Wood, J.
(after stating the facts). (1) Before appellee could maintain his action for malicious prosecution it was necessary for him to show that the original proceeding instituted against him had been legally terminated. “It is a sufficient termination of the original proceeding to serve as a basis for an action for malicious prosecution that plaintiff was discharged, or the original proceeding was dismissed at a preliminary hearing, or before trial, as upon an abandonment of the proceedings.” 26 Cyc. 55 et seq. 59.
(2-3) Appellant, while conceding that an abandonment of the original proceedings by Twist would be a sufficient termination of the original proceedings, nevertheless contends that the criminal prosecution was not abandoned. But, giving the testimony its strongest probative value in favor of the appellee, it was sufficient to warrant a finding that Twist had abandoned the criminal prosecution instituted by him against the appellee before the justice of the peace. Oral proof of what took place before the justice was competent to show an abandonment. The testimony shows that after the verdict had been returned in the civil action an attorney for the appellee stated that the facts were about the same in the two cases and moved the court to dismiss the criminal charge, and that the court dismissed that charge and released the appellee.. Appellant Twist and his counsel were present and offered no objection to this proceeding. When such affirmative action was being taken by the court in the presence of Twist and his counsel with reference to the prosecution that had been instituted by him it was incumbent upon him at least to object to the dismissal. He was called upon to speak then, and having failed to do so he cannot set up that the prosecution was not abandoned because the same facts were afterward presented by him to the grand jury upon which an indictment was returned.
The proceedings before the grand jury were entirely independent of the proceedings before the justice of the peace. If the justice had held appellee to answer to the grand jury on the charges' instituted against him by Twist then the proceedings before the grand jury might be regarded as a continuation of the original prosecution. But when the justice dismissed the prosecution and discharged the appellee without objection or protest from appellant, that was an abandonment of the proceedings before the justice. See Costello v. Knight, 4 Mackey Rep. 65.
This is not like a ease where a criminal prosecution is dismissed by mutual consent. Here the testimony tended to show that the facts upon which the prosecution was based had been developed in a civil action, and the appellee, in asking the justice to dismiss the prosecution and to discharge him, was but contending that the cause had been heard and that he was entitled, as a matter of legal right, to a judgment dismissing the prosecution.
There was no mutual consent between the appellee and the appellant that the prosecution should be dismissed, but a positive demand for dismissal upon the part of the appellee, and a failure to object thereto on the part of appellant. The facts of this case are entirely different from those cases cited in appellant’s brief, in which a nolle prosequi of the criminal case is procured at the instance of the defendant therein, or where there has been a compromise and the ease is dismissed by mutual consent of the prosecutor and the defendant.
There was testimony from which the jury might have found that appellant Twist abandoned the criminal prosecution instituted by him against appellee before the justice of the peace. Such abandonment, as we have seen, constituted a legal termination of that prosecution.
(4) There is no competent evidence in the record showing that the criminal prosecution against appellee pending before the justice had been dismissed. Such fact could only be established by the. best eyidence thereof, which would be the judgment of dismissal entered on the justice’s docket or minutes of his proceedings. Oral proof of such judgment would not be competent until a sufficient foundation had been laid for such proof by showing that the justice had kept no docket or that the justice’s docket had been lost or destroyed. See Scott v. State, 49 Ark. 156. Our statute provides that every justice of the peace shall keep a docket in which he shall enter his proceedings in each case. See Kirby’s Digest, sections 4562, 2149.
(5) The appellant, however, is not in an attitude to complain of the ruling of the court in permitting the justice of the peace to testify that the criminal ease against the appellee was dismissed. Appellant made no objection to such testimony at the time, saved no exceptions to the ratings of the court, and did not make such ruling a ground of his motion for a new trial. We would not reverse the case therefore for the ruling in admitting this incompetent testimony, and only mention it here in view of a new trial.
