majority">By the Court :

It is not error for the trial Court to instruct the Jury in an action for malicious prosecution, that, if certain facts are proved, there was or was not probable cause for the prosecution alleged to have been malicious. On the contrary, such an instruction is eminently proper, and it is error to leave it to the Jury to determine whether the facts and circumstances proved do or do not establish the want of probable cause. (Bulkeley v. Ketelas, 2 Seld. 387 ; Grant v. Moore, 29 Cal. 644.) Where there is no dispute about the facts proved by plaintiff, and it clearly appears to the Judge that the facts fail to establish a want of probable cause, he may grant a nonsuit, or direct a verdict in favor of defendant.

In this action the burden is on the plaintiff to show affirmatively that there was a want of probable cause. (29 Cal. 655.) This being made out prima facie by plaintiff, it is for defendant to overcome the plaintiff’s case by disproving the facts sought to be established by him, or by proving other facts which establish probable cause. But the Court is not authorized, in its instructions, to assume the existence of any fact where there is a conflict in the evidence in respect to it, or its non-existence where there is evidence tending to prase it.

It is not necessary to point out specifically the facts which the evidence introduced by defendant tended to prove, and which, if proved to the satisfaction of the Jury, would have established probable cause. It is enough to say that, in our opinion, the Court below should have specified those facts in its instructions, leaving it to the Jury to determine whether they were established or not.

The order denying a new trial is reversed, and the cause remanded for a new trial.

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