On the question of probable cause, the charge of the judge was substantially in accordance with the propositions submitted by the defendant. On the question of malice, he properly declined to withdraw the issue from the consideration of the jury. He instructed them that if there was probable cause for the complaint, even though it was made from malicious motives, their verdict should be for the defendant. There was no error in refusing to charge in the precise terms of the requests as framed and submitted.
It is suggested by the defendant's counsel that as the plaintiff, in the first instance, entered into a recognizance to appear and answer any indictment, that might be preferred against him in the Court of Sessions, his subsequent discharge did not terminate the prosecution. No such point was taken at any stage of the trial. There was no allusion to it in the requests submitted to the judge, and it was not suggested as a ground for dismissing the complaint. If the defendant intended to raise any such question, it should have been specifically brought to the notice of the court. It is apparent, from the evidence, that there was no foundation for such an objection. The recognizance was provisional, and fell when the prisoner was discharged. It was not returned to the Court of Sessions; no indictment was found against the plaintiff; and the present action was not brought until after the term named in the recognizance, and the abandonment of the prosecution by the defendant.
The judgment should be affirmed.
All the judges concurring,
Judgment affirmed. *Page 15