was a man's motive is clearly a question of fact, and it is but a step from requiring the jury to find what his motive was to requiring them to find whether it was reasonable. The doctrine that the question is one of motive is well illustrated in Delegal v. Highley, 3 B. N. C. 950 (1837). The first count of the declaration was for malicious prosecution, and the plea to it, which was a plea in justification, was argued on demurrer. The judgement of the Court, delivered by Tindal, C. J., describes it as setting out "the several facts and circumstances attending the transaction out of which the charge before the Lord Mayor arose. To this plea there is a special demurrer, alleging, as one ground of objection, that it contains no allegation that the defendant at the time he caused the charge to be made, had been informed of, or knew or in any manner acted on those facts or circumstances. [The plea alleged as follows:-"Wherefore the defendant had reasonable and probable cause to believe and did believe," but did not say that he believed at the time of prosecuting.] The gravamen of the declaration is, that the defendant laid the accusation without any reasonable and probable cause operating on his mind at the time," and "the defendant [the report says plaintiff] would have failed at the trial if he had not proved that the facts of the case had been communicated to him, or at all events, so much of the facts as would have been sufficient to induce [63] a belief of the plaintiff's guilt on the mind of any reasonable man, previous to the charge being laid before

the magistrate."

*

(1841) was an action for Lord Denman, who had a

Panton v. Williams, 2 Q. B. 169 maliciously prosecuting for forgery. strong disposition, in cases of this character, to leave as much as possible to the jury, tried the case, and is said by Tindal, C. J., to have "directed the jury that in a case of that sort it was not a question of law but a question of fact whether there was reasonable and probable cause." This was held to have been a misdirection, and so no doubt it would be now, if it was put in that uncompromising fashion. Tindal, C. J., giving judgment in the depends upon whether there was reasonable ground for prosecuting and not upon the prosecutors knowledge or belief: Mowry . Miller, 3 Leigh. 561; Hickman v. Griffin, 6 Mo. 37; Adams v. Lesher, 3 Blackford, 241; Bell v. Pearcy, 5 Ired. 83; Wills v. Noyes, 12 Pick. 324; Faris v. Starke, 3 B. Mon. 4. Others have held that it depended merely on belief and not on the grounds of belief: Chandler v. McPherson, 11 Ala. 916.

Exchequer Chamber, laid it down that even where the case is complicated the judge ought to tell the jury what facts, if proved, amount to reasonable cause, and what do not.

"3.

In Michell v. Williams, the plaintiff had been the defendant's tenant, with sporting rights. With the permission or at the instigation of the defendant's agent the plaintiff cut the dam of a fish-pond and took the fish. Disputes afterwards arising, the agent prosecuted the plaintiff under 7 & 8 Geo. 4, c. 30, for doing so. Wightman, J., asked the jury the three questions which follow:-"1. Whether Durance [the agent] acted under the authority of the defendant when he laid the information and prosecuted the proceedings against the plaintiff:"-Answer, yes. "2. Whether Durance gave permission to fish the pond in question by cutting down the bank:"-Answer, yes. Whether the defendant, in taking these proceedings against the plaintiff was actuated by evil feelings towards [*64] him, and not by a bonâ fide and genuine belief that the plaintiff had committed the offence imputed to him:"-Answer, yes. Mr. Justice Wightman, thereupon, held that there was a want of reasonable cause, and required the jury to assess the damages. In support of a rule nisi for a new trial, it was argued that the judge ought also to have asked the jury whether the defendant knew that Durance had given the plaintiff leave to break the dam, but the Court of Exchequer held that the plaintiff had, upon the evidence and the answers of the jury, established a want of reasonable cause, and that it was, therefore, unnecessary to ask the question. This case appears to me to have been in strict accordance with the old rule, the jury finding nothing about the defendant's beliefs or state of mind, except that he was malicious, which would not have been enough if the judge had not found as a fact that there was a want of reasonable cause.

The application of this authority to the leading case of Turner v. Ambler, 10 Q. B. 252 (1847), of which an account is given in the preceding chapter (b), led to a statement of the law not very easy to understand. Lord Denman, who tried the case, found that there was no want of reasonable cause, although the jury had found that there was malice, and that after he had "left it to the jury to say whether the defendant had acted maliciously, and, with

(b) See ante, p. 47.

reference to that question, whether the evidence showed, [65] in point of fact, such a* want of probable cause for the prosecution as amounted to proof that the defendant had instituted it from motives of malice." Judgment was ultimately entered for the defendant on the ground that the judge's finding that there was no want of reasonable cause, was right.

In Haddrick v. Heslop, 12 Q. B. 267 (1848), for the first time, as far as I know, the jury were expressly made the judges of the "reasonableness" of the defendant's conduct. Wightman, J., asked the jury whether the defendant believed that there was reasonable ground for indicting the plaintiff, and the jury found that he did not. They were also asked "whether he had indicted from malice," and answered "that they thought the word 'malice' was strong, but that they thought the defendant had indicted from an improper motive." Upon these findings the verdict was entered for the plaintiff, and a rule for a new trial for misdirection was refused. Lord Denman said, "It would be quite outrageous if, where a party is proved to believe that a charge is unfounded, it were to be held that he could have reasonable and probable cause."

