The instructions given to the jury were correct, and leave.to the defendant no ground of complaint. The jury were told that the plaintiff must satisfy them that there was no probable cause for the arrest on the part of the defendant, and that the act was done maliciously. The definitions given of “ probable cause,” and of “ malice,” were such as have received the repeated, sanction of this court, and of many others. Bacon v. Towne, 4 Cush. 217. Stone v. Crocker, 24 Pick. 81. Wilder v. Holden, Ib. 8. Munns v. Dupont, 3 Wash. C. C. 31.
*499Whether there was probable cause, in cases of this kind, is a question of law upon the evidence, provided the facts are ascertained. But where the evidence is contradictory, the court will submit the question to the jury, with instructions adapted to the facts which they shall find to be proved. Kidder v. Parkhurst, 3 Allen, 393. The defendant justifies his proceedings on the ground of an honest mistake, resulting from an alleged strong personal resemblance between the plaintiff and the real offender. But the existence of any such resemblance was a controverted fact. There was evidence also which had some tendency to show that such information was furnished as to the plaintiff’s general good character, and that such circumstances were pointed out as to his personal appearance, as to render it doubtful, as a matter of fact, whether the defendant was acting upon such reasonable grounds of belief as to justify him for the purposes of this trial, or whether, on the other hand, his conduct was reckless, unreasonable, and without probable cause. This was a question of fact, and was submitted to the jury with proper instructions.
Exceptions overruled.