22 N.W. 300
Minn.
1885
Berry, J.

The plaintiff sues for the instituting and prosecuting of a civil action against him, and for the procuring of an attachment therein, and its levy upon his goods and chattels, all, as alleged, with malice and without probable cause. In an action of this kind the .affirmative is on the plaintiff to show want of probable cause. As respects a criminal prosecution, the following definition of “probable cause” is approved by many authorities, and in Cole v. Curtis, 16 Minn. 161, (182,) by this court, viz., “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged.” This is followed and applied in Casey v. Sevatson, 30 Minn. 516. Mutatis mutandis, this definition is applicable to civil prosecutions or actions. As to them, probable cause may be defined as such reasons, supported by facts and circumstances, as will warrant a cautious man in the belief that his action, and the means taken in prosecuting it, are legally just and proper. 2 Greenl. Ev. § 454; Stewart v. Sonneborn, 98 U. S. 187.

What facts, and whether particular facts, constitute probable cause is a question exclusively for the court. What facts exist in a particular case, where there is a dispute in reference to them, is a question *192exclusively for the jury. When the facts are in controversy, the subject of probable cause should be submitted to the jury, either for specific findings of the facts, or .with instructions from the court as to-what facts will constitute probable cause. These rules involve an apparent anomaly, and yet few, if any, rules of the common law rest upon a greater unanimity or strength of authority. Sutton v. Johnstone, 1 Term Rep. 493, (Lord Mansfield;) Panton v. Williams, 2 Q. B. 169; Lister v. Perryman, L. R. 4 H. L. 521; Stone v. Crocker, 24 Pick. 81; Kidder v. Parkhurst, 3 Allen, 393; Ash v. Marlow, 20 Ohio, 119; Stewart v. Sonneborn, 98 U. S. 187; Speck v. Judson, 63 Me. 207; Grant v. Moore, 29 Cal. 644; Thaule v. Krekeler, 81 N. Y. 428; Cole v. Curtis, 16 Minn. 161, (182.)

But while the question, what facts make out probable cause, is for the court, it is ordinarily, if not always, really a question of fact to be determined upon the facts and circumstances of the particular case; and hence it has been sometimes regretted that it was not, as in the law of Scotland, a question for a jury. Lister v. Perryman, supra. Considerations of public policy, in view of the importance of not discouraging public prosecutions, or the prosecution of private suits in good faith and with honest purposes, have, however, led to the establishment and maintenance of the rule. Cole v. Curtis, Stewart v. Sonneborn, and Stone v. Crocker, supra.

For the purpose of reviewing the action of trial courts in determining the question of probable cause, the appellate courts have treated it as a question of law, because determined by the court, and have therefore considered and examined the evidence bearing upon it as freely as if the question was before them originally. See cases supra.

At the close of the plaintiff’s case upon the trial below, defendant moved for a dismissal, upon the ground that the evidence did not make out a cause of action; meaning, as we understand it, that it did not show want of probable cause for the acts and proceedings complained of. The motion was granted, and in our judgment erroneously.

With' reference to the foregoing observations upon the subject of “probable cause,” we are of opinion that the evidence in this case, standing uncontroverted and unexplained, was sufficient to make out *193at least a prima facie case of want of probable cause for the proceedings complained of. As there is to be a new trial, we announce this conclusion without any detailed consideration, in this opinion, of the evidence and its tendency. This is in accordance with our usual practice, and with what we deem to be ordinarily the wisest course to be pursued in such eases. We are loath to disturb the action of a trial court in assuming the responsibility of withholding a case from the jury, but in this instance, after careful consideration of the evidence, and after making due allowance for any advantage possessed by a trial court for observing the bearing of the witnesses upon the stand, and whatever else may go to make up the atmosphere of the trial, we are clearly of opinion that the action should not have been dismissed, but the trial should have proceeded.

This disposes of the most.important questions in the ease; but, with reference to another trial, it will be expedient to consider one or two other matters presented by counsel. And, first, unless a civil prosecution be malicious, and without probable cause, the remedy of the party claiming to have been injured by it is confined to his right to costs, and to an action upon any attachment or other indemnity bond given in the proceedings. Preston v. Cooper, 1 Dill. 589; Stewart v. Sonneborn, supra; Closson v. Staples, 42 Vt. 209. Second. There are two reasons why, in this action, the plaintiff should not recover as for a conversion of his goods: (1) The action is for a prosecution and attachment, malicious and without probable cause. An action in the nature of common-law trover, for a conversion of the goods by the levy of the attachment, is not within the issues in the ease. The evil consequences of being permitted to try an action of this kind upon the theory that if the evidence, admissible and introduced for the purpose of making out a malicious prosecution and attachment, is not sufficient for that purpose, it may make out a conversion, will be obvious to the practitioner upon a moment’s reflection. See Walton v. Perkins, 28 Minn. 413. (2) By the final determination of the action (in which the attachment issued) in favor of the defendant therein, — the present plaintiff, — the attachment was dissolved, and the goods, which are, presumably, in the custody of the attaching officer, were subject to plaintiff’s demand upon him, *194without which no conversion would be implied from the omission to deliver the goods to the plaintiff, even against the officer, if he were a defendant here, as he is not.

Order reversed, and a new trial awarded.