Appellant urges that there was probable cause for instituting the criminal prosecution against appellee before the justice, and that no malice upon the part of Twist was shown. Also that the verdict was excessive, and actuated by passion and prejudice.
The testimony bearing upon these questions is quite voluminous. No useful purpose could be sub-served by discussing it in detail. These were issues of fact upon which the court properly instructed the jury, and there was evidence to sustain the verdict. We find no reversible error in the rulings of the court on any of these grounds.
In overruling the motion for a new trial the court said: “While the jury determined by their finding that Twist did not make a full and complete statement of all of the facts within his knowledge when consulting said attorney, in my judgment the finding upon that question was against the preponderance of the evidence. However, the verdict will not be disturbed merely because it is against the preponderance of the evidence.”
Under our judicial system it is the peculiar province of the jury to determine issues of fact, being guided in their deliberations by instructions or declarations of law announced by the trial court applicable to the facts which the testimony adduced in the cause tends to prove. It is the duty of the jury to apply the law, as declared by the court, to the facts which they find established by the evidence and decide the issues of fact in accordance with, the preponderance of the evidence.
(6) In order to determine which of the parties litigant has the preponderance of the evidence in his favor the jury are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. Under our Constitution the trial court cannot invade the province of the jury to tell them what weight they should give to the testimony as a whole, or to that of any witness. They cannot charge juries with regard to matters of fact. Const, of Ark. article 7, section 23.
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Wood, J.
(after stating the facts). (1) Before appellee could maintain his action for malicious prosecution it was necessary for him to show that the original proceeding instituted against him had been legally terminated. “It is a sufficient termination of the original proceeding to serve as a basis for an action for malicious prosecution that plaintiff was discharged, or the original proceeding was dismissed at a preliminary hearing, or before trial, as upon an abandonment of the proceedings.” 26 Cyc. 55 et seq. 59.
(2-3) Appellant, while conceding that an abandonment of the original proceedings by Twist would be a sufficient termination of the original proceedings, nevertheless contends that the criminal prosecution was not abandoned. But, giving the testimony its strongest probative value in favor of the appellee, it was sufficient to warrant a finding that Twist had abandoned the criminal prosecution instituted by him against the appellee before the justice of the peace. Oral proof of what took place before the justice was competent to show an abandonment. The testimony shows that after the verdict had been returned in the civil action an attorney for the appellee stated that the facts were about the same in the two cases and moved the court to dismiss the criminal charge, and that the court dismissed that charge and released the appellee.. Appellant Twist and his counsel were present and offered no objection to this proceeding. When such affirmative action was being taken by the court in the presence of Twist and his counsel with reference to the prosecution that had been instituted by him it was incumbent upon him at least to object to the dismissal. He was called upon to speak then, and having failed to do so he cannot set up that the prosecution was not abandoned because the same facts were afterward presented by him to the grand jury upon which an indictment was returned.
The proceedings before the grand jury were entirely independent of the proceedings before the justice of the peace. If the justice had held appellee to answer to the grand jury on the charges' instituted against him by Twist then the proceedings before the grand jury might be regarded as a continuation of the original prosecution. But when the justice dismissed the prosecution and discharged the appellee without objection or protest from appellant, that was an abandonment of the proceedings before the justice. See Costello v. Knight, 4 Mackey Rep. 65.
This is not like a ease where a criminal prosecution is dismissed by mutual consent. Here the testimony tended to show that the facts upon which the prosecution was based had been developed in a civil action, and the appellee, in asking the justice to dismiss the prosecution and to discharge him, was but contending that the cause had been heard and that he was entitled, as a matter of legal right, to a judgment dismissing the prosecution.
There was no mutual consent between the appellee and the appellant that the prosecution should be dismissed, but a positive demand for dismissal upon the part of the appellee, and a failure to object thereto on the part of appellant. The facts of this case are entirely different from those cases cited in appellant’s brief, in which a nolle prosequi of the criminal case is procured at the instance of the defendant therein, or where there has been a compromise and the ease is dismissed by mutual consent of the prosecutor and the defendant.
