mitted to jail, where he remained seventeen hours. He was afterwards examined before the justice and discharged, and thereupon brought this action against Porter for malicious prosecution. A jury trial was had, and, at the conclusion of the evidence, the defendant moved the court to instruct the jury to render a verdict for the defendant. The instruction was given, and a verdict returned in compliance with the instruction, upon which judgment was entered. Plaintiff moved for a new trial, and this appeal is from the judgment and the order denying said motion.

No complaint was made by plaintiff other than that the prosecution was malicious and without probable cause; and these questions, he contends, should have been submitted to the jury. Some questions arising upon the admission of evidence are also made.

The lands of the Porter Land and Water Corpany, above mentioned, are part of the Mexican grant known as the "Rancho Ex-Mission de San Fernando." This grant was confirmed by the United States, and a patent therefor was issued in 1873, and was duly recorded in the recorder's office in Los Angeles county in 1876. The south half of the grant (generally known as the "Van Nuys tract ") is owned by the "Los Angeles Farming and Milling Company." The lands of the Porter Land and Water Company are in the north half of the grant, and adjoin the Van Nuys tract. Other portions of the north half are held by individuals, among whom are Hubbard and Wright, who also own who also own a tract, the south boundary of which is the Van Nuys tract, and all held under titles derived by mesne conveyances from the patentee.

At and prior to the time of the arrest, the plaintiff was a member of an organization called the "San Fernando Protective Association," which then had a membership variously stated at from two hundred to four hundred men. This organization had a written constitution, and all the officers usually had by voluntary associations, including a treasurer to whom all moneys

were to be paid over by the secretary, and who disbursed the same on orders drawn by the association. The membership fee was fifteen dollars, upon the payment of which he was entitled to a membership certifi cate. The dues were five dollars per quarter. The object of the association, as stated in the preamble to the constitution, was "to have the title to certain portions of the lands of the San Fernando valley declared invalid and open to settlement and entry as public lands"; or, as stated by the plaintiff in his testimony, "I think the association was for the purpose of jumping the land." Each member was restricted to one hundred and sixty acres, but if he desired more, he was required to pay to the secretary twenty-five dollars for each additional one hundred and sixty acres he might select. The land referred to in the preamble above quoted, and in the testimony of the plaintiff, was the said Mexican grant so confirmed and patented by the United States.

Prior to the arrest of the plaintiff the association had employed a surveyor named Grove, who surveyed and subdivided the south half of the grant, and it, or a large portion of it, was allotted to members of the association in individual parcels of one hundred and sixty acres each; and on and prior to October 8th fifty or sixty houses or shanties had been erected and occupied by members of the association on that part of the grant.

The character of the entry upon and occupation of these lands is not doubtful. It was the unlawful and forcible entry by a large number of persons, organized and banded together for that purpose, upon the peaceable and actual possession of another whose title was evidenced by the patent of the United States, as was well known to the association.

Nor were these lands wild and unimproved, but for many years, certainly for fifteen to twenty years, had been regularly cultivated, and at the time of the entry the stubble of the preceding harvest was upon ground.

upon the

The purposes of the association, however, were not confined to the south half of the grant. Whether the occupation of the south half before any open attempt to enter upon the north half was because of that part hav ing been first surveyed, or whether it was for the better protection of the invaders by the proximity of their locations, it is not essential to inquire.

On October 7, 1891, Shaffer, a member of the associa tion, having made a selection of land on the north side from a map, went, with two other members, to find it, and on that occasion met Mr. Wright, one of the owners of the Hubbard & Wright tract, with whom they had some words. On the next day, Grove, the surveyor, with about fifteen men (among whom were Shaffer, with a load of lumber, and the plaintiff) came to the south line of section 26, part of which section belonged to Hubbard & Wright, and part of the Porter Land and Water Company, where they were met by Mr. Wilson, the superintendent of the Porter Land and Water Company, and Mr. Wright, who stopped them. Grove, who did the talking for the crowd, said they had come to settle on section 26; that they might as well let them go on there peaceably, that they were going on there anyhow, that he had three or four hundred men belonging to the league, and had plenty of money back of them. The talk continued until between sundown and dark, when the crowd turned back.

The next morning Grove and the plaintiff, with sev eral others, came again to the line. Plaintiff was head chainman. They had surveyed up to the line, and had gone about a half chain over, when Wilson, for the Porter Land and Water Company, forbade them going over the line, and pulled up a pin that had been stuck north of the line, and threw it back across the line. Plaintiff then went back across the line, and said: "I ain't a bit afraid of you; I'll give you a pointer on that." Grove said (but not in the presence of plaintiff) that if he had given the word the day before his men would have gone on the land too quick, and that they

(Wright & Wilson) would not have been anywheres; that his men were all armed; that they were coming again on Monday, and they might just as well let them go there and settle; that they considered it government land, and they calculated to go on it.

The defendant, Porter, consulted the district attorney, and for that purpose visited his office two or three times, and was advised by him that he had a legal remedy, and directed the assistant district attorney to prepare a form of complaint to be used by defendant to procure warrants for the arrest of plaintiff and others, and such form was prepared and was used to procure plaintiff's arrest. Grove, the surveyor, and several others, were included in the same complaint.

Other facts, so far as material to be noticed, will be referred to in the examination of the points made by appellant.

The errors relied upon by appellant are (as stated in his brief):

"The admission of testimony showing the acts and declarations (made without the hearing of appellant) by members of the protective association and others, of the intention of the association to take possession of respondent's land, no conspiracy having been shown."

The constitution of the association was put in evidence by the plaintiff, and he admitted that he was a member, and that the object of the association was to

jump the land." Grove, it is true, was not a member of the association, but was its employee, aiding and assisting it, and having full knowledge of its existence and purposes, and all the statements and acts, whether of Grove or of the members of the association, were made and done while they were engaged in the accomplishment of the common design. Appellant was only a member of the association, but was actively par ticipating in what was being done, and it was not necessary to the admissibility of the declarations of the others that he should have been present and within

hearing, even if he had been on trial upon the charge made against him.

2. It is further insisted that the court erred in "taking from the jury the questions of the credibility of witnesses, malice, motives, intention, and belief of respondent, and what facts the evidence established."

The general rule undoubtedly is that these questions should be submitted to the jury where the evidence is conflicting; but it is equally well settled that the court may within certain limits control the verdict, either by such an instruction as was here given, or by setting it aside and granting a new trial, either upon motion of the defeated party or upon its own motion.

To justify the court in directing a verdict it is not necessary that there should be no conflict in the evidence; but where the evidence is such that it is clearly insufficient to support a verdict in favor of the party against whom the direction is given, the instruction is proper, unless the circumstances of the case indicate that upon another trial the evidence may be materially different, in which case the facts should be submitted to the jury in order that a new trial may be had. But in either case the decision of the court below will be sustained, unless the appellate court can clearly see that its conclusion is wrong upon the facts.

"In an action for malicious prosecution the burden is on the plaintiff to show affirmatively that there was a want of probable cause." (Grant v. Moore, 29 Cal. 656; Emerson v. Skaggs, 52 Cal. 247.)

"Actions for malicious prosecution have never been favored in law, although they have always been readily upheld when the proper elements therefor have been presented. They are sustained, however, only when it is shown that the prosecution was in fact actuated by malice, and that the party instigating it had no reasouable ground for causing the prosecution." (Ball v. Rawles, 93 Cal. 228; 27 Am. St. Rep. 174.)

Malice is a question of fact; but what facts and circumstances amount to probable cause is a pure question