Upon the first point, the court are of opinion, that according to a well settled series of authorities, a plaintiff cannot maintain an action for a malicious criminal prosecution by indictment, by showing that the prosecution has been determined by a nolle prosequi. This point has been so recently under the consideration of the court, in the case of Bacon v. Towne, 4 Cush. 217, that it seems sufficient to refer to that case, and the authorities there cited. It was said in the argument of the present case, that what was then said was an obiter dictum, and not a judicial determination of any question then in controversy. It is true, that it was not necessary to the decision of the defendant’s motion for a new trial, because the point had been decided in his favor on the trial, and excluded the plaintiff from recovering on two of his counts. But as the court had concluded to order a new trial on other points, and on *281such trial this point would present itself again in limine, it seemed to require the expression of an opinion by the court.
Were this a new and original question, to be decided upon principle, it might be doubted whether it would be just and wise to establish this as an inflexible rule of practice, because perhaps cases may be imagined, as where a party indicted has been long kept in court, always desirous and ready for a trial, and when a nolle prosequi is entered without his consent and against his remonstrance, where he ought not to be deprived of his right of showing that the suit was groundless and malicious. But the common law seems to have gone upon the ground, that before a party criminally prosecuted shall have a right to maintain an action and recover damages, against one who has acted as complainant in behalf of the commonwealth, and ostensibly for the public good, (an action certainly not to be favored,) he shall begin by offering a verdict in his favor, by a jury who have considered the cause on its merits. .But even if it were now open to consider any such modified rule, we should be of opinion that it would not apply, when a nolle prosequi and discontinuance is entered by consent, or byway of compromise, or where such exemption from further prosecution has been demanded as a right, or sought for as a favor, by the party prosecuted. In the present case, it appears by the record, that the plaintiff endeavored to obtain such exemption from trial by requiring the district attorney to enter a nolle prosequi.
Upon the other point also, the court are of opinion, that this action cannot be maintained. The main question in such suit is, whether there was probable cause for the prosecution complained of as malicious. Malice may be inferred from the fact that the complaint was groundless, but not the reverse. Want of probable cause is not to be inferred even from proof of express malice. And whether there was probable cause or not, is a question of law upon facts admitted or uncontested, or the truth of which are to be ascertained by the jury on the evidence submitted to them. Now in looking into the record in this case, we find, that upon a trial of the plaintiff on this indictment in the court of common pleas, the *282only trial by jury which has been had in the case, they found him guilty. Exceptions were taken by the defendant, to the directions and rulings of the court in matter of law; but upon their reconsideration in this court, they were overruled. It was at this stage of the cause, when the plaintiff stood liable to be sentenced for the offence with which he was charged in the indictment, that he applied to this court for a new trial, which was granted, to admit newly discovered evidence. But such evidence was never brought before a jury, and no new tidal was ever had. The court are therefore of opinion, that such a verdict of conviction upon instructions correct in matter in law, though afterwards set aside for another cause, must be regarded as proof of probable cause for the prosecution, and stand as a bar to the prosecution of this suit. Judgment for the defendmt.