There was testimony from which the jury might have found that appellant Twist abandoned the criminal prosecution instituted by him against appellee before the justice of the peace. Such abandonment, as we have seen, constituted a legal termination of that prosecution.
(4) There is no competent evidence in the record showing that the criminal prosecution against appellee pending before the justice had been dismissed. Such fact could only be established by the. best eyidence thereof, which would be the judgment of dismissal entered on the justice’s docket or minutes of his proceedings. Oral proof of such judgment would not be competent until a sufficient foundation had been laid for such proof by showing that the justice had kept no docket or that the justice’s docket had been lost or destroyed. See Scott v. State, 49 Ark. 156. Our statute provides that every justice of the peace shall keep a docket in which he shall enter his proceedings in each case. See Kirby’s Digest, sections 4562, 2149.
(5) The appellant, however, is not in an attitude to complain of the ruling of the court in permitting the justice of the peace to testify that the criminal ease against the appellee was dismissed. Appellant made no objection to such testimony at the time, saved no exceptions to the ratings of the court, and did not make such ruling a ground of his motion for a new trial. We would not reverse the case therefore for the ruling in admitting this incompetent testimony, and only mention it here in view of a new trial.
Appellant urges that there was probable cause for instituting the criminal prosecution against appellee before the justice, and that no malice upon the part of Twist was shown. Also that the verdict was excessive, and actuated by passion and prejudice.
The testimony bearing upon these questions is quite voluminous. No useful purpose could be sub-served by discussing it in detail. These were issues of fact upon which the court properly instructed the jury, and there was evidence to sustain the verdict. We find no reversible error in the rulings of the court on any of these grounds.
In overruling the motion for a new trial the court said: “While the jury determined by their finding that Twist did not make a full and complete statement of all of the facts within his knowledge when consulting said attorney, in my judgment the finding upon that question was against the preponderance of the evidence. However, the verdict will not be disturbed merely because it is against the preponderance of the evidence.”
Under our judicial system it is the peculiar province of the jury to determine issues of fact, being guided in their deliberations by instructions or declarations of law announced by the trial court applicable to the facts which the testimony adduced in the cause tends to prove. It is the duty of the jury to apply the law, as declared by the court, to the facts which they find established by the evidence and decide the issues of fact in accordance with, the preponderance of the evidence.
(6) In order to determine which of the parties litigant has the preponderance of the evidence in his favor the jury are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. Under our Constitution the trial court cannot invade the province of the jury to tell them what weight they should give to the testimony as a whole, or to that of any witness. They cannot charge juries with regard to matters of fact. Const, of Ark. article 7, section 23. But after the jury has concluded its deliberations and returned its verdict, if there is a motion for a new trial setting up that the verdict is not sustained by sufficient evidence, or that it is contrary to law, or both, it is then the province of the trial court to review the verdict and to determine whether or not the jury has correctly app ied the law as contained in the court’s instructions, and whether or not the verdict is responsive to the preponderance of the evidence.
(7-8) Under the law the verdict of a jury should be in favor of that party who has established the issues of fact for which he contends by a preponderance of the evidence. If the jury has not so decided, then its verdict is not correct, and it is tbe peculiar and exclusive province of the trial court to correct such .error by granting a new trial. When the trial court becomes convinced that the verdict is not sustained by a preponderance of the evidence, then it is his duty to set aside that verdict. And if the trial court , finds and announces that the verdict of the jury is against the preponderance of the evidence on a material issue of fact then he must set aside such verdict. The trial court presides over the trial. He observes and hears the witnesses, and has the same opportunity as the jury in this respect, and that is the reason why it is made his peculiar and exclusive function to determine the issue on a review of'the verdict as to whether it is responsive to the preponderance, of the evidence in the cause. This court cannot do that for the reason that it has no such opportunity. Hence the rule is firmly established by the authority of our own decisions, as well as courts of last resort in many other jurisdictions, that a ruling of the trial court overruling a motion for a new trial and sustaining the verdict of a jury, as in accord with the preponderance of the evidence, will not be reversed and the verdict set aside by the appellate court even though such court may be convinced that the verdict of the jury is clearly against the weight of the evidence. This couit will not pass upon the issue as to whether or not a verdict is responsive to the preponderance of the evidence, but will leave that issue where it belongs, under our judicial system, to the trial court. But when the trial court has passed upon that issue and announced its finding this court must see as a matter of law that the party entitled thereto gets the benefit of such finding.
