It is not made to appear from this record whether the proposed amendment to count 3 made an entirely new cause of action, or merely described differently the same cause of acfion.
A prosecution instituted by affidavit before “K,.” clerk of the county court, is prima facie a different prosecution from one instituted by an affidavit made before “O.,” a justice of the peace, though the affiant and the crime be the same in both cases. This being-true, we cannot say that the court erred in refusing to allow the proposed amendment to count 3. If it has been shown that the original and amended counts related to the same transaction and prosecution, it should have been allowed, under our liberal system; and under the statute, as last amended, the question of the identity of the causes of action relied on in the origin al and amended counts may be submitted to the jury. But, so far as this record shows, the prosecutions were differ*240ent; and the amendment, therefore, was not allowable.
In trials for malicious prosecution, under the general issue, the burden of proof is upon the plaintiff to establish, by a preponderance of the evidence, three propositions: First, that the defendant has prosecuted complainant, or caused him to be prosecuted, as alleged in his complaint, and that the prosecution is ended; second, that the prosecution on the part of the defendant was both malicious and without probable cause; third, that in consequence of the prosecution complainant was damaged. — 2 Greenl. Ev. 449, 450. In this case it was not disputed that the prosecution was instituted by the defendant, and that it was ended by the verdict of a jury, acquitting plaintiff, on a trial in a court of competent jurisdiction. So the questions in dispute were malice, probable cause on the part of the defendant in instituting the prosecution, and the damages, if any were sustained.
Malice may be inferred from the want of probable cause, if there are no circumstances to rebut the inference. It may also be inferred from acts and conduct of defendant if the defendant’s conduct will admit of no other reasonable construction. Mr. Greenleaf said: “The want of probable cause is a material averment; and, although negative in its form and character, it must be proven by the plaintiff by some affirmative evidence.” There are some exceptions to the rule, not necessary here to be mentioned.
Shaw, C. J., has said that “probable cause,” as the term is employed in actions for malicious prosecution, is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. — Bacon v. Towne, 4 Bush. (Mass.) 238.
*241It lias been uniformly held that the plaintiff’s innocence of the charge on which the prosecution was brought, and any facts which tend to show such innocence, are admissible only as tending to prove the defendant’s lack of probable cause in instituting the prosecution; and therefore it must be shown that the defendant knew of such innocence, or of such facts, when he brought the prosecution. The plaintiff’s innocence does not make the prosecution malicious, nor prevent the defendant from having probable cause to believe him guilty. Therefore, evidence of innocence, of which the defendant had no knowledge, and of which he ivas not chargeable with notice, such as facts occurring after the prosecution is begun, are not admissible for the purpose of showing malice or want of probable cause, though it may be to show that the prosecution was terminated, • such as the trial and its result.
For the same reason, acts of the plaintiff occurring after the prosecution is begun, of which the defendant could have had no knowledge or notice, are not admissible to rebut malice or show probable cause at or before the prosecution was begun.
These two rules are well illustrated in the case of Killobrew v. Carlisle, 97 Ala. 535, 12 South. 167; and Josselyn v. McAllister, 25 Mich. 45. In the first case it is said: “The defendants had instituted a prosecution against plaintiff for the purpose of having him bound over to keep the peace. A part of the evidence relied on as going to show that he was about to commit breaches of the peace upon the persons of the defendants were to the effect that while defendants were in possession of the land, and engaged in gathering the crop therefrom, plaintiff went on the land, where the crop was growing, with his gun, and said that if the defendant, who had harvested a part of the crop, at*242tempted to gather what remained of it he (the plaintiff) would shoot him. The fact of plaintiff’s being there with his gun, taken in connection with the information received by defendant of the alleged threat to use it, tended to show, of course, that defendants had probable cause for believing that plaintiff intended to commit a breach of the peace. If it was plaintiff’s habit To carry his gun with him to the field and going to his plantation to work,’ and this habit was Imown to the defendants, evidence of it was admissible as tending to show that the presence of the weapon on the particular occasion was due to this custom of plaintiff, and not to any purpose on his part to use it in the commission of a breach of the peace; but there is no evidence that defendants had any knowledge of this habit, and we are unable to see that the fact of its existence, if wholly unknown to them, could have exerted any influence in determining the question of defendants’ malice, or whether they had probable cause for believing plaintiff intended to commit violence upon their persons. Yet it is very probable that it was accorded an influence by the jury. The testimony of this habit, without any evidence that defendants knew of it, was therefore improperly admitted, and must operate a reversal of the judgment.”
