DOUGLAS, J., dissents from the opinion only arguendo. At the September Term, 1899, of this Court, a decision was made in this case, and the opinion duly certified to the Superior Court of Cumberland County. In that opinion, for errors in certain instructions, given by his Honor in the Court below, a new trial was ordered. The action was begun by the plaintiff to recover damages against the defendant for malicious prosecution. The plaintiff had waived examination *Page 130 before the Justice of the Peace, and had given bond for his appearance at Court. His Honor refused to instruct the jury, unqualifiedly, at the defendant's request, that the waiving of the preliminary examination before the Justice of the Peace wasprima facie evidence of probable cause. It appearing to this Court, that from the whole of the evidence the waiver of the preliminary examination by the plaintiff was voluntary, it was decided that that act was a confession of probable cause, so far as the action of the defendant in procuring the warrant for his arrest was concerned, and this Court further said that the waiving of the examination before the Justice was fatal to the plaintiff's cause of action. At the next term of the Superior Court, after the opinion of this Court had reached the Superior Court, a judgment of dismissal of the plaintiff's action was tendered to his Honor for his signature, and his Honor refused to sign it, and the defendant appealed. In our opinion in this case, delivered at the Fall Term, 1899, we did not undertake to reverse the judgment of the Court below. That course is never followed when issues have been submitted to the jury and a verdict rendered, unless the verdict is a special one. We did intend, (190) however, to intimate that, when the case was called again for trial in the Superior Court, the jury should be instructed, under our decision, that they should answer the issue against the plaintiff's claim; the presumption being, of course, that the plaintiff's evidence on the waiver of the examination before the Justice of the Peace, and his giving bond for his appearance at Court, was true. But the appeal was premature, and must be dismissed. The defendant should have noted its exception, and gone on with the trial of the case.
Appealed dismissed.