dissent">Goodrich, P. J.

(dissenting) :

There was neither demurrer nor motion before the trial to correct any imperfections in the complaint which prayed damages for false imprisonment and malicious prosecution, as might have been done upon the ground that the statement of the facts constituting each cause of action wTas not separate and numbered in accordance with section 483 of the Code of Civil Procedure, and while there are conflicting decisions whether or not the plaintiff could have been compelled at the trial to elect which remedy he would, pursue, I think the better opinion is that where the two causes of action are not separately stated, as is the fact here, the plaintiff should have been compelled to elect. Such a motion was made and denied, but no exception was taken.

I do not agree with Mr. Justice Hirschberg- that as the verdict may have been founded on one of two causes of action, i. e., false imprisonment or malicious prosecution, the judgment cannot be sustained unless the proof establishes both causes of action. On the contrary, I think that as the allegations and evidence were sufficient (as he writes) to establish a cause of action for false imprisonment, we might assume, if necessary to support the judgment in the absence of the charge from the record and in view of our ignorance of what questions were submitted to the jury,' that the verdict was based on that cause of action to sustain which it was only necessary to prove detention of the person and the unlawfulness of such detention.

*318On the other hand, to sustain ah action for malicious ,prosecution, three things must be shown, malice, want of probable cause and the termination of the prosecution ; and, in my opinion, there was evidence to sustain such a cause of action.

We are .thus justified in assuming that the jury found in favor of the plaintiff on both causes of action, but whether they based their verdict on one cause or the other, the evidence is sufficient to sustain the verdict.

I think the judgment should- be affirmed.

Judgment and order reversed and new trial granted, costs to ' abide the event.

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