¶1On the merits:
¶2The defendant has appealed from a judgment awarding damages against him for the malicious arrest of Jane Barton, wife of Nicholas Barton.
¶3The suit is brought in the name of both spouses, and the defendant excepted to this joinder of parties.
¶4The husband, perhaps, had the right to sue alone for reparation; G: P. 107; Holmes v. Holmes, 9 L. 350. But we do not think that the joinder of the wife in the suit destroys the action. It may be disregarded, as surplusage.
¶5The counsel for the defendant asked the court to charge the jury as follows: “ That the plaintiff must not only prove malice, but must also show that there was no probable cause for the prosecution, and that the defendant is not bound to pi'ove probable cause until the plaintiff has shown the absence of it; and that if plaintiff show malice and not the want of probable cause, defendant can-mot he condemned, as it is just as necessary to show the want of probable cause as it is malice, before a recovery can be hadwhich instructions the court declined to give, and the defendant excepted.
¶6These instructions were appropriate to the case as charged in the petition, and are correct in law. It was, therefore, error in the Judge to refuse to give them. He has assigned no reasons for the refusal. If he had already given them in substance, it should have been so stated in the bill. A suggestion of counsel for the appellee cannot eke out the record. “ To maintain an action for this injury the plaintiff must prove : 1st, that he has been prosecuted by the defendant, either criminally or in a civil suit, and that the prosecution is at an end; 2d, that it was instituted maliciously, and without probable cause; *3343d, that he has thereby sustained damage.” 2 Greenleaf Ev., §449. “The plaintiff must show that the prosecution was instituted maliciously, and without probable cause; and both these must concur. If it were malicious and unfounded, but there was probable cause for the prosecution, this action cannot be maintained. The question of malice is for the jury; and to sustain this averment the charge must be shown to have been wilfully false. In a legal sense, any unlawful act, done wilfully and purposely to the injury of another, is, as against that person, malicious.” 2 Greenleaf Ev. §453.
¶7We also think that the Judge might with equal propriety have instructed the jury, as requested, that the affidavit of the defendant did not charge Mrs. Ba/rton with an act or offence punishable by the laws of this State, and that the magistrate erred in ordering her to be arrested thereupon; but the Judge should add, that if they found that the defendant nevertheless had maliciously, and without probable cause procured her to be arrested, the error of the magistrate would not absolve the defendant. For it is not material though the plaintiff was prosecuted by an insufficient process, or before a court without jurisdiction.
¶8The court did not err in declining to instruct the jury that the mere belief of the affiant in the truth of his charges would exonerate him ; but it would be proper to instruct them that “probable cause does not depend upon the actual state of the case, in point of fact, but upon the honest and reasonable belief of the party prosecuting.” 2 Greenleaf Ev. § 455.
¶9It is true, as contended for by the appellee’s counsel, that “ malice mcmj be inferred by the jury from the want of probable cause.” But the jury are not bound so to infer malice.
¶10The court should not receive evidence of malice on the part of the defendant towards other persons than the complaining parties.
¶11It is, therefore, ordered, that the judgment of the District Court be avoided, the verdict of the jury set aside, and the cause remanded for a new trial according to law and to the principles announced in this opinion, the costs of this appeal to be borne by the plaintiffs and appellees.