This case presents two causes of action; the first, for an “unlawful and wrongful” arrest and imprisonment, and the second for malicious prosecution of the plaintiff in the St. Louis court of criminal correction, on a charge of obtaining money by false pretenses. The-answer was a general denial.
At the trial, plaintiff’s evidence disclosed that he had been arrested upon a warrant, regularly issued in a criminahprosecution before the St. Louis court of criminal correction, upon information duly filed.
The court admitted, against plaintiff’s objection, evidence that he was not of good credit at the time of the prosecution.
It also gave among the instructions, at defendants’ instance, the following:
“3. Although the plaintiff succeeds in satisfying you, from the evidence, that the prosecution complained of was commenced by defendants without probable cause, yet you will find your verdict for the defendants unless you further find from the' evidence that the defendants commenced and continued the prosecution against the plaintiff maliciously.”
There was a finding for defendants on each of the two causes of action, and judgment accordingly, from which plaintiff appealed after the ordinary preliminaries.
The evidence did not support plaintiff’s first cause of action. It was predicated on the illegality of plaintiff ’ s arrest; but his own evidence revealed that the arrest and imprisonment complained of were made in due course upon regular proceedings of a court having complete jurisdiction of the offense charged. No cause of action for false imprisonment could be maintained on *563his own showing. It is, hence, unnecessary to consider any error assigned by plaintiff: with reference to that court, as the finding for defendants thereon was for the right party and will not be disturbed.
II. As to the second cause of action, plaintiff complains of the admission of defendants’ evidence to the effect that he was not of good business credit and repute at the time of the alleged malicious prosecution. But, as that count expressly mentions injury to his good name and reputation “in his business as carpenter and builder” as an element of damage, we have no doubt of the correctness of the ruling of the trial court on that point.
An error, however, was made in the instruction for defendants which told the jury to find for them unless they found from the evidence that defendants ‘ ‘ commenced and continued the prosecution against the plaintiff maliciously.”
Malice is an essential fact to be proven to maintain an action for malicious prosecution, though it may often be inferred as a fact from the proofs which establish a want of probable cause; but it was not vital to plaintiff’s recovery that he should show that defendants commenced and continued the prosecution maliciously. If he proved that it was either so commenced or continued by them, it would be sufficient to support his case under the pleadings and evidence. The instruction in question required plaintiff to bear a greater burden of proof than the law, in strictness, demanded.
It is, hence, necessary to reverse the judgment and the finding on the second count of the petition, and to remand the cause for a new trial thereon. The finding on the first count is affirmed.
The other points of criticism on the instructions can doubtless be avoided on a retrial, and therefore do not call for remark at present.
The costs of this appeal will abide the event of the action.