Reasonable cause-a question for the judge. supersedeas had been granted to the plaintiff at his request and upon terms, as an act of grace on the part of the Crown. It was held, however, that the plea was bad. "All that the rule of law in cases of malicious prosecution requires is that the writ of extent should be traced to its close; and that is done by showing it discharged by the Court though upon arrangement and by consent. . . . Such a termination of the case negatives no fact essential to maintaining the action. . . . The plea is clearly bad. Consistently with all the facts stated in it the writ of extent may have been sued out by the defendant without any reasonable and probable cause" (a). So, it is enough if the proceeding has been abandoned without being brought to a formal end, though this cannot well happen in a criminal prosecution (b). 3. The question of reasonable and probable cause frequently and probable occasions no little embarrassment in the conduct of a trial, not so much from its own inherent difficulty as from the manner in which it presents itself: since, first of all, it involves the proof of a negative, and, secondly, in dealing with it the judge has to take on himself a duty of an exceptional nature. The plaintiff has, in the first place, to give some evidence tending to establish an absence of reasonable and probable cause operating on the mind of the defendant (c). To do this he must show the circumstances under which the prosecution was instituted. It is not enough to prove that the real facts established no criminal liability against him, unless it also appear that those facts were within the personal knowledge of the defendant. If they were not, it must be shown what was the information on which the defendant acted, which is sometimes done by putting in the depositions taken before the magistrate (d). Sometimes a case may be made out, whatever the state of facts may be, by means of evidence that the defendant did not believe in the justice of (a) Per Cur., Craig v. Hasell, (1843) 4 Q, B. p. 492. (b) Pierce v. Street, (1832) 3 B. & Ad. 397. (c) Abrath v. North Eastern Ry., (1886) 11 App. Cas. 247; Willans v. Taylor, (1829-31) 6 Bing. 183. As to what constitutes reasonable and probable cause for the institution of bankruptcy procedings, see Cox v. English, Scottish & Australian Bank, Ltd.. (1905) A. C. 168, P. C. (d) Walker v. South Eastern R. Co., (1870) L. R. 5 C. P. 640. his own prosecution, for if that is so, there is no reasonable and probable cause for him (a). It is, of course, for the judge to say whether there is evidence Province of jury. to go to the jury, and if there is, it is for the defendant then to elect whether he will attempt to impeach, contradict, or supplement it. When all the evidence is before the Court every disputed fact and every disputed inference of fact is for the jury to decide upon, with this exception, that the final inference as to the presence or absence of reasonable and probable cause is to be drawn by the judge alone. He must accordingly make the jury find the facts and draw the subordinate inferences specially, or he must leave the whole case to them with a hypothetical direction that if they take such and such a view of the case there is reasonable and probable cause, and otherwise not. However numerous and complicated the facts may be, one or other of these courses has to be adopted (b). law and fact. The inference of reasonable and probable cause has been some- Inferences of times called an inference of law, sometimes an inference of fact, sometimes a mixed inference. In truth, however, the distinction between the two classes of inferences is practical rather than theoretical. An inference which a jury say may be drawn from the premises is an inference of fact; an inference which the judge says must be drawn from the premises according to legal rules is an inference of law (c). The trial of an action is a long inductive process. The ultimate premises are the various statements made by the witnesses. From these statements it is inferred that a certain condition of things existed, and that certain things were said and done on the one side and the other, and so the case advances through a series of converging inferences until the final inference is reached that there should be a verdict for the defendant or the plaintiff, as the case may be. If at any stage of a trial certain matters are established, the proper effect of which (a) Willans v. Taylor, (1829-31) 6 Bing. 183; Broad v. Ham, (1839) 5 Bing. N. C. 722; Turner v. Ambler, (1847) 10 Q. B. 252. (b) Panton v. Williams, (1841) 2 Q. B. 169; Lister v. Perryman, (1870) L. R. 4 H. L. 521. An able summary of the factors necessary to constitute a primâ facie presumption of reasonable and (c) The respective provinces of judge Province of judge. cause. has been judicially considered and determined on previous occasions substantially similar, then it is for the judge to interpose and say what the inference is which authority compels him to draw. The peculiarity of the inference of reasonable and probable cause is that it has to be drawn by the judge without any precedent to guide him. The premises which he has to deal with are nearly always materially different from those which he may find recorded elsewhere. He cannot lay down an abstract proposition of law as his major, take the facts found by the jury as his minor, and thence deduce the necessary consequence: he simply has to continue by the light of experience and common sense the inductive process which has hitherto been carried on by the jury. A difficulty, therefore, sometimes arises as to the precise point at which his intervention ought to take place. The jury are to carry the induction up to the stage at which an immediate inference can be drawn as to the presence or absence of reasonable and probable But different minds may take different views as to what