlessly, as well as honestly, in such circumstances.
In the order for the plaintiff’s arrest, the mayor acted in his ministerial capacity, not liis judicial. No complaint had been made before bim; lie did not hear and determine. Many of the proper acts of a justice of the peace are ministerial. In the performance of these, if he wrongfully injure an individual, he would be liable the same as if he were not clothed with eer*72tain judicial functions. If an officer fail to perform a ministerial duty of a purely public character, as the execution of a capital sentence, no private person would have a right of action against him. When the ministerial duty involves individual rights, the case is different. If a justice of the peace, without reasonable cause, maliciously orders the arrest of a person .for breach of the peace, or felony, he may be compelled to answer the injured party in compensatory damages, and, also, exemplary, proportionate to the wantonness and oppressiveness of his conduct. Otherwise the danger from the acts of reckless officers would be only less than the danger of holding honest and prudent officers liable in damages whenever they mistakenly arrested an innocent man.
In trespass all the defendants are alike guilty, each is liable for the damages sustained without regard to the different degrees or shades of guilt; the damages are not divisible, and the verdict should be for one amount against all the defendants, for such sum as the most culpable ought to pay. This rule has few exceptions. However, when exemplary damages are claimed against a defendant, his intent must be considered. Two persons may be liable, one for punitive damages, and the other only for compensatory. As where the plaintiff was arrested by a police officer, and another, one acting in good faith and the other maliciously, the true criterion of damages is the whole injury which the plaintiff sustained from the joint trespass. In such case, if the plaintiff means to get exemplary damages, he should proceed against the party which ought to be punished in that way: Clark v. Newsam & Edwards, 1 Exc. 130. Under the evidence in this case, the jury should have been instructed, as respects exemplary damages beyond compensation for the injury done to the plaintiff, to assess them according to the acts of the most innocent of the defendants, and if any defendant was not liable for exemplary damages, none should be included in the verdict, for the question was as to the motives of the defendants.
Having expressed our opinion upon the principal questions of law raised by the assignments of error, it remains to consider whether the jury were rightly instructed to render a verdict for the plaintiff, if the defendants failed to prove probable cause, or to disprove malice, the instruction was just.
lOn Saturday, July 21st 1877, a riot occurred in Pittsburgh, duriBg which more than twenty persons were killed and a vast amount of property destroyed. Eor ten days the community was considered in a dangerous condition, troops were juesent under the command of the Governor of the State, an extra force of police was employed, and a committee of public safety were meeting every day. At Forty-ninth street, near the cemetery, on *73Sunday morning, two soldiers were killed. The night before a brother of the plaintiff had been killed, as alleged, by the soldiers. Within a few days Mr. Bostwick told White, a detective officer, that James Graham, on Sunday, had pointed to a man and said, “Bostwick, there goes Do Armit, the man that shot those two soldiers at the cemetery.” White at once informed the mayor, who directed him to investigate in the neighborhood where the men were shot. He did so, and was informed that several citizens had seen the murderer, who left his gun at the house of Reardon, immediately after the shooting. Graham told him to go to Dale, who could give him the information wanted. Dale did not like to say anything, was afraid to express himself, and in answer to the question if the name was De Armit, said, “ You are — near it. I have nothing more to say,” and walked off. The officer found it difficult to get people to talk about it, they evaded, and appeared to be in fear; but all who said anything said the man was a De Armit, from the reports. The officer communicated what he learned to the mayor. These facts the jury could well have found, and doubtless would, had the opportunity been given. The fact of the felony is now admitted, and it was then notorious. By law, the mayor is the chief conservator of the peace in the city of Pittsburgh. Upon the verity of the testimony adduced by the defendants, the mayor had probable cause to suspect that the plaintiff had committed the crime. “ The condition of the community during the time covered by the testimony ” was material for him to consider with the fact that citizens appeared in fear, and evaded the inquiries of the detective officer. Probably, they feared the mob, or the murderer. This fact, also, would hear upon the apparent necessity of arresting both the De Armits at the same time. The facts, as they appeared at and before the giving of the order for the arrest, must control in determining if there was reasonable cause. Very often appearances are not tlie same after the event, as before.;
We think the facts hi this case more clearly show probable cause for the arrest, than did the facts in Smith v. Ege, 2 P. F. S. 419, for the prosecution. There the prosecutor employed detectives 'who were informed by the neighbors that suspicion rested upon the Smith family; a girl told them one of the Smith boys had said to her he committed the murder, and a knife said to.have belonged to the murdered man was found in the cabin of the hoys. Upon this information, complaint was made by Ege, the father and sons were arrested and committed to jail, and on a further hearing they were discharged. It was held, in an action by the father for malicious prosecution, that there was reasonable ground for belief of the guilt of the plaintiff and his sons.Where a high crime has been committed very stringent *74proof is not required to establish that the prosecutor had ground for reasonable belief that a suspected party was guilty. As already seen, peace officers may arrest upon suspicion of felony. A high officer, as the sheriff, may arrest a parly merely suspected of a capital offence. Suspicion is not belief. Probable cause for suspicion by a prudent and reasonable man, that a party committed a high crime, may not be sufficient to induce him to believe sucb party guilty. If tbe mayor bad good reason to suspect, it was bis duty to act, to the end that tbe felon should not escape.
W ere the evidence insufficient to establish probable cause, and such as to warrant a finding that the defendant, as mayor of the city, without malice, and with the single purpose of bringing the'murderer to a trial by due process of law, ordered the plaintiff’s arrest, the fact would be for the jury. Because the plaintiff was innocent of the crime, it does not follow that the mayor was malicious.
An innocent man is unfortunate when he is suspected of having committed a high crime, and is deeply injured when imprisoned upon suspicion; but be has no redress, if his injury came through the proper aetiouof a public officer while in the faithful performance of his duty.”\
Tbe questions set out in the tenth, eleventh and twelfth assignments were so foreign to the issue that they ought to have been overruled. Though asked in cross-examination, they were not admissible as tending to discredit tbe witness.
Judgment reversed, and venire facias de novo awarded.