JENKS, J.:

The action is for false imprisonment and malicious prosecution upon a criminal charge of grand larceny. At the close of the plaintiff's case the court dismissed his cause of action for false imprisonment, but finally submitted that for malicious prosecution to the jury, who found for the plaintiff.

The learned trial court charged the jury, "The basis of an action of this kind is malice," and after defining malice, it continued: "The law says that where a prosecution such as this has been initiated by a citizen and it terminates favorably to the person proceeded against, it may be presumed that the prosecuting citizen had not probable cause to believe that such defendant was guilty of the offense, and it will imply malice. So that the cause is ordinarily made out when there has been a termination of the criminal prosecution favorable to the defendant, the implication of malice arising as matter of law." The learned court afterwards explained and qualified its charge relative to probable cause, but although the charge as to malice was specifically presented to its attention, I cannot find that it receded from the instruction that the law implies malice from the want of probable cause. The defendant protected himself by his exceptions.

I think that the judgment must be reversed for this error, inasmuch as the jury virtually were instructed that if it found want of probable cause, malice followed on its heel by implication of law. The law does not imply malice from a want of probable cause. It may be inferred therefrom by the jury. ( Vanderbilt v. Mathis, 5 Duer, 304; Wilder v. Holden, 24 Pick. 8; Stewart v. Sonneborn, 98 U.S. 193; 2 Greenl. on Ev. [15th ed.] § 453, and authorities cited.) In Stewart v. Sonneborn ( supra) the court, per STRONG, J., say: "And the existence of malice is always a question exclusively for the jury. It must be found by them, or the action cannot be sustained. Hence it must always be submitted to them to find whether it existed. The court has no right to find it, nor to instruct the jury that they may return a verdict for the plaintiff without it. Even the inference of malice from the want of probable cause is one which the jury alone can draw. ( Wheeler v. Nesbit et al., 24 How. 545; Newell v. Downs, 8 Blackf. [Ind.] 523; Johnson v. Chambers, 10 Ired. [N.C.] L. 287; Voorhees v. Leonard, 1 N Y Sup. Ct. 148; Schofield v. Ferrers, 47 Pa. St. 194.)"

The judgment and order are reversed, and a new trial is granted, with costs to abide the event.

HOOKER, GAYNOR, RICH and MILLER, JJ., concurred.

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