#### J. M. VICKERS vs. BENJ. LOGAN AND SAMUEL HAMPTON.

Whether certaih supposed facts constitute probable cause for a prosecution, is a question of law, to be decided t>y the Court, and not by the jury. It is the duty of the Judge, leaving to the jury to ascertain the existence of the facts, to declare what inference as to probable cause results therefrom; to leave the infeiende to the discretion of the jury, is error in law.

(The case of Seale v. RóbeteOns 7 Ire. 2S0, cited and apjtfoYetl.)

Tens was an acti’on on the case for malicious prosecution in the siring out á State’s warrant charging the plaintiff with a lar» *394ceny, and was tried upon the plea oí general issue before Ellis, Judge, on the last Spring Circuit, at Rutherford. After the testimony in the case was closed, (which it is deemed unnecessary to insert here,) the plaintiff’s counsel asked his Honor to charge the jury that there was no probable cause for suing out the said State’s warrant against the plaintiff. His Honor “ refused to give the instruction prayed for, but defined to the jury what in law constituted probable cause, and submitted the case to them.”

There was a verdict for the defendants, and judgment having been rendered thereon, the plaintiff appealed to the Supreme Court.

Shipp and Busbee, for the plaintiff.

G. W. and J. Baxter, for the defendants.

Battle, J.

We may say here what this Court said in the case of Beale v. Roberson, 7 Ire. Rep. 280, that “ this case brings up again the question whether probable cause is matter of law so as to make it the duty of the Court to direct the jury, that if they find certain facts upon the evidence, or draw from them certain other inferences of fact, there is or is not probable cause ; thus leaving the questions of fact to the jury, and keeping their effect, in point of reason, for the decision of the Court, as a matter of law. Upon that question the opinion of all the Court is in the affirmative, and therefore this judgment must be reversed.”

Chief Justice Ruffin, who delivered the opinion of the Court in the case, then goes into an elaborate examination of the question, both upon principle and the authorities in England and in this State, and adds — “ It would seem, then, that making a question on this subject must be regarded as an attempt to move fixed things, and cannot be successful either in England or here.”

The case referred to is so apposite to this in every respect, that we cannot do better than to adopt the conclusion as well as the commenceinent of the opinion pronounced in it: — “As the case goes back to another trial, on which the facts may appear differently, we think it unnecessary to consider those that came out on a former trial in reference to the question of probable cause, further than to remark that few cases perhaps could better illustrate *395the danger of leaving.that question to the discretion of a jury, whose decision of it is not susceptible of review in another Court.”

Per Curiam. Judgment reversed, and venire de novo ordered.