This case is before us on a rehearing. By our former opinion, ante, p. 206, the judgment of the district court in favor of the defendants was affirmed, for the reason that the plaintiff’s action was one for damages for trespass in the nature of assault and battery committed by false imprisonment, and was barred by the statute of limitations when it was commenced. We think the rule of laAv announced in the opinion is sound, but an examination of the record convinces us that it does not correctly dispose of one of the questions presented thereby. The plaintiff’s amended petition contained two causes of action; one for malicious prosecution, and the other for a trespass in the nature of an assault and battery committed by false imprisonment. The record discloses that it was made to appear that plaintiff was designated in his petition, and his action was brought in the name of, “Munsey Hackley,” instead of “Munsey Hackler,” which is his time name. The defendant therefore objected to the plaintiff’s evidence, and the objection was sustained, to which an exception was noted. Plaintiff thereupon made the following request: “The plaintiff, Munsey Hackler, asks leave of court to change the words ‘Munsey Hackley’ to the *211words ‘Munsey Hackler’ by amendment, either by interlineation or by filing such other pleading as the court may order. To which the defendants, Miller and Reavis, objected, because the same is incompetent, improper, and becatise it changes the name of the plaintiff in this case, and because the statute of limitations under the name of Munsey Hackley has already run. By the court: I will allow the amendment, but not by interlineation, and I am not passing on the question of the statute of limitations raised by the objection. To which ruling the defendants except.” Thereupon the following agreement was made in open court: “Now, it is agreed between the parties that the evidence taken up to this time may stand as applicable to the amendment filed.” So it appears beyond question that the plaintiff asked and obtained the ruling of which he now complains, and to which he entered no objection. This sufficiently disposes of his assignment “that the court erred in requiring him to amend his petition,” and Avhich he alleges resulted in the interposition of the plea of the statute of limitations.” After the proceedings above mentioned were had, the defendants filed their ansAvers, Avhicli contained both a general denial and a plea of the statute of limitations. Plaintiff replied instanter, and the trial proceeded.' By filing his amended petition he acquiesced in the ruling of the court, and Avaived his exception thereto.
The plaintiff introduced a record of the proceedings in the justice court, which were the basis of the action for malicious prosecution, to Avhich defendants objected for the reason that it appeared that the plaintiff’s cause of action was barred by the statute of limitations: The court overruled the objection, and properly so in our opinion, because the first cause of action set forth in the plaintiffs petition AAras one 'for malicious prosecution; and, although the complaint filed before the justice of the peace failed to state facts sufficient to charge the plaintiff with the commission of a crime, and no judgment which could have been enforced was ever pronounced against him, yet, in *212order to terminate the prosecution or avoid the effects of the record in the justice court, he deemed, it necessary to appeal to the district court, and so the cause Avas pending and undisposed of until it Avas dismissed by the county attorney. The action having been commenced Avithin one year after such dismissal, his cause of action for malicious prosecution Avas not barred by the statute of limitations. Not so, hoAvever, as to the cause of action for assault and battery committed by the alleged false imprisonment. The court should have sustained the defendants’ objection to the introduction of any testimony in support of the plaintiff’s second cause of action, but of this the plaintiff is not in a position to complain. The court having overruled the objection predicated upon the statute of limitations, that matter was practically eliminated from the case, and the defendants were, in effect, deprived of that defense. It is true it remained' in the answers because it was not attacked by the plaintiff, ■ and, neither party having requested the court to instruct the jury on that point, no instruction was given in relation to it. So it would seem that the jury could not have considered it in arriving at their verdict.
After the ruling above mentioned the trial proceeded on the plaintiff’s theory of the case. The jury were instructed upon that theory, and yet they returned a verdict for the defendants. A careful reading of the bill of exceptions convinces us that the evidence fully sustains, the verdict.