In Douglas v. Corbet, 6 E. & B. 511 (1856), Bramwell, B., asked the jury whether they thought the defendant had reasonable and probable cause for his belief that the plaintiff stole a sheep, for the larceny of which he indicted him. The jury found that he had, and the judge then held that under the circumstances there was reasonable cause for the prosecution. There was some

evidence of malice, to the effect that the defendant prose[66] cuted in order to put a stop to an action in * the County Court. The Court of Queen's Bench (Coleridge and Crompton, JJ.; Erle, J., diss.) discharged a rule for a new trial. In Lister v. Perryman (c), L. R. 4 H. L. 521; L. J. Ex. 177 (1870), the following observations on the respective provinces of judge and jury were made in the judgments delivered in the House of Lords. It will be remembered that the action was one for false imprisonment, but the question of reasonable cause is subject to the same rules in that action as in actions for malicious prosecution.

"THE LORD CHANCELLOR (Lord Hatherley): . . . . I certainly do concur in one of the observations made by the learned counsel

(c) Vide ante, p. 52.

during the course of his argument-that it is, on the whole, somewhat to be regretted that this question of reasonable and probable cause should not be left to the jury, who heard the evidence and saw the demeanour of the witnesses, and who would, therefore, be in a good position to judge what degree of trust it was reasonable and proper that the person to whom this information was given should repose in his informant. I should have been glad if the duty of deciding this question had not been left to those who have not the same intimate knowledge of the matter which was possessed by persons who heard the whole cause, and were, therefore, in a better position for estimating the amount of credit due, both to the original prosecutor and to the persons who may have been his informants.

"LORD CHELMSFORD: (d)-My Lords, there can be [67] no doubt, since the case of Panton v. Williams (e), in which this question was solemnly decided in the Exchequer Chamber, that what is reasonable and probable cause in an action for malicious prosecution, or for false imprisonment, is to be determined by the judge. In what other sense it is properly called a question of law I am at a loss to understand. No definite rule can be laid down for the exercise of the judge's judgment. Each case must depend upon its own circumstances, and the result is a conclusion drawn by each judge for himself, whether the facts found by the jury, in his opinion, constitute a defence to the action. The verdict in cases of this description, therefore, is only nominally the verdict of a jury.

6

"LORD WESTBURY: (ƒ)—My Lords, I have very few words to add. The existence of reasonable and probable cause' is an inference of fact. It must be derived from all the circumstances of the case. I regret, therefore, to find the law to be that it is an inference to be drawn by the judge, and not by the jury. I think it ought to be the other way.

"LORD COLONSAY: (f)-My Lords, I have listened to this case with much interest, finding myself placed in what is to me the somewhat novel position of having to deal with the question of want of reasonable and probable cause as a question of law for the Court, and not a question of fact for the jury. I have fre

(d) At p. 535.

(e) 2 Q. B. 169. (f) At p. 538.

[68] quently *had to deal with cases of this kind in the other end of the island; but there this question of want of reasonable and probable cause is treated as an inference in fact to be deduced by the jury from the whole circumstances of the case, in like manner as the question of malice is left to the jury." This is the last case in which it is laid down without reserve that the question, whether the defendant's behaviour was reasonable," must be decided by the judge. The two following cases show how judicial ingenuity has devised a method whereby the wishes unanimously expressed in the judgments of the House of Lords in Lister v. Perryman have been practically gratified.

The case of Hicks v. Faulkner, 8 Q. B. D. 167, and 51 L. J. Q. B. 268 (1882), has been treated of at some length in the preceding chapter. The question of reasonable cause is divided, in the judgment delivered in the Divisional Court by Hawkins, J., into four parts, namely:

1. An honest belief of the accuser in the guilt of the accused; 2. Such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion;

3. Such secondly-mentioned belief must be based upon reasonable grounds-that is, such grounds as would lead any fairly cautious man in the defendant's situation so to believe;

[*69] *4. The circumstances so believed and relied on by the accuser must be such as to amount to reasonable ground for belief in the guilt of the accused.

The judgment proceeds: "The belief of the accuser in the guilt of the accused [No. 1], his belief in the existence of the facts on which he acted [No. 2], and the reasonableness of such last mentioned belief [No. 3], are questions of fact for the jury, whose findings upon them become so many facts, from which the judge is to draw the inference, and determine whether they do or do not amount to reasonable and probable cause. This, also, is an inference of fact, not of law, as is sometimes erroneously supposed; and the judge is to draw it from all the circumstances of the case" Lister v. Perryman, per Lords Chelmsford and Westbury.