Whether the circumstances relied on are true is a question for the jury ; but whether if true they amount to probable cause is a question of law for 'the court ; Stevens v. Fassett, 27 Me. 266 ; Besson v. Southard, 10 N. Y. 240 ; Ash v. Marlow, 20 Ohio 119 ; 10 Q. B. 272 ; Schofield v. Ferrers, 47 Pa. 194, 86 Am. Dec. 532; Ball v. Rawles, 93 Cal. 222, 28 Pac. 937, 27 Am. St. Rep. 174 ; 21 Can. S. C. 588; Cragin v. De Pape, 159 Fed. 691, 86 C. C. A. 559. It is said that usually the question is for the jury ; Kehl v. Compress Co., 77 Miss. 762, 27 South. 641.
Evidence that the prosecution was to ob tain possession of goods, is proof of want of probable cause ; Schofield v. Ferrers, 47 Pa. 194, 86 Am. Dec. 532 ; so is evidence that the plaintiff began the prosecution for the pur pose of collecting a debt. See Neufeld v. Rodeminski, 144 Ill. 83, 32 N. E. 913 ; Se bastian v. Cheney, 86 Tex. 497, 25 S. W. 691. Probable cause depends upon the prosecu tor's belief of guilt or innocence ;- Miller v. Milligan, 48 Barb. (N. Y.) 30 ; see supra; rumors are not, but representations of oth ers are, a foundation for belief of guilt; Smith v. Ege, 52 Pa. 419. The prosecutor must believe that the accused was guilty at the time the prosecution was begun, and this is sufficient to prove probable cause ; Hant man v. Redden, 31 Pa. Super. Ct. 564.
The foreman of the grand jury, who has testified that the criminal prosecution was dismissed, cannot be asked why it was dis missed, because his testimony merely proves that the prosecution is at an end and has no bearing on the question of probable cause; and evidence that the prosecution was dis missed at the instance of the defendant with out the plaintiff's knowledge is irrelevant ei ther in bar of suit or in mitigation of dam ages ; Owens v. Owens, 81 Md. 518, 32 Atl. 247. Evidence of plaintiff's acquittal in a criminal case cannot be considered for the purpose of establishing the want of probable cause ; Bekkeland v. Lyons, 96 Tex. 255, 72 S. W. 56, 64 L. R. A. 474 ; but where the plaintiff's acquittal was the result of a com promise, it is admissible as evidence; Car roll v. R. Co., 134 Fed. 684.
When the defendant, in instituting the prosecution, went before a magistrate with his counsel, expecting to make the complaint in writing and that the warrant would be is sued in the usual manner, he is not liable for the act of the magistrate in directing the arrest of the defendant without a warrant ; Poupard v. Dumas, 105 Mich. 326, 63 N. W.
:301.
A warrant for the arrest of a person issued upon an affidavit which charged such person with being "guilty of lying and misrepre sentation" is void as a criminal prosecution, and it has been held that it cannot serve as the basis of an action for malicious prosecu tion ; Collum v. Turner, 102 Ga. 534, 27 S. E. 680.
Malice may be inferred from the zeal and activity of the prosecutor conducting the prosecution ; Straus v. Young, 36 Md. 246 ; but cannot be inferred merely from the do ing of an act without the ordinary prudence and discretion which persons of mature minds and sound judgment are presumed to have ; Jenkins v. Gilligan, 131 Ia. 176, 108 N. W. 237, 9 L. R. A. (N. S.) 1087.
The advice of counsel who has been fully informed of the facts is a complete justifica tion ; McClafferty v. Philp, 151 Pa. 86, 24 Atl. 1042 ; Holden v. Merritt, 92 Ia. 707, 61 N. W. 390 ; Cragin v. De Pape, 159 Fed. 691, 86 C. C. A. 559 ; otherwise, where it does not appear that a full disclosure of all the facts was made ; Cointement v. Cropper, 41 La. Ann. 303, 6 South. 127; Norrell v. Vogel, 39 Minn. 107, 38 N. W. 705 ; and where the defendant acts on the advice of a magistrate or one not ' learned in the law ; Straus v. Young, 36 Md. 246 ; Beihofer v. Loeffert, 159 Pa. 374, 28 Atl. 216 ; Rigden v. Jordan, 81 Ga. 668, 7 S. E. 857; but see Finn v. Frink, 84 Me. 261, 24 Atl. 851, 30 Am. St. Rep. 348 ; Holmes v. Horger, 96 Mich. 408, 56 N. W. 3. Where he acted on the advice of a public prosecuting officer, probable cause is estab lished if he shows a disclosure to such officer of all the facts within his knowledge, or which he had reasonable ground to believe, though there were exculpatory facts which he might have ascertained by diligent in quiry ; Hess v. Baking Co., 31 Or. 503, 49 Pac. 803. If fairly and fully stated to the public prosecutor, it is a complete defence; Van Meter v. Bass, 40 Colo. 78, 90 Pac. 637. See, generally, 40 Can. L. J. 276.
A waiver of preliminary examination by the defendant in a criminal prosecution rais es a presumption of probable cause ; Hess v. Baking Co., 31 Or. 503, 49 Pac. 803.