man in believing that the party is guilty of the offense."113 Another court said of this, "it is a deceptive appearance of guilt arising from facts and circumstances misapprehended or misunderstood so far as to produce belief." In summing up these definitions the Supreme Court of Pennsylvania in a later case say: "The substance of all these definitions is a reasonable ground for belief of guilt. It can make no difference what induces the belief, if it be reasonably sufficient. While mere floating rumors are not an adequate foundation for it, plainly representations of others may be, and especially representations made by those who have had opportunities for knowledge, or who have made an investigation. While on the one hand individuals are to be protected against rash, wanton and causeless prosecutions, the public interests demand that courts shall not frown upon honest efforts to bring the guilty to justice."115 And the same court in another case said: "Absolute certainty being unattainable in human affairs, we are compelled, in our most important concerns, to act on probabilities, and the law, which is derived from the nature and position of man, exacts no more from one who institutes criminal proceedings than that reasonable and prudential caution, which the safety of others demands, and where that exists, does not make him responsible for the event. He, therefore, who has probable cause, or, in other words, reasonable grounds for belief of guilt, stands acquitted of liability, whatever may have been his motives."116 The conclusion from the definitions is thus stated by the same court: "The belief must be that of a reasonable and prudent man, else the most baseless prosecutions would be safe. But some allowance will be made where the prosecutor is so personally injured by the offense that he could not likely draw his conclusions with the same impartiality and absence of prejudice that a person entirely disinterested would deliberately do. And all that can be required. of him is that he shall act as a reasonable and prudent man would be likely to act under like circumstances."117 As defined by a Maryland court: "Probable cause, according to the definition adopted by this court, is a reasonable ground of suspicion, supported by circum

113 Muns v. Dupont, 2 Wash. (U. S.) 463.

114 Seibert v. Price, 5 W. & S. (Pa.) 438; Travis v. Smith, 1 Pa. St. 234; Beach v. Wheeler, 30 Pa. St. 69.

115 Smith v. Ege, 52 Pa. St. 419, 422; Rich v. McInerny, 103 Ala. 345.

116 Travis v. Smith, 1 Pa. St. 234, 237.

117 McCarthy v. De Armit, 99 Pa. St. 63, 69; Cole v. Curtis, 16 Minn. 182; Fisher v. Forrester, 9 Cas. (Pa.) 501.

stances sufficiently strong in themselves to warrant a cautious man in believing that the accused was guilty. It is very true probable cause does not depend on the actual state of the case in point of fact as it may turn out upon legal investigation. It is made to depend upon knowledge of facts and circumstances which were sufficient to induce the defendant or any reasonable person to believe the truth of the accusation made against the plaintiff, and that such knowledge and belief existed in the mind of the defendant at the time the charge was made or being prosecuted, and were in good faith the reason and inducement for his putting the law in motion."118

§ 2118. Probable cause-Existence.-In many cases of false imprisonment probable cause or want of probable cause may be the controlling question, and especially on the question of damages. What facts and circumstances amount to probable cause is a question of law for the courts; but whether such facts and circumstances do exist in any particular case is a question of fact for the jury, and where there is any controversy as to such facts the case must be submitted to the jury with instructions from the court as to what facts will constitute probable cause. If all the facts and circumstances introduced in evidence are insufficient to establish probable cause, it is the duty of the court so to instruct the jury, and where the admitted facts amount to probable cause it is the duty of the court to direct a verdict for the defendant even though it appeared that he acted with malice.119 On the question of the existence of probable cause, it is said in a New York case: "Good faith, merely, is not sufficient to protect the defendant from liability. There must be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant the cautious man in the belief that the plaintiff was guilty of the crime with which

118 Boyd v. Cross, 35 Md. 194; Cooper v. Utterbach, 37 Md. 282; McWilliams v. Hoban, 42 Md. 56; Johns v. Marsh, 52 Md. 323; Bowen v. Tascoe, 84 Md. 497; Torsch v. Dell, 88 Md. 459.

119 Beach v. Wheeler, 30 Pa. St. 69; McCarthy v. De Armit, 99 Pa. St. 63; Hamilton v. Smith, 39 Mich. 222; Firestone v. Rice, 71 Mich.

