Herrick, J.:

In reviewing a judgment of nonsuit that view of the evidence must be taken which is most favorable to the plaintiff.

The plaintiff, upon the trial for larceny, was declared not guilty of the charge upon which the defendants had caused his arrest. And this case turns upon the question as to whether the defendants had reasonable grounds to believe him -guilty of the charge they made against him.

“ The question of what constitutes probable cause does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but upon the prosecutor’s belief, based upon reasonable grounds, (4 Cush. 288.) The prosecutor may act upon appearances, and if the apparent facts are such that a discreet and prudent person would be led to the belief that the accused had committed a crime, he will not be liable in this action, although it may turn out that the accused was innocent. (53 N. Y. 17.) If there is an honest belief of guilt, and there exist reasonable grounds for such belief, the party will be justified. But however suspicious the appearances may be from existing circumstances* if the prosecutor lias knowledge of facts which will explain the suspicions appearances and exonerate the accused from a criminal charge, he cannot justify a prosecution by putting forth the prima facie circumstances, and excluding those within his knowledge *324which tend to prove innocence.” (Fangan v. Knox, 66 N. Y. 525, 528. See, also, Wass v. Stephens, 128. id. 123; Williard v. Holmes, 142 id. 492.)

Did then the defendants have reasonable grounds for believing that the plaintiff, in collecting the thirty cents, which they charged him-with stealing, intended to deprive or defraud the association of it, or to appropriate the same to his own use ? ...

They knew that 'at the time he made this collection hewas engaged in correspondence with them as to Ms. continuance with them, and that he claimed to be still in their employ; on the very day he collected the thirty cents he informed their counsel of the fact, and made a tender of . that" amount; with other moneys';, to the association = this tender was repeated by him thereafter to the superintendent of 'the company, and. again repeated, by his attorney.. ■ The usual element in such cases of a failure to report a collection and a withholding of the. money is entirely absent here. ' '

They refused to receive the money in question upon the "express ground that, at the time he made the collection, lie had been dis"charged by them and liad been forbidden to collect; they knew, however, that at the time of such refusal he had controverted the fact of liis discharge and was claiming to act for them ■ as their employee.

Assuming, however, that they were not satisfied as to the state of liis accounts, and did not know how much he had Collected, or whether he had accounted for all that he had collected,, still they did know,. from his own statement, of his collection of this particular item, knew that he was not withholding it from tliem or attempting to appropriate it to his own. use, and that he had not only reported the same, but had repeatedly, offered to pay the. same to them.

Under such circumstances, I do not see that they wére warranted in believing that there was any intent on bis'part to Steal iti" .And conceding that he had no longer any authority or legal right to collect it, and, indeed, was prohibited from doing so, yet the mere doing of the prohibited act, unless done with a- criminal intent, does not constitute a crime. (Hewitt v. Newburger, 141. N. Y. 538, 542.)

The motion for a nonsuit asked for by the defendant McArthur was upon the ground that he was acting, as ah attorney and conn*325selor at law, and conld not be held liable for malicious prosecution, unless there was proof that he knew there was no cause of action against the plaintiff, and unless also that he knew that his client, the Casualty Insurance Association, was acting from illegal and malicious motives.

It has been held that an attorney is personally liable for an improper arrest, when he is the direct agent in causing such arrest. (Deyo v. Van Valkenburgh, 5 Hill, 242; Sleight v. Leavenworth, 5 Duer, 122.)

In this case the defendant McArthur made himself a party to the prosecution and arrest of the plaintiff by personally swearing to the information upon which the warrant of arrest was issued. If an attorney desires the protection of his professional privileges he must act solely as an attorney and counselor, and not personally become a party to the litigation ; he cannot be party and counsel both; the position of counsel is swallowed up and absorbed by that of a party, and professional privilege will not serve as a shield in such a case.

And as to the facts upon which the charge against the plaintiff was made, he had personal knowledge of them, and knew that the plaintiff had made the collection under a claim of right, and, as an attorney presumed to be learned in the law, he must have known that a wrongful intent, an intent to .deprive the association of • the money and to appropriate the same to his own use, or the use of some person other than the true owner, was an essential element in the crime of larceny.

Even if he did not know the law, it would make ho difference; "probable cause may be founded on misinformation as to facts but not as to law.” (Hazzard v. Flury, 120 N. Y. 223, 227.)

Here he was not misinformed as to the facts, and they afforded no sufficient ground for his action.

“ Where there is no dispute about the facts, the question of the existence of probable cause, or, as generally stated, the absence or want of probable cause, is a question for the court and not for the jury.” (Anderson v. How, 116 N. Y. 336, 338.)

From the facts in this case it seeins to me that there was nothing upon which a reasonably discreet and prudent man could found a belief that the plaintiff, in collecting the thirty cents, intended to *326steal; and that, therefore, the trial court'erred in granting the motion for a nonsuit.

Without discussing the other questions argued before us, the judgment should, for the reasons herein. set forth, be reversed and a new trial granted, with costs to abide the event.

AH concurred. .

Judgment reversed and a new trial granted, costs to abide the event.