The rule setting forth the respective functions of the jury and the trial court and this court is well expressed in Richardson v. State, 47 Ark. 562, 567, where we said: “But the weight of evidence and the credibility of witnesses are to be determined by the jury. It is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence. But when the case reaches us, the question is no longer whether the evidence preponderates on one side or the other, or whether due credit has been given to the statements of a witness who has testified fully and fairly. But the question is, whether there is a failure of proof on a material point. To order a new trial because we differ in opinion from the circuit judge as to the weight of the testimony, or the truth ox falsity of a witness, is to substitute our dis'cretion for his discretion. And in this matter he is supposed to enjoy some advantages over us.”
And again in Blackwood v. Eads, 98 Ark. 304-310, where we quoted from Taylor v. Grant Lumber Co., 94 Ark. 566, as follows: “The trial judge still has control of the verdict of the jury after and during the term it was rendered. Because of his training and experience in the weighing of testimony, and of the application of legal rules to the same, and of his equal opportunities with the jury to weigh the evidence and judge of the credibility of witnesses, he is vested with the power to set aside their verdicts on account of errors committed by them, whereby they have failed in their verdict to do justice and enforce the right of the case under the testimony and instruction's of the court. This is a necessary counterbalance to protect litigants against the failure of the administration of the law and justice on account of the inexperience of jurors.”
In Blackwood v. Eads, supra, we said further: “Where there is a decided conflict in the evidence this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for a new trial or overruling same.” * * * .
“The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.” See also McDonald v. St. L. S. W. Ry. Co., 98 Ark. 334; McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596-599.
The only tribunal, under our judicial system, vested with the power to determine whether or not a verdict is against the preponderance of the evidence is the trial court. Where there is a conflict in the evidence and the trial court finds that ■ the verdict, upon a material issue of fact, is against the preponderance of the evidence,, the logical and necessary result of such finding as matter of law is that the verdict must be set aside; otherwise, it would be impossible to correct the error.
We are aware that a different rule prevails in some jurisdictions, but the rule which obtains in our own jurisdiction is the only logical and sound one, and it is supported by excellent authority elsewhere. Precisely the same rule prevails in Tennessee. Cumberland, etc. Telephone Co. v. Smithwick, 112 Tenn. 463; Railroad v. Neely, 102 Tenn. 702; Turner v. Turner, 85 Tenn. 387; and see, also, K. P. Railway Co. v. Kunkel, 17 Kan. 172; Central of Georgia Ry. Co. v. Harden, 113 Ga. 453; Tacoma v. Light Co., 16 Wash. 288. We cannot approve the doctrine that it is an invasion of province of the jury for the trial court to set aside a verdict which he finds to be against the preponderance of the evidence. On the contrary if lie fails to do so, he surrenders his own province, ignores his duty, and by so doing destroys the integrity of the best system that thus far. has been devised in this country for the administration of justice.
Perhaps in the majority of courts of last resort in this country the rule obtains that where the trial court has sustaified the verdict of a jury, the court of review will not reverse the ruling of the trial court in refusing to set aside such verdict where there is sufficient evidence to sustain it, even though in the opinion of the appellate court such verdict may be clearly against the weight of the evidence.
