I think the objection taken, that there was no acquittal, is fatal. The justice did not decide, whether there were grounds for the complaint *or not. It is essential that the plaintiff prove he has been acquitted. The discharge must be in consequence of the acquittal. The action cannot be sustained unless the proceedings are at an end by reason of an acquittal. In this case the proceedings ended in consequence of a settlement. The justice heard a part of the testimony only, and formed no opinion on the subject. (2 T. R. 231; Doug. 215; 2 John. 203.)
The judge also decided that the defendant must show probable cause. I apprehend the law is otherwise. The want of probable cause is the gist of the action; and if so, the plaintiff must show it, to maintain his action. (2 T. R. 231; 10 John. 106; 1 Campb. 199.)[1]
*717The judge also erred in submitting to the jury the question whether there was probable cause. Whether the circumstances alleged are true, is a matter of fact; if true, whether they amount to probable cause is a question of law. (1 T. R. 545 ; Bull. N. P. 14.)
The verdict must he set aside, and a new trial granted, with costs to abide the event.
Mew trial granted.
Action will not lie for maliciously causing plaintiff to be arrested on a criminal charge before a magistrate, except the proceeding complained of be so far ended that nothing more can be done by the prosecutor without commencing anew. Clark v. Cleveland, 6 Hill, 344.
But to maintain the action it is not necessary to show an acquittal which bars a second prosecution; nor essential that any judicial decision on the merits should appear to have been made. Ib.
A person arrested in one county, by force of a warrant issued m another, and indorsed, upon a charge of having obtained money on false pretences, was released from custody on entering into recognizances in the county where arrested, to appear at the next general sessions of the county wherein the warrant issued; he did so appear, but the plaintiff did not, nor were any further steps taken under the warrant. Held, that the recognizance was a nullity; and, therefore, because the party was still subject to be arrested under the warrant, he could not maintain an action for malicious prosecution. Ib.
This action cannot be maintained without showing the absence of probable cause, as well as express malice. Fashay v. Ferguson, 2 Denio, 617.
Probable cause is a reasonable suspicion founded on circumstances, which would warrant a cautious man in the belief that the person he accused was guilty, and which were known to him at the time of commencing the prosecution. Ib *717In an action on the case of a malicous prosecution, in causing the plaintiff to be arrested on a charge for feloniously taking property, it is sufficient evidence of want of probable cause that the party making the complaint knew that the other party claimed, and had at least aprima facie right to the property. Weaver v. Townsend, 14 Wen. 192.
Where one prosecuted for felony before a justice, and swore to the felony on the examination; and the accused went into his defence, the scope of which was to show that the prosecutor was mistaken in his testimony; and the justice discharged the accused; held, that an action for malicious prosecution would not lie, the testimony of the prosecutor making but probable cause. Burlingame v. Burlingame, 8 Cow. 141.
An arrest and holding to bail are not indispensably neecssary to the maintenance of an action for a malicious prosecution. Pangburn v. Bull, 1 Wen. 345.
The naked fact of a party commencing two suits in a justice’s court, after being himself sued by the party whom he prosecutes, and neglecting to appear at the return of the summonses, is not such evidence of a want of probable as will sustain an action for a malicious prosecution. Gorton v. De Angelis, 6 Wen. 418.
Want of probable cause must be shown affirmatively, and will not be inferred from the mere neglect to prosecute a suit commenced. Ib. The acquittal of the party indicted is not prima feme evidence of the want of probable cause for complaint on the part of the accuser. Scott v. Simpson, 1 Sandf. 601. N. Y. Dig. Vol. 3, p. 485, et seq., tit. Malicious Prosecution.