— This case comes up on the ruling sustaining .the demurrer to the defendant’s separate defense and misdirection of the j'ury at the trial. The demurrer was rightly sustained. ' It was no defense to the action that the defendant laid the facts within his knowledge before a justice of the peace, and acted on) his advice in making- the arrests. (Olmstead v. Partridge, 16 Gray, 381; Brobst v. Ruff, 100 Pa. St. 91; S. C. 45 Am. Rep. 358.) The instructions objected to were drawn by the plaintiff’s counsel. That part of the first instruction, “if the defendant ' acted rashly, wantonly, or wickedly, the presumption of malice is conclusive,” is objectionable. The statement is, indeed, supported by a dictum in Travis v. Smith, 1 Pa. St. 234. But in malicious prosecution the court cannot go further than to give a , definition of malice; it is never an inference of law. In that - action malice must be alleged and proved as- an independent fact. (Denman, C. J., in Mitchell v. Jenkins, 5 Barn. & Adol. 593.) The jury are the exclusive judges of the malice of the defendant. (Washington, J., in Munns v. Dupont, 3 Wash. C. C. 37; Stewart v. Sonneborn, 98 U. S. 193.) “Whether malice existed or not is a matter of fact for the jury to decide, taking into consideration all the circumstances of the case. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to show it probable or not probable are true and existed is a matter of fact; but whether supposing them true, they amqunt tq a probable cause is a question of law to be decided by the court.” (Duvall, J., in Murray v. McLane, 1 Brun. Col. Cas. 405; S. C. 5 Hall L. J. 515.) Taunton, J., in Mitchell v. Jenkins, above, refers to the distinction touching malice between ordinary actions of tort and actions of malicious prosecution. (And see Holmes Com, Law, 142.)
The jury, then, must find that the defendant was in fact actuated by a wrong motive. The instruction, on the contrary, makes.malice a conclusion of law, placing it in this respect on j the same footing with probable cause. The judge must say to *234the jury, “I tell you, if you think so and so, there is a want of reasonable and probable cause.” (Coleridge, J., in Haddrick v. Heslop, 12 Q,. B. 275.) That is, the jury must pass on the credibility of the testimony, not on its effect. But when the judge comes to malice, he must tell the jury malice is so and so, and leave it to them to draw their conclusions from the evidence. The jury are told substantially, by the third instruction, to find the defendant guilty should they find there was a want of probable cause, omitting the element of malice. In this there was a double error, as indicated above. “It is an action not to be favored, and ought not to be maintained without rank and express malice and iniquity.” (Holt, O. J., in Savill v. Roberts, 12 Mod. 211.)
Loed, J., concurred.