This is an action on the case for malicious prosecution. The facts as now presented do not materially differ from those as stated when this case was before us in 64 Maine, 518.
I. The testimony of one Porter is objected to, but upon perusal it is rather adverse than,,favorable to the party by whom it was offered, and of that the plaintiff cannot reasonably complain. It is, however, of so little importance that it is difficult to perceive why the defendant should offer it or, when received, why the plaintiff should object to its reception. To sustain an exception, it must affirmatively appear that the party excepting was aggrieved thereby.
II. It seems that one Harrison Joy claiming to be a minor had a demand against the plaintiff for work and labor. W. H. Motley testified that he “stated to Winslow when he came to his office, that the boy (Joy) was a minor and could not bring the action in *452his own name, but would be obliged to bring it in the name of another, a nest friend, and asked him if he would allow his name to be used as next friend. "Winslow asked whether it would subject him to any trouble or cost to allow his name to be used. The witness stated it would not, and it was the only way that minors could collect their claims legally. Winslow said, “very well, I don’t want to get into any trouble about this ; you can use my name.”
It is objected that this evidence is inadmissible; but we think otherwise. It shows the circumstances under which the defendant allowed his name to be used as next friend, and completely negatives any malicious intent on his part at that time. If the suit was erroneously commenced it was not his fault.
It is argued that here was a concealment of facts on the part of the defendant. But it does not appear that he had any knowledge about the matter, but what he received from Joy’s counsel, and concealment of any fact on the part of counsel would not tend to prove malice on the part of the defendant.
III. It is argued that the judgment against Soule for seventeen dollars was erroneous. If it was so, it neither indicates nor tends to indicate malice on the part of the defendant. He is not to be held responsible for an error of the court, which escaped the keen eye of the vigilant counsel for the plaintiff.
As in .the suit claimed to be malicious, judgment was rendered for seventeen dollars, and no exceptions were taken to that adjudication and the judgment is in full force and not reversed, the plaintiff cannot complain of a ruling which affirms the validity of such judgment.
IY. There is no evidence showing that the defendant was aware that a tender had been made. He was not informed of that fact by Mr. Motley ; and if he had been, the party tendering had a right to contest its sufficiency, without being liable to a suit for malicious prosecution. Indeed, suits of that character would be almost infinite in number if an action for malicious prosecution could be maintained every time a plaintiff recovered less than he sued for.
Y. It seems there was at the last trial evidence tending to show that Joy was not a minor when the suit against Soule was commenced.
*453The plaintiff’s counsel requested the court to instruct the jury that the defendant’s allowing his name to be used in an action as next friend of an alleged minor, when he knew such person not to be a minor, would be want of probable cause. This instruction the court refused to give.
The writ contains no count alleging that the plaintiff allowed his name to be used as next friend for one whom he knew not to be a minor. There is no evidence whatever to show the defendant had any knowledge of such supposed fact, but the reverse, for he swears Joy was a minor. A court is not bound to give instructions upon a non-existent state of facts, or upon facts not proved in the case as existing.
The refusal of the court to give the instruction was correct.
"VI. If the suit is to be regarded as brought in the defendant’s name through the mistake of counsel, assuredly the defendant cannot be held liable in a suit for malicious prosecution, when such suit is so brought contrary to his expectations, and without his authority or knowledge. Exceptions overruled.
Walton, Daneorth, Virgin and Peters, JJ., concurred.