If this case had been submitted to the jury, and a verdict rendered in favor of the defendant, the error pointed out by the second assignment of error would have required a reversal. The defendant liad begun a prosecution against Nachtman in 1886, which upon investigation was not sustained. This action for malicious prosecution was then begun. The defence set up was the existence of probable cause. In support of this defence evidence was offered for the purpose of showing that certain acts and declarations of the plaintiff were communicated to the defendant about three years after the prosecution complained of began. The objection to its admission was overruled and the evidence given. It was clearly incompetent for the purpose for which it appears to have been offered and the objection should have been sustained. The inquiry related to the motive with which the prosecution was begun. Was it a bad one, or an honest one ? This did not depend on knowledge acquired three years after the act alleged to be malicious was done. But this error really did the appellant no harm, since the learned judge did not submit the case to the jury upon the evidence, *204but gave them a binding instruction to find for the defendant. He held that upon' the facts that were admitted by the plaintiff, probable cause was shown. These facts were, the tearing of theatre bills from the walls of the room the plaintiff had occupied, and burning them; the existence of the pile of smouldering ashes and unconsumed scraps of paper upon the floor, the scattering of matches about the room; and the removal by the plaintiff and his companion of their effects from the house at that time. These circumstances the learned judge held to be sufficient to arouse suspicion and afford probable cause. The admission of the evidence complained of was therefore immaterial and the judgment must be affirmed, for the reason given by the court below.