MERWIN, J.:

On the 20th of July, 1897, Vorce Davis, a mercantile firm at Sandy Hill, of which the plaintiff was a member, ordered of Oppenheim Bros., a mercantile firm at Albany, of which the defendant was a member, a quantity of goods of the value of thirty-eight dollars and seventy-five cents, on thirty days' time, the main item of the goods being 600 pounds of sugar. The goods were shipped from Albany to Sandy Hill, and taken from the station at that place by Vorce Davis on the twenty-sixth of July. On the twenty-eighth of July the store of Vorce Davis was closed, their goods being levied on by the sheriff on executions against them of about $3,700. On the thirtieth of July the defendant, having learned of the failure of Vorce Davis and of the levy on their goods, went to Sandy Hill, found the sheriff in possession, demanded his goods, and was informed that nearly all of them had been sold before the levy. He saw one of the firm of Vorce Davis and their attorney, who was also the attorney for the judgment creditors, and tried to get his goods or the pay for them, but could obtain neither. The judgments were in favor of relatives of Vorce and Davis and defendant was informed that they were confessed. The attorney testified that the judgments were not confessed, and if not, then the actions in which the judgments were recovered would apparently have been pending prior to the order for the goods. The defendant thereupon applied to a justice of the peace for a warrant against plaintiff and his partner for the crime of larceny in the second degree, in that they had obtained the goods from the defendant's firm with intent to cheat and defraud them, and to appropriate the same to their own use. The information and deposition made for this purpose by the defendant were prepared by an attorney employed by the defendant. A warrant was issued and delivered to a constable and the parties were brought or came before the justice. After some discussion the hearing was adjourned to the sixth of August, the defendants in the case being committed to the custody of the constable. Upon the adjourned day, before anything was done before the justice, a hearing was had before the special county judge upon habeas corpus proceedings and an order was made by that officer in terms discharging the said Vorce and Davis from custody and from further custody and restraint by virtue of the warrant of commitment issued by the justice. The ground of the discharge was that the papers upon which the warrant was founded were not sufficient to give the justice jurisdiction.

The writ of habeas corpus or the petition therefor was not offered in evidence. The order recites that a writ of habeas corpus was issued to the justice, and that the justice appeared by attorney, and that Davis and Vorce appeared in person and by attorney. The constable was not present and it does not appear that he was served with the writ. He testified upon the trial under review that the defendants in the proceeding before the justice "went away about their business where they pleased." About an hour and a half after the order of discharge was made and before noon, and without any further proceeding before the justice, the present suit was commenced and also one in favor of Davis, the other partner. It does not appear that any notice was given to the district attorney as required by section 2038 of the Code of Civil Procedure.

The trial court in effect held as matter of law that the criminal prosecution had terminated before the commencement of this suit. This ruling was based on the idea that the order of the special county judge operated to end the criminal proceeding. This, I think, was error. The writ did not run to the constable and he was not present or served. He in law had the custody of the defendants in the criminal proceeding, and the special county judge acquired no jurisdiction to pass upon such custody. The justice took no further action in the matter before the commencement of the suit, and the question must be determined by the facts as then existing. It does not appear to what time of day the proceeding before the justice had been adjourned.

The court in its charge to the jury said to them as follows: "If you find that this defendant made this accusation without any probable cause for believing it was true, then the plaintiff has made out his case, so far as the second branch, that for malicious prosecution, is concerned, because the other elements have been proven."

This eliminated the element of malice which it was necessary for the plaintiff to establish and which presented a question of fact for the jury to determine. The subject of malice was referred to in other portions of the charge, but nowhere was it distinctly stated that the want of probable cause and the existence of malice must both be established by the plaintiff before a cause of action is made out for malicious prosecution. No exception was taken to this part of the charge. Still, if a case is presented by the court to the jury upon an erroneous theory, the question may be reviewed in this court though no exception is taken. ( Whittaker v. D. H. Canal Co., 49 Hun, 400, 405; Roberts v. Tobias, 120 N.Y. 1, 5.)

The defendant, when he instituted the criminal proceeding, had reason to believe that Vorce Davis when they obtained the goods of his firm knew that their property would shortly be in the hands of the sheriff for the benefit of favored creditors. The speedy disposition of the goods obtained of the defendant's firm, the levy on the entire stock under the large judgments that were either confessed or had been impending for some period prior to the order for the goods, and the failure of Vorce Davis to give to defendant any satisfactory explanation upon his application to them before he commenced proceedings, were circumstances that would naturally lead a cautious man to doubt the honesty of the course of Vorce Davis, and it is not clear that the plaintiff has borne the burden of showing affirmatively the want of probable cause.

The defendant is, I think, entitled to a new trial.

All concurred.

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