377; Huntington v. Gault, 81 Mich. 144, 155; White v. McQueen, 96 Mich. 249; Filer v. Smith, 96 Mich. 347; Burns v. Erben, 40 N. Y. 463; Turner v. O'Brien, 5 Neb. 542; Ross v. Langworthy, 13 Neb. 492, 495; Diers v. Mallon, 46 Neb. 121; Boyd v. Cross, 35 Md. 194; Van Voorhes v. Leonard, 1 T. & C. (N. Y.) 148.

he was charged, to make out a probable cause as would be a defense.120 On the question of probable cause it will be sufficient where the proof shows that the defendant had reasonable grounds for belief at the time he made the arrest. And for the purpose of showing the existence of probable cause it is proper and permissible to prove statements made to the defendant by third persons.121 It is held that probable cause, or reasonable grounds of suspicion against the party arrested, will constitute no defense in an action for false imprisonment where the arrest or imprisonment is without authority of law.123 Where an arrest is made without a warrant, or on a void or irregular warrant, it seems to be the rule that it is proper to show probable cause, or the want of probable cause as affecting the question of malice and the right to recover punitive or exemplary damages. 123

§ 2119. Advice of counsel.-In this class of cases, and in kindred classes, it is sometimes proper to make proof that the party causing the arrest consulted with, and took the advice of, an attorney before instituting any proceedings. The question in cases of false imprisonment is not so much the effect of such advice as when it may be proved as a fact. The first rule is that in false imprisonment where it is shown that the arrest was illegal and unauthorized, and compensatory damages alone are claimed, no proof of the advice of counsel is proper or permissible.124 The second rule on this subject is that where malice, ill will or wanton oppression is made to appear, and exemplary or punitive damages are thereby claimed, it is proper to show that the defendant acted on the advice of counsel for the purpose of rebutting either the proof or legal presumption of malice. 125 But to have this effect the proof must show that the person

129 Hall v. Suydam, 6 Barb. (N. Y.) 83; Perry v. Sutley, 45 N. Y. St. 61, 18 N. Y. S. 633; Edger v. Burke, 96 Md. 715.

121 French v. Smith, 4 Vt. 363; Coleman v. Allen, 79 Ga. 637; Joiner v. Ocean St. Co., 86 Ga. 238.

122 Brown v. Chadsey, 39 Barb. (N. Y.) 253.

123 Botts v. Williams, 17 B. Mon. (Ky.) 687; Roth v. Smith, 54 Ill. 431, 432; Simpson v. McCaffrey, 13 Ohio 508; Day v. Woodworth, 13

How. (U. S.) 361; Beckwith v. Bean, 98 U. S. 266.

124 Wachsmuth v. Merchants' &c. Bank, 96 Mich. 426; Filer v. Smith, 96 Mich. 347; Frazier v. Turner, 76 Wis. 562; Block v. Myers, 33 La. Ann. 776.

125 Josselyn v. McAllister, 22 Mich. 300; Mortimer v. Thomas, 23 La. Ann. 165; Ogg v. Murdock, 25 W. Va. 139; Livingston v. Burroughs, 33 Mich. 511.

causing the arrest made a full, complete and fair statement of all the facts to an attorney who was learned in the law, and that he took and acted upon advice thus received.126 As stated by one court the rule is: "It is only where there exists probable cause and the arrest is effected under the advice of learned counsel, consulted in good faith and who are correctly informed of the facts, that parties can be exonerated from such damages.'

"127

§ 2120. Arrest under warrant-Justification. In actions for false imprisonment an answer setting up the fact that the arrest complained of was made by an officer under a valid and legal warrant and sustained by proof of these facts on the trial is universally held to be a sufficient justification and a complete defense to the action.128 The rule is also held to extend to the protection of the ministerial officer even where he has knowledge of facts which would render the process void for want of jurisdiction.129 It is held to be the rule. that a warrant issued on a valid complaint will protect the officer serving it and the complaining witness from liability for false imprisonment.130 A distinction seems to be made in this respect between courts of limited and courts of general jurisdiction. In courts of limited jurisdiction, acting without jurisdiction of the subject matter or the person, its decree or judgment is a nullity, and can justify no one. But in courts of general jurisdiction, the want of jurisdiction must appear upon the face of the process, or the officer will

126 Fourchy v. Bayly, 33 La. Ann. 778; Filer v. Smith, 96 Mich. 347; Page v. Miller, 13 Ohio C. C. 663, 671; Ogg v. Murdock, 25 W. Va. 139; Cooper v. Utterbach, 37 Md. 282; Clark v. Baldwin, 25 Kans. 120; see also, Ch. CXIII.