In the latter case, the rule is well stated in the headnote, which the opinion supports, as follows: “Malice in making an affidavit for an arrest cannot be disproved by transactions of the party arrested, of which the person making the affidavit had no knowledge or information when he made it. Neither can it be disproved by showing additional facts having no bearing on the facts set forth in the affidavit as grounds of arrest, nor by matters ex post facto.”
For this reason, we think the trial court erred in allowing the defendant to prove, over the objections of *243the plaintiff, that the latter broke jail, escaped, and was thereafter re-arrested. This, of course, was all ex post facto, as to the institution of the prosecution, 'and could not have influenced the defendant in instituing the prosecution. It neither showed nor tended to show malice, or probable cause, or lack of either. It ivas wholly inadmissible on this trial, and its only effect could be to prejudice the jury against the case of the plaintiff. Such evidence would have been admissible, of course, on a criminal trial, but not in this action, which was to determine whether the prosecution was instituted with malice, and without probable cause. — Gulsby v. L. & N. R. Co., 167 Ala. 131, 52 South. 392.
As to the court’s declining to admit evidence touching the condition of plaintiff’s wife at the time he was in jail, as an element of damages, it is sufficient to say that such damages, if recoverable, are special, and must therefore be specifically claimed to warrant recovery; and there was in the complaint in this case no claim as to such damages.
The fourth and fifth charges requested were properly refused for the same reason; each embraced items of special damáges, not specifically claimed in the complaint.
“The rule of law is that special damages must be particularly specified in the statement of the claim, declaration, or complaint, or the plaintiff will not be permitted to give evidence of such damages at the trial.
“The law stated by Greenleaf: Where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed special damages, which the law does not imply, and therefore, in order to prevent a surprise upon the defendant, they must be particularly specified in the declaration.
*244“The law stated by Chitty: Whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then, in order to prevent the surprise of the defendant which might otherwise ensue on the trial, the plaintiff must, in general, state the particular damage which he has sustained, or he will not be permitted to give evidence of it. Thus, in an action of trespass and false imprisonment, when the plaintiff offered to give in evidence that during his imprisonment he was stinted in his allowance of food, he was not permitted to do so, because the fact was not, as it should have been, stated in his declarations.” — Newell, Mal. Pros. §§ 11, 12, pp. 410, 411.
The seventh assignment of error is not good. The requested charge, though asserting a correct principle' of law, in effect gave undue prominence to a certain part of the evidence.
Charge 3 asserted a correct proposition of law as to shifting the burden of proof from plaintiff, and, there being evidence to support it, its refusal was error.
While there is some conflict in the decisions as to the correctness of the proposition asserted in this charge, our court has adopted the line which supports its correctness. In .the cause of Lunsford v. Dietrich, 93 Ala. 565-570, 9 South. 308, 310 (30 Am. St. Rep. 79), it was said: “We have seen that the inference of malice may be drawn from a want of probable cause; and the fact that Dietrich had been tried and acquitted of the of-fence charged was itself some evidence — sufficient, it seems, to lift the burden of proof in- that regard off the plaintiff — of a want of probable cause. — Josselyn v. McAllister, 25 Mich. 45; Vinal v. Core, 18 W. Va. 1.”
The authorities are reviewed in Newell on Malicious Prosecution, pp. 282, 283.
