l64 HARVARD LAW REVIEW. the jury is full of illustrations of the importance of this function. To leave to the jury, on the one hand, what is called a mixed question of law and fact, with the proper alternative instructions as to what the law is upon one or another supposition of fact, and, on the other hand, to have such a question remain with the court after the jury have reported upon the specific questions of fact, are two exceedingly different things. Within permissible Hmits there is generally some range of choice in matters of in- tendment and inference ; it makes a great difference who has the right to the choice. Moreover, since mistakes are possible, and even wilful error, he who wishes either of these two tribunals to judge may well prefer to have the mistake made by one rather than the other. The modern action for maHcious prosecution, represented for- merly by the action for conspiracy, has brought down to our own time a doctrine which is probably traceable to the practice of spreading the case fully upon the record, namely, that what is a reasonable and probable cause for a prosecution is a question for the court.^ That it is a question of fact is confessed,2and also that other Hke questions in similar cases are given to the jury. Reasons of policy led the old judges to permit the defendant to state his case fully upon the record, so as to secure to the court a greater control over the jury in handling the facts, and to keep what were accounted questions of law, i.e., questions which it was thought should be decided by the judges, out of the jury's hands. Gawdy, J., in such a case, in 1601-2, "doubted whether it were a plea, because it amounts to a non culpabilis. . . . But the other justices held that it was a good plea, per doubt del lay gents!' ^ Now that the mode of pleading has changed, the old rule still holds; being maintained, perhaps, chiefly by the old reasons of policy. Mr. Herbert Stephen's interesting little book on ** Malicious Prosecution " (Preface, and pp. 70-83) has an ingenious sugges- tion, viz., that the judgment in Abrath v. N. E. R'y Co.,* supporting, as it is thought to do, a practice of asking the jury certain specific questions, and instructing them to find reasonable and probable cause or not, according to their answers, — amounts in effect to 1 Panton v. Williams, 2 Q. B. 169; Stewart v. Sonnebom, 98 U. S. 187. 2 Lister v. Ferryman, L. R. 4 H. L. 521. 8 Pain V. Rochester, Cro. Eliz. 871 ; Chambers v. Taylor, ib. 900.
- II App. Cases, 247.
