#### Crabtree v. Horton.

February, 1813.

Argued, Feb. 24th, by the appellant’s counsel only.

Malicious Prosecution — Probable Cause — Instruction-Weight oí Testimony.* — In an action on the case for a malicious prosecution, the court ought not to instruct the jury that probable cause is proved to have existed at the time the prosecution was instituted; but should have the weight of the testimony to the jury; unless the facts, on which such question depends, be agreed by the pleadings, or submitted to the court by the parties, or by the jury.

See Hardaway v. Manson. 2 Munf. 230; and Fisher’s executor v. Duncan and Turnbull, 1 H. and M. 563.

In an action on the case for a malicious prosecution for theft of a mare, the defendant pleaded, “that he was well justified, and had sufficient grounds of suspicion, because the plaintiff took and led away the mare, *32mentioned in the plaintiff’s declaration, from the defendant’s plantation, in the absence of the defendant, and concealed her, the said mare, and this he was ready to verify.” Issue was joined; and, a jury being impanelled, the whole of the evidence on both sides was stated in a bill of exceptions ; the counsel for the defendant having “moved the court, that the question of what shall be deemed probable cause, is a matter for the court to decide, and not the jury ;— which the court so decided ; — and, also, that in the prosecution by the defendant against the plaintiff, probable cause for the said prosecution was proved to have existed at the time the said prosecution was instituted — to which opinion of the court, the plaintiff, by his counsel, excepted.

Verdict and judgment for the defendant; from which the plaintiff appealed.

*

“Malicious Prosecution — Probable Cause — Instruction — Weight of Testimony. — if there be a dispute about the facts in a case, and the evidence is contradictory on the facts entering into the question, whether there be probable cause, the proper course is for the j udge to .leave the question of probable cause to the jury with instructions upon the law to be applied to the different phases which the facts proven may in the mind of the jury assume: that if they And one state of facts, then there was no V>robabl e cause, but if they fmd that another state of facts existed, then there was probable cause, and they must find for the defendant. Vinal v. Core, 18 W. Va. 48, citing the principal case, and Maddox v. Jackson, 4 Munf. 465. To the same effect the principal case is cited in Womack v. Circle, 29 Gratt. 192.

For the court should not instruct the jury as to the weight of evidence. See, citing the principal case, Brooke v. Young, 3 Rand. 114; McVeigh v. Allen, 29 Gratt. 594; *foot-note*to McDowell v. Crawford, 11 Gratt. 377; *foot-note*to Bogle v. Sullivant, 1 Call 561; monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

In the special subject of malicious prosecution, see monographic *note*on “Malicious Prosecution” appended to Guerrant v. Tinder, Gilm. 36.

Friday, February 26th, 1813. - The president pronounced the opinion of this court, that the court below invaded the province of the jury, in relation to the weight of the tes-timony, and the credibility of the witnesses, in having decided that, in this case, probable cause was proved to exist, at the time the appellee commenced the prosecution in the declaration mentioned, without having the facts, on which such question depended, agreed by the pleadings, or submitted to the court by the parties or the jury.

Judgment reversed, and new trial awarded.