The Circuit Court instructed the jury on behalf of the plaintiff that if they believed from the evidence that the prosecution of the plaintiff by the defendant was without probable cause, the jury might infer malice from such want of probable cause, and find for the plaintiff. The entire series of instructions fails to inform the jury what is probable cause, and they were left to decide -for themselves this question of law. It is for the jury to find the facts in any given case, but what constitutes probable cause is a question of law for the court. Wade v. Walden, 23 Ill. 425; Angelo v. Faul, 85 Ill. 106. We are not prepared to say that the solution of this question by the jury, was clearly right.
The fifth instruction for plaintiff was as follows:
“The jury are instructed that the prosecution of a person criminally with any other motive than that of bringing the person so prosecuted to justice, is malicious prosecution, and, if the jury find from the evidence that the defendant caused the plaintiff to be arrested because of her failure to return certain personal property, shown in evidence to have been part of the chattels mortgaged to the defendant, the title of which, without her knowledge, was in a third person, and which had been taken possession of by that third person, a.nd without the consent of plaintiff, and that the defendant secured her arrest because of her failure to return such property, the jury may infer malice and want of probable cause for such fact.”
“Malicious prosecution” is a phrase that has a well settled meaning. It denotes both malice and want of probable cause! To say that prosecuting a person criminally with any other motive than that of bringing the person so prosecuted to justice, is “malicious prosecution,” in effect tells the jury there was no probable cause. That such an impression must have been made on the jury, is more obvious from the hypothesis submitted to them in the remaining part of the instruction. The court assumes as a fact that the title to the property, for the removal of which the appellee was arrested, was in a third person without her knowledge. That was a material question of fact in determining whether there was probable cause and should have been passed on by the jury.
The deposition of Sutter, which was admitted in evidence over appellant’s objection, was not material to the issues and should have been excluded. Its tendency was to impress the jury with the belief that appellant had broken a contract he made with appellee in July preceding the arrest. Whether he had or not was of no consequence in this case, but we are inclined to think the evidence was prejudicial to appellant before the jury.
The judgment is reversed and the cause remanded.
Reversed and remanded.