In this case I am much inclined to think that had I been sitting as a juror I should have deemed the proofs sufficient to justify all the agency which the defendant had in causing the arrest of the plaintiff. But that is no reason for disturbing the verdict of a jury who with all the witnesses in person before them, and upon some conflict of testimony, without a very great preponderance of evidence on either side, arrived at a different result. This disposes of most of the grounds urged in argument for a reversal.
The errors in law alleged are : First. That a nonsuit should have been ordered for the want of proof that the defendant caused the plaintiff’s arrest; and for the want of proof of express malice. It seems to me that there was no deficiency of proof that the arrest was procured by the defendant. On the contrary, however pure his motives were, it does not appear doubtful that he was the sole actor in setting the machinery of the law in motion, and made the complaint which after-wards proved groundless, and himself accompanied the officer *260in search of the stolen property to the defendant’s apartments. Prima facie, he caused the arrest and was put to his justification. As to want of proof of express malice, it must suffice to say that where there is an entire want of probable cause, malice may be inferred, and express malice need not be affirmatively shown. Whether probable cause was shown or not sufficiently to warrant the refusal to nonsuit, seems not to be a point raised on the motion for the nonsuit—it was however discussed under exception to the charge, and. will be presently shown.
Second. The second alleged error is that the judge refused to charge the jury that “ plaintiff must show express malice.” In this, as above stated, there was no error. If there was no probable cause, the defendant was liable without proof of any other malice than such as was inferrible from the entire absence of any probable cause of arrest. The jury had a right in such case to infer malice.
Third. The court are in the argument of the counsel assumed to have charged that “ the jury could not fully compensate the plaintiff if they found there was a want of probable cause.” I find nothing like this in the charge, and these words would not be very intelligible if they were contained in it. So far as I can discover it was in the defendant’s favor the error was committed, if it was an error; but it does not appear in the return, and by that we are governed.
Fourth. The same may be said of the fourth error alleged in the notice of appeal, that the court refused to charge that there was no evidence tending to show that the defendant had made any charge against the plaintiff. No request or refusal of this kind is to be found in the charge as returned to us.
Fifth. It is urged that “ the verdict is against the weight of the evidence, there being no evidence proving damage to have been sustained by the plaintiff.” In addition to what I have above remarked on the subject of the preponderance of the evidence, it is only necessary to add, further, that in the action on the case for a malicious prosecution, it is not necessary either to allege or prove special damage; and if the plaintiff *261was arrested without probable cause, and imprisoned from one o’clock of one day until three or four o’clock of the next, the law implied damage, and the amount was properly left to be assessed by the jury in view of all the circumstances of aggravation or mitigation.
It is argued by the counsel for the appellant, that the plaintiff failed to show affirmatively the want of probable cause, and also that the judge erred in charging the jury that they were to pass on the question of law and of fact, as to whether there was probable cause for the arrest.
Heither of these points is assigned as error in the notice of appeal, and in strictness the respondent has a right to require that the argument should be confined to those points, and yet they are very closely connected with the question whether proof of express malice was necessary, for if there was no sufficient evidence of want of probable cause, then certainly without proof of express malice the plaintiff could not recover. The rule of law insisted upon is, no doubt, settled in this state. (Buckley v. Smith, 2 Selden, 384; 2 Duer, 262.) The plaintiff in this action must show that he was arrested without probable cause, and what facts constitute probable cause is a question for the court; but we cannot say upon the evidence before us that the plaintiff did not affirmatively prove the want of probable cause. Even if it was not sufficiently shown when the motion for a nonsuit was made, the evidence subsequently given, rendered it proper to submit the proofs to the jury. There were, it was true, some circumstances pointing to the plaintiff as the guilty party, but they were very slight; they could, and no doubt would have been explained fully if any inquiry had been made; and as before remarked, although I might have found as a juror under all the circumstances that the defendant was justified, i. e. had probable cause of suspicion, the finding is not without evidence to support it.
Again, I do not understand by the return that the judge improperly left the question of law to the jury. It is true that he read from Mr. Greenleaf’s Evidence some passages which appear to tend to that result, but then he defined probable cause as *262matter of law, and instructed them in substance that in order to find a justification they must find such knowledge and circumstances of suspicion as would lead a discreet, cautious man, after such inquiry as the case could reasonably admit of, to believe that the party was guilty of the offence laid to his charge. This he fully explained and enlarged upon, and taking the whole charge together, we do not perceive that in its scope and bearing in this particular, it was. erroneous or could have misled the jury; and I may add that no exception was taken to the charge in that respect at the trial, nor was the attention of the judge called to the question whether his charge could be taken as a leaving of the question of law to the jury, so that he might explain himself more fully.
Although upon, an examination of the whole evidence, I feel . some reluctance, because the defendant suffers pretty severely for what was, no doubt, a mistake on his part, without any deliberate design to injure the plaintiff without cause, I am constrained to conclude that the judgment must be affirmed, and as we have no discretion on the subject of costs in such case, it must be affirmed with costs.
Judgment affirmed with costs.