an immediate inference is, and some will proceed by one step to a conclusion at which others will only arrive at by degrees. Thus sometimes, if the witnesses are unimpeached in character and do not contradict one another, nothing at all may be left to the jury (a); at other times they may have to decide almost in terms the issue itself. In Quartz Hill Consolidated Gold Mining Co. v. Eyre (b), the question was whether the defendant had reasonable and probable cause for presenting a winding-up petition against the plaintiff company. This depended on whether he had reasonable ground at the time of the petition for supposing himself then a shareholder. He had held some shares which a fortnight previously he had directed his broker to sell, forwarding at the same time a transfer. He had been told by the broker that a sale would be impracticable, but the transfer had not been returned, and in fact the shares were sold. It was held that it was for the jury to say whether under such circumstances he might reasonably consider himself a shareholder, and reasonably therefore present the petition. In most cases probably a judge, who is anxious to leave as much as possible to the jury, can (a) Davis v. Hardy, (1827) 6 B. & C. (b) (1883) 11 Q. B. D. 674. succeed in suggesting a question for their consideration the answer to which leads so obviously and necessarily to the further inference that it is virtually decisive. reasonable of defendant. As has been already seen, reasonable and probable cause What is depends upon the information and belief of the defendant. "There and probable must be a reasonable cause-such as would operate on the mind cause. of a discreet man; there must be a probable cause-such as would operate on the mind of a reasonable man; at all events such as would operate on the mind of the party making the charge; otherwise there is no probable cause for him: I cannot say that the defendant acted on probable cause, if the state of facts was such as to have no effect on his mind" (a). And first as to the defendant's information. It is immaterial on this point Knowledge to consider what the real facts were unless they were in the knowledge of the defendant at the time of making the charge. Although if there be evidence of wilful and culpable neglect on the part of the defendant to make reasonable use of available information, as to the real state of affairs, such negligence will, apparently, afford some evidence of malice (b). In Delegal v. Highley (c), the defendant, in a declaration for malicious prosecution, pleaded specially facts which showed that the plaintiff was in truth guilty of the crime imputed, and it was held that the plea was bad for not alleging that the defendant was aware of those facts. "It is quite consistent with the allegations in this plea, that the charge was made upon some ground altogether independent of the existence of the facts stated in the plea; and that the defendant now endeavours to support the propriety of the charge, originally without cause, by facts and circumstances which have come to his knowledge for the first time since the charge was made" (d). On the other hand it would be obviously absurd to make a defendant liable because matters of which he was not aware put a different complexion upon facts which in themselves appeared a good cause of prosecution. A man is not bound before instituting proceedings to see that Evidence (a) Per Tindal, C.J., Broad v. Ham, (1839) 5 Bing. N. C. p. 725; see, too, Turner v. Ambler, (1847) 10 Q. B. 252. (b) Arbrath v. North Eastern R. Co., (1886) 11 App. Cas. 247. showing prima facie See. (c) (1837) 3 Bing. N. C. 950, case. Evidence not legally admissible. Mere suspicion. Knowledge of evidence furnishing an answer to the charge. he has such evidence as will be legally sufficient to secure a conviction. In Dawson v. Vansandau (a) the defendant had preferred a charge of conspiracy against the plaintiff on the evidence of an alleged accomplice, and it was held that he might well have reasonable and probable cause. "An accomplice or tainted witness may give evidence sufficient to make out a prima facie case and warrant the preferring of a criminal charge, though it might not be sufficient evidence upon which to convict” (b). Neither is it necessary that the defendant should act only on legal evidence and inquire into everything at first hand. It is sufficient if he proceeds on such information as a prudent and cautious man may reasonably accept in the ordinary affairs of life (c); and it is for the plaintiff to satisfy the jury that there was a want of proper care in testing that information (d). It is not, however, justifiable to commence a prosecution on mere suspicion. It is not a reasonable ground for a charge of forgery that the forged document resembles the handwriting of the party accused (e), nor is possession of stolen goods a long time after their abstraction a reasonable ground for a charge of larceny (f). It has been held that evidence of the plaintiff's bad character has no bearing on the issue of reasonable and probable cause (g). It may sometimes be contended that a prosecution is unreasonable, not on the ground that the prosecutor had no substantial information before him pointing to the guilt of the plaintiff, but because he was also aware of countervailing evidence which afforded a good answer to the charge. A prosecutor has no right to pick and choose among the evidence before him, and act only upon such portions of it as show that he has good cause for (a) (1863) 11 W. R. 516. (b) Per Cur., Dawson v. Vansandau, (1863) 11 W. R. at p. 518. (c) Lister v. Perryman, (1870) L. R. 4 H. L. 521; see Chatfield v. Comerford, (1866) 4 F. & F. 1008; Gibson v. Teasey, (1867) 15 L. T. N. S. 586. (d) Abrath v. North Eastern R. Co., (1883-6) 11 Q. B. D. 440; 11 App. Cas. 247. See also Brown v. Hawkes, (1891) 2 Q. B. 718. (e) Clements v. Ohrly, (1847) 2 C. & |