delivered the following dissenting opinion:
I am unable to agree with the' majority of the Court in the opinion delivered in this case. Whether the verdict of the jury was right or wrong, upon the facts of the case, is not a question with which we have to deal in this Court. The case seems to me to have been fairly submitted to the jury; and that the instructions of the Court, as given at the instance of both plaintiff and defendants, were proper in themselves, and such as gave neither party cause to complain. If the verdict was found in disregard of the decided weight of the evidence, or against the instructions of the Court, or if the damages assessed were regarded as excessive, in view of the facts of the case, the remedy for such errors in the conduct of the jury was with the Court that tried the case, by the exercise of the power of granting a new trial. It is clearly not with this Court. It is only with the legal propositions involved that this Court can deal in the exercise of its power of review.
I fully appreciate the importance of so administering-the law in these cases as to avoid deterring parties from being active in bringing offenders to justice. It is of the first importance to the peace and security of society, that there should be no restraints upon those who have information, from proceeding against criminal offenders, in order that they be brought to trial, and to punishment if their guilt be established. But, at the same -time, it is of the utmost importance to the individual rights and liberties of the citizen, that we observe carefully and with precision the line to which a party may be justified in going in his efforts of prosecution, and beyond which he will be held liable for the violation of personal rights. The law has drawn the line with clearness and distinctness, and the Courts should always be careful that such line be not transcended.
In this case the majority of the Court hold, not that the plaintiff has failed in his proof to make out a case that *555would have justified a verdict against the defendants, hut that the latter have succeeded in producing proof of such facts and circumstances as establish the existence of probable cause for the prosecution that was instituted against, the plaintiff; and hence there was no ground of action, against them. And this is made a question of law. to he finally and conclusively passed upon by the Court, without the aid or finding of a jury. It is from this mode of' disposing of the case that I dissent.
There is no question of the right and duty of the Court-to determine, upon a given state of facts, whether they constitute probable cause or not; but whether those facts he true or false, or whether they were, in good faith, believed to be true by the defendant at the time he made them the ground of his action, are questions of fact exclusively for the jury.
Hence the question of probable cause is a mixed question of law and of fact. This has been regarded as the settled law ever since the leading case of Sutton vs. Johnstone, 1 T. R., 493. In that case it was declared, in the reasons upon which the judgment was ultimately affirmed in the House of Lords (1 T. R., 545, 784), that “ The question of probable cause is a mixed proposition of law and of fact. Whether the circumstances alleged to show it probable or not probable, are true and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law.” And this principle has been repeated, substantially, in several decisions, of our own.
If, however, the question of probable cause be dependent upon facts that have been proved beyond question or contradiction, and in regard to which there is no conflict or doubt, the Court may well pronounce upon the legal effect of such facts, and if they establish the existence of a. reasonable and probable cause in the judgment of the Court, the case may he taken from the jury; as in the *556cases of Davis vs. Hardy, 6 Barn & Cr., 225, and Boyd vs. Cross, 35 Md., 194. But in this case I do not understand such to he the state of the proof. On the contrary, the proof offered by the defendants was made up of a variety of circumstances, many of which did not relate to the immediate transaction upon which the prosecution was founded, and only had an indirect hearing, and which come to the defendants in a second-hand way. Whether these facts were well founded, or whether the defendants believed them to he true, were certainly questions of fact for the jury; for whether they were believed to he true or :not, was most material as to the motive of the prosecution. Venafra vs. Johnson, 10 Bing., 310; Broad vs. Ham, 5 Bing., N. C., 722. In order to justify the defendants, there must have been a reasonable and probable cause, such as would operate upon the mind of a reasonable and discreet man, having reason to believe in the truth of the facts upon which he proceeded; and therefore the real questions were, upon the evidence, whether facts sufficient to constitute a reasonable and probable cause had been proved; and whether those facts were really believed to he true at the time of the prosecution by the defendants, and formed the basis of their action. These were questions of fact for the determination of the jury, and I therefore think the Court below committed no error in submitting the case to the jury upon the instructions that were given.