*245Tlie Supreme Court of Missouri lias drawn a distinction, which seems to have in it much of reason, between acquittals on final trial and discharges on preliminary hearings, or refusals or failures to indict. The distinction is thus outlined by Mr. Newell, in a note to his work on Malicious Prosecution (page 283) : “The verdict of a jury upon the trial of a civil action is essentially different from the discharge of a supposed criminal by the examining magistrate, or upon a bill of indictment ignored by a grand jury. Even in the criminal proceeding, the final acquittal of the accused can have but little weight, as evidence of probable cause, compared with an acquittal or discharge before the magistrate or grand jury. The magistrate and grand jury have the very question of probable cause to try; and the evidence on the side of the prosecution is alone examined, and .proceeding is entirely ex parte. Under such circumstances, the refusal of the examining tribunal to hold the accused over till tried must necessarily be very persuasive evidence that the prosecution is groundless. —Brant v. Higgins, 10 Mo. 728.”
Mr. Greenleaf (Ev. vol. 2, § 435, pp. 435, 436) says: '“'The discharge of the plaintiff by the examining magistrate is prima facie evidence of the want of probable cause, sufficient to throw upon the defendant the burden of proving the contrary. But in ordinary cases it will not be sufficient to show that the plaintiff was acquitted of an indictment by reason of the non-appearance of the defendant, who was the prosecutor; nor that the defendant, after instituting a prosecution, did not proceed with it; nor that the grand jury returned the bill, Not found.’ ”
Mr. Newell, after reviewing the authorities (Mai. Pros. p. 290), says: “Our courts, however, seem to be settling down to the rule that the discharge of a person *246accused of crime by a committing magistrate, or tbe ignoring of like charges by a grand jury, and similar adjudications, are prima facie evidence of tbe want of probable cause, sufficient to cast upon tbe opposite party tbe burden of proving tbe contrary. On tbe other band, tbe waiving of a preliminary examination, tbe disagreement of a jury, their hesitation in finding a verdict of acquittal, requiring tbe accused to enter into a recognizance by an examining magistrate, the finding of an indictment by a grand jury, have been held to be prima facie evidence of tbe existence of probable cause.” But be adds that tbe want of probable cause is not shown by tbe acquittal of tbe accused, meaning evidently not conclusively shown, though he does not say so.
Tbe Supreme Court of Appeals of West Virginia, in tbe case of Vinal v. Core, 18 W. Va., 1, made an extended review of tbe authorities on tbe question, and concluded as follows, as to tbe shifting of tbe burden of proof: “There is some difference of opinion whether an acquittal of tbe plaintiff on the trial by a jury is prima facie evidence of a want of probable cause; many cases bolding that it is not. But it is obvious that there is a great difference between tbe acquittal of the plaintiff by a jury and bis discharge by an examining magistrate, or the refusal of a grand jury to indict. It would be tbe duty of tbe jury to acquit tbe defendant, if on all tbe evidence there was a reasonable doubt of bis guilt, even though they might believe be was probably guilty of tbe crime. But tbe magistrate or grand jury would violate bis or their duty, if be or they discharged tbe accused when tbe evidence produced tbe belief that be was probably guilty of tbe crime. He or they act directly on tbe question whether there is probable cause for tbe prosecution; and if be or they discharge him it must be because in bis or their judgment there is no probable *247cause for the prosecution; and. accordingly the weight of authority and of reason is that such discharge by a justice or by a grand jury is prima facie evidence that there is a want of probable cause for the prosecution.— See Nicholson v. Goghill, 6 Dow. & Ry. 13, 14, and 4 Barn. & Cress. 21-24; Johnson v. Martin, 7 N. C. 248; Plummer v. Gheen, 10 N. C. 66-68 [14 Am. Dec. 572]; Johnson v. Chambers, 32 N. C. 287-292; Bostick v. Rutherford, 11 N. C. 83-87; Williams v. Norwood, 2 Yerg. [Tenn.] 329-336. There are, it is true, some authorities to the contrary. — See McRae v. Oneal, 13 N. C. 166-169, and especially Israel v. Brooks, 23 Ill. 578. But, of course, such a discharge is but prima facie evidence, and it may he rebutted, as the above authorities show.”
Our court having adopted one of these lines, and having cited the West Virginia case, we are not now willing to depart therefrom, whatever might he our opinion, if it were a new question.
Beversed and remanded.
Dowdell, C. J., and Simpson, Anderson, McClellan, and Sayre, JJ., concur. Somerville, J., concurs in reversal, but dissents from last proposition of the opinion.