127 Block v. Meyers, 33 La. Ann. 776; Vinal v. Core, 18 W. Va. 1, 4.

123 Rhodes v. King, 52 Ala. 272; Leib v. Shelby Iron Co., 97 Ala. 626; Floyd v. State, 12 Ark. 43; Cassier v. Fales, 139 Mass. 461; Wheaton v. Beecher, 49 Mich. 348; Jennings v. Thompson, 54 N. J. L. 55; Marks v. Sullivan, 9 Utah 12; Messman v. Inlenfeldt, 89 Wis. 585.

129 Watson v. Watson,

Conn. 140;

Henke v. McCord, 55 Iowa 378; People v. Warren, 5 Hill (N. Y.) 440; Savacool v. Boughton, 5 Wend. (N. Y.) 170; Earl v. Camp, 16 Wend. (N. Y.) 562; Stewart v. Hawley, 21 Wend. (N. Y.) 552; Webber v. Gay, 24 Wend. (N. Y.) 485; Marks v. Sullivan, 9 Utah 12; Hammer v. Ballantyne, 13 Utah 324; Erskine v. Hohnbach, 14 Wall. (U. S.) 613.

130 Ward v. Cozzens, 3 Mich. 252; Johnson v. Maxon, 23 Mich. 128; Murphy v. Walters, 34 Mich. 180; Schultz v. Huebner, 108 Mich. 274; Marks v. Townsend, 97 N. Y. 590; Aldrick v. Meeks, 62 Vt. 89; Carleton v. Taylor, 50 Vt. 220.

be justified.131 But an arrest upon an illegal or void writ is no protection.132

§ 2121. Warrant fair on its face-Protection.-The rule of protection and justification extends to a process that is fair on its face. and issued by proper authority.133 What is meant by being fair on its face has been stated as follows: "That process may be said to be fair on its face which proceeds from a court or magistrate, or a body having authority by law to issue process of that nature, and which is legal in form and on its face contains nothing to notify or fairly apprise the author that it issued without authority. When such appears to be the process the officer is protected in making service and he is not concerned with any illegality that may exist back of it."13 In Indiana it was held that where a justice of the peace issued a warrant directed to any constable and delivered it to a person not a constable, such person could not justify under the warrant for the reason that the statute required the person to be particularly authorized by name to serve the writ.135 But if the officer makes an arrest under process void upon its face, he is personally liable in an action by the person wronged.136

11 Cutler v. Wadsworth, 7 Conn. Girr, 1 Gray (Mass.) 1; Blake's 6; Bowler v. Eldredge, 18 Conn. 1. Case, 106 Mass. 501; Cassier V. 132 Learnard v. Bailey, 111 Mass. Fales, 139 Mass. 461; Cooley Torts. 160; Buzzell v. Emerton, 161 Mass. 459; 2 Hilliard Torts, 184. 176.

133 Leib v. Shelby Iron Co., 97 Ala. 626; Trammell v. Russellville, 34 Ark. 105; Tryon v. Pingree, 112 Mich. 338; Kelsey v. Klabunde, 54 Neb. 760.

134 Trammell V. Russellville, 34 Ark. 105; Twitchell v. Shaw, 10 Cush. (Mass.) 46; Wilmarth v. Burt, 7 Metc. (Mass.) 257; Fisher v. Mc

135 Dietrichs v. Schaw, 43 Ind. 175; Hayden v. Souger, 56 Ind. 42; American Ex. Co. v. Patterson, 73 Ind. 430; Wells v. Jackson, 3 Munf. (Va.) 458.

136 McLendon v. State, 92 Tenn. 520; Wells v. Jackson, 3 Munf. (Va.) 458; Gelzenleuchter v. Niemeyer, 64 Wis. 316.