delivered the opinion of the court, December 30th 1882.
There was no lack of testimony tending to prove that the relation of landlord and tenant, previously existing between the parties to this contention, had been terminated by the act of the plaintiff in error before he issued his warrant; and hence, there was no error in affirming the first point of plaintiff below, and instructing the jury that if they believed “ the evidence, Walbridge had no right to issue a landlord’s warrant. The act was a nullity, and the persons undertaking to enforce it by taking the property of the plaintiff were mere trespassers and the plaintiff was not bound to notice or respect it.” It cannot be doubted that a lessor who has parted with all his interest in the demised premises has no right to distrain for rent in arrea'r. Under the testimony before them, it was scarcely possible for the jury to do otherwise than find that the landlord and his bailiff were trespassers ab initio; and that fact had an important bearing on the criminal prosecution.
There was no error in refusing the points covered by the second, third, fourth and fifth specifications respectively. While it clearly appeared that the information was made by the constable, and there was no positive evidence that he did so by direction of the plaintiff in error, there was testimony from which it might be fairly and legitimately inferred that the latter not only encouraged but actively promoted the prosecution. His conduct during the preliminary hearing, objecting to granting any indulgence to the accused for the purpose of enabling him to procure bail, etc., was not that of a disinterested spectator or witness. It is true, there was some conflict of testimony as to that, and other circumstances tending to show his connection with the prosecution, but the question was properly for the jury *6and the testimony relating thereto was submitted with instructions that appear to be free from substantial error. The evidence of malice and want of. probable cause was also sufficient to justify the submission of those questions to the jury.
The sixth to tenth assignments, inclusive, covering detached portions of the charge, are not sustained. Considered as a whole, the instructions as to the law applicable to such a state of facts as the evidence tended to establish, were correct. 'While it is exclusively the province of the jury to pass upon the testimony and ascertain the facts, it is the duty of the court to say, as matter of law, whether they do or do not amount to probable cause. In that sense, probable cause is considered a mixed question of law and fact; and it was so treated by the learned judge in this case. He directed the jury to inquire, in the iirst .place, whether the plaintiff in error originated or promoted the prosecution. If they found he did not, there could be no recovery ; but, if they were satisfied that he did, it then became their duty to determine whether he had probable cause for so doing. • If he acted in good faith, “ not merely using the process of the criminal haw for the purpose of enforcing the payment of money, . . . and that the circumstances were such as to lead a judicious man to believe there had been a violation of the law, it would constitute probable cause.” If they found there was probable cause, “ that would be the end of the case, because there must not only be want of probable cause but malice.” If there was not probable cause, they should then consider the question of malice, etc. In all its aspects, the case was as favorably presented to the jury as the plaintiff in error could reasonably ask. The principal difficulty with which he had to contend was that the preponderance of evidence was against him, and the jury found accordingly.
The evidence complained of in the eleventh and twelfth specifications was rightly admitted ; and, for reasons given by the learned judge, that referred to in the thirteenth specification was properly rejected.
In that portion of the charge complained of in the fourteenth assignment, the use of the word “ proved ” was not strictly proper; but, it was evidently not intended to convey the idea that the fact therein referred to was conclusively established nor do we think it could have been so understood by the jury. In another part of the charge the same word is used — as clearly appears by the context — to convey the idea that there was direct and competent evidence of the fact; and throughout the charge, the learned judge was careful to impress upon the minds of the jury that it was exclusively their province to determine what the facts were.
Judgment affirmed.