#### JONES v. WILMINGTON AND WELDON RAILROAD CO.

(November 20, 1900.)

1. Judgment — When Supreme Court will reverse judgment of Court below — Issues—Special Verdict.

The Supreme Court will not reverse the judgment of the trial court, where issue's were submitted to the jury, and a verdict rendered, unless the verdict was a special one.

2. Appeal — Premature—Exception.

An appeal from the refusal of the trial court, to dismiss an action in accordance with an opinion of the Supreme Court, is premature.

3. Probable Cause — Malicious Prosecution — Preliminary examination before Justice of the Peace — Waiver.

The voluntary waiver of a preliminary examination before a Justice of the Peace is an admission of probable cause.

Douglas, J., dissenting arguendo.

Civil ActioN by William Wright Jones against the Wilmington and Weldon Railroad Company, heat'd by Judge Henry B. Bryan, at May Term, 1900, of CumbeblaND. Superior Court. From refusal of trial court to sign judgment *189dismissing tbe action, defendant appealed. Eor opinion, see 125 N. 0., 227.

N. A. Sinclair, W. A. Stewart, and Douglass & Simmsfor plaintiff.

George M. Bose, for defendant.

MoNtgomeby, J.

At tbe September Term, 1899, of tbis Court, a decision was made in tbis case, and tbe opinion duly certified to tbe Superior Court of Cumberland County. In tbat opinion, for errors in certain instructions, given by bis Honor in tbe Court below, a new trial was ordered. The action was begun by tbe plaintiff to recover damages against tbe defendant for malicious prosecution. The plaintiff bad waived examination before the Justice of the Peace, and bad given bond for bis appearance at Court. His Honor refused to instruct tbe jury, unqualifiedly, at tbe defendant’s request, tbat tbe waiving of tbe preliminary examination before tbe Justice of tbe Peace was prima facie evidence of probable cause. It appearing to tbis Court, tbat from tbe whole of the evidence tbe waiver of tbe preliminary examination by tbe plaintiff was voluntary, it was decided tbat tbat act was a confession of probable cause, so far as the action of tbe defendant in procuring the warrant for bis arrest was concerned, and tbis Court further said tbat tbe waiving of tbe examination before tbe Justice was fatal to the plaintiff’s cause of action. At tbe next term of the Superior Court, after tbe opinion of tbis Court bad reached tbe Superior Court, a judgment of dismissal of the plaintiff’s action was tendered to bis Honor for bis signature, and his Honor refused to sign it, and tbe defendant appealed. In our opinion in tbis case, delivered at tbe Pali Term, 1899, we did not undertake to reverse tbe judgment of tbe Court below. That course is never followed when issues have been *190submitted to tlie jury, and a verdict rendered, unless tbe verdict is a special one. We did intend, however, to intimate that, when tbe case was called again for trial in the Superior Court, tbe 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 appearnce 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.

Douglas, J., dissents from the opinion only arguendo.