¶1 The complaint sets forth two causes of action, the first one being for malicious prosecution and the second for slander. The defendant did not enter a demurrer on account of the misjoinder. The first issue was as to whether the arrest and imprisonment of the plaintiff was malicious and without probable cause, and the second was as to whether the defamatory words were spoken of the plaintiff maliciously. The defendant introduced no testimony. The Court instructed the jury that if they believed the evidence they should answer the first and third issues ‘‘Yes.” in this instruction tñere was error in so far as it was applied to the first issue. In actions for malicious prosecution, both the want of probable cause and malice must concur. This Court said in Johnston v. Martin, 7 N. C., 248, that ‘-malice alone is not sufficient, because a just accusation may be made from malicious motives; nor is the want of probable cause alone sufficient.” In the case of Johnson v. Chambers, 32 N. C., 287 it was said that “the dismissal of the Btate’s warrant raised a presumption of the want of probable cause but it did not also raise a presumption of malice; for the question of malice was not inquired of by the Justice of the Peace. Malice may in some cases be inferred from the want of probable cause but the law makes no such presumption. It is a mere inference of fact which the *149 jury may or may not make, and it should have been left to them. ” This Court also said in Brooks v. Jones, 33 N. C., 260 that “where there is a total want of probable cause the jury will infer malice almost of necessity, as a prosecution wholly groundless cannot he accounted for in any other way.” On account of the error pointed out in his Honor’s instruction there must he a new trial. And it is suggested that, if the trial is had on the same complaint and answer, the entire damages be assessed under one issue, and not under two issues as was the case on the last trial.
¶2 New trial