MALICIOUS PROSECUTION, a prosecution, either criminal or civil, by regular process of law, unwarranted by the proved facts, and instituted without probable cause. As the person against whom such prosecution has been brought has been arrested or imprisoned if it were by criminal suit, and has been put to expense if it were by civil suit, he has a right to sue, and, if he can establish the groundlessness of the prosecution, to recover from the person who instituted it. The person who brings an action for malicious prosecution must show that the former action was groundless and is at an end; that it was conducted in regular course of law before a court of competent jurisdiction; and that it was malicious and without probable cause. Probable cause exists when there were such circumstances as would properly justify- a man of sound discretion and reason in believing that the defendant committed the act for which the prosecution was begun. In the absence of probable cause,rnalice will be inferred; but if it be con
, elusively shown that the prosecutor acted in good faith, evidence of actual malice must be given. But, ou the other hand, if probable cause be shown, proof of actual malice will not maintain an action. The guilt or innocence of the person prosecuted does not affect the question of probable cause, which depends upon the evidence of the existence, in the prosecutor's mind, of a belief, founded upon reasonable grounds, of the guilt of the accused person. What constitutes probable cause is a mixed question of law and fact; that is, if there be no dispute as to the facts, the court decides whether those facts constitute probable cause; but if the facts are disputed, the jury are to find the facts, under ibstruction from the court as to what facts are sufficient to make out probable cause.