Learned counsel for the appellee cite us to several cases of our own. court where the above rule is announced. Drennen v. Brown, 10 Ark. 138; Allen v. Nordheimer, 13 Ark. 339; Lindsay v. Wayland, 17 Ark. 385; Miss. etc. R. R. Co. v. Cross, 20 Ark. 443.
But the rule announced in these cases has no application whatever to, and should not govern trial courts in passing upon motions for a new trial. Having presided at the trial, and having seen and heard the witnesses testify, they have had the same opportunities as the jury, and hence are vested with the authority to ascertain whether or not the jury’s verdict is in accordance with the preponderance of the evidence, and when they have found upon conflicting evidence that such verdict is, or is not, against the weight of the evidence, such finding will not be set aside unless it is manifest that the court abused its discretion, that is, acted improvidently, arbitrarily, or capriciously in making such finding. Such finding must avail the party entitled to the benefit thereof.
Now, if the court had simply overruled the motion for a new trial, without the statement quoted, this ruling would have been tantamount to a finding that the verdict was not against a preponderance of the evidence. But such deduction cannot be drawn here for there was an affirmative finding of the court in the following language: “While the jury determined by their finding that the defendant Twist did not make a full and complete statement of all of the facts within his knowledge when consulting said attorney, in my judgment the finding upon that question was against the preponderance of the evidence.”
(9) This court has said in several cases that, “It is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence,” which means conversely that the trial judge should not set aside a verdict if the evidence is so evenly balanced that the court cannot see clearly that the verdict is against the preponderance. In other words the trial court should let the verdict stand if he is in doubt'as to whether or not it is against the preponderance. Where he finds positively that it was we must assume that he was convinced that such was the fact. When the language used by the court in ruling on the motion for new trial is closely analyzed, there does not appear to be any doubt or uncertainty in the mind of the court that the jury’s finding was against the preponderance of the evidence. To be sure, where the language used by the court is such as to make it doubtful or uncertain as to whether the court actually found the fact to be that the verdict was against the preponderance of the evidence, then the ruling of the court in refusing to set the verdict aside should not be disturbed.' But the language of the court was not such as to indicate that the testimony was so nearly at equipoise in the thought of the presiding judge as to leave him in doubt as to whether the verdict was against the preponderance of the evidence on the particular question mentioned. The word “merely” in the language quoted does not qualify the finding of the court bn that issue. On the conclusion of fact as to the verdict being against the preponderance of the evidence, the language of the court is positive and unequivocal.
The language “but, of course, the verdict will not be disturbed by me merely because it is against the preponderance,” states the court’s reason for the conclusion it had reached not to set aside the verdict. This language certainly does not indicate that there was any doubt or uncertainty in the mind of the court that the verdict was against the preponderance of the evidence. It rather emphasizes and strengthens the idea that the court had reached that conclusion. The language, however, does show that the court wholly misapprehended the rule of law that should be applied to such a finding. The language shows that the court was of the opinion that he could not disturb the verdict merely because it was against the preponderance, whereas that was tbe very reason why he should have set it aside.
The word “merely” means “purely,” “only,” “solely.” “Merely” is often misused for “simply.” Funk and Wagnall’s New Standard Dictionary. As used in the sentence it quaiifi.es the word because. So, giving the word any one of its natural and accepted meanings, and treating it in its grammatical relation to the other parts of the sentence, it does not show that the court was in any doubt whatever about the verdict of the jury being against the preponderance of the evidence. If the language of the court had been “the verdict will not be disturbed by me solely (or simply, or purely, or only) because it is against the preponderance of the evidence,” it would have had precisely the same meaning as the language actually used.
(10) Therefore, we conclude that the finding of the court was positive that the verdict was against the weight of the evidence on the essential point mentioned, and that the court erred, after thus finding, in not setting aside the verdict. For this error the judgment must be reversed and the cause remanded for a new trial.