Plaintiff contends that the judgment should be reversed for the reason that defendants could not justify their actions witjiout interposing a plea of that nature. Strictly speaking there is no such thing as a plea of justification in an action for malicious prosecution. It is true the defendant may justify in an action for false imprisonment, but that cause of action was barred by the statute of limitations when the suit Avas commenced. So it appears that no justification was attempted by the defendants in the sense in which that term is ordinarily used. The plaintiff *213introduced the record of the prosecution before the justice of the peace, and attempted to show that the defendants were actuated by malice, and that the prosecution was without probable cause. His testimony showed that at the time the proceeding in the justice court was commenced against him the defendant Reavis was the village marshal of the village of Battle Creek; that he, together with several other persons who were assisting him, was engaged in opening a ditch on what was claimed' to be one of the streets of said village; that the plaintiff obstructed him in that work by filling up the ditch as fast as it was opened by the defendant; that thereupon defendant told the plaintiff, and the others who were with him, that they should consider themselves under arrest; that after taking them up the street a little distance the defendant released them upon a promise not to further interfere with him in the performance of his duty; that after he returned to his work the plaintiff and one Church Boyer, contrary to their promise, again commenced to fill up the ditch; that defendant thereupon arrested them Avitliout a warrant, confined them in the village jail, and commenced the proceeding complained of in the justice court. The evidence of the defendant Reavis Avas submitted on the theory that he acted in the matter in good faith, without malice, and not without probable cause, and it is apparent that the jury took this view of the matter, and their verdict should not be disturbed. His denial put in issue the questions of malice and want of probable cause, and it was competent for him to introduce any evidence which tended to show the absence of malice on his part, and the existence of probable cause for the attempted prosecution. As to the defendant Miller, his defense was that he had nothing to do with the prosecution whatever; that he took no part in the transaction, and the jury must have so found. The verdict is not only fully sustained by the evidence, but it is difficult to see how they could have arrived at any other conclusion.
Complaint is made of instructions 10 and 11, given by *214the court on his own motion. Instruction No. 10 seems to be a correct statement of the law relating to malicious prosecution, and by instruction No. 11 the jury were told that “in law the want of probable cause does not of itself show malice, but the jury are at liberty to infer malice therefrom as a conclusion of fact, if from all the evidence in the case they deem such an inference justifiable.”
It is contended that the court erred in giving paragraph No. 12 of his instructions, because it conflicts with the instructions given at the plaintiff’s request. The instruction reads as follows: “Malice in law means an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling or spite, or a desire to injure -another. It is enough if defendant be actuated by improper or sinister motives.” This instruction seems to support the plaintiff’s theory of the case, and the conflict, if any, between it and those given at the request of the plaintiff is so slight that the jury could not have been confused or misled thereby. Again, by instruction No. 13 the jury were informed that, if the purpose of the arrest was anything else than to vindicate the law and punish crime, then they might infer that the defendant had a malicious motive in causing the same. In short, the instructions seem to substantially coincide with the plaintiff’s view of the law of the case.
Counsel complains of instructions numbered 1 to 3, inclusive, given at the request-of the defendants. As we have heretofore stated, it seems clear that the case was not decided by the jury on the theory of justification. In fact the record of the prosecution was not sufficient to constitute a justification, and the only thing left for the jury to determine was whether or not the prosecution was malicious and without probable cause. This being the case, the judgment should not be reversed because of the instructions complained of. In our view of the case, no other verdict could have been sustained than the one returned by the jury, and therefore the giving of these instructions, if error, was without prejudice.
*215Tlie plaintiff groups the remainder of his 37 assignments, and argues, them upon what we assume to be the theory that the evidence does not sustain the verdict. As we have before stated, the plaintiff tried his case to a jury upon his own theory, but failed to establish the fact that the prosecution complained of was malicious and without probable cause. The statute of limitations barred his right to recover for the trespass, assault and battery or false imprisonment, set forth in his second cause of action, and the verdict of the jury was therefore right and should not be disturbed.
For the foregoing reasons, our former judgment, as explained and modified herein, is adhered to.
Affirmed.