
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC. 1812.
    Larkin Nash v. John Orr.
    In an action for malicious prosecution, the question of probable cause, was decided to be a mixed proposition of law and fact; and where the judge below reported that the evidence proved probable cause, and the jury ' found a verdict for the defendant, the court refused to disturb the verdict.
    Motion for a new trial. Action for a malicious prosecution, tried before Nott, J., in Pendleton district.'
    The judge reported, that the evidence on the trial proved circum stances of probable cause.
    The verdict was for the defendant.
    
      Grounds for the motion. 1. Misdirection of the judge, who directed the jury to judge of the want of probable cause; whereas, the court ought to judge whether the cause is probable or not. 2. Because the verdict was contrary to evidence ; there being evidence of malice, and want of probable cause.
    Submitted without argument.
    Taylor, for plaintiff. Bowie, for defendant.
   Brevard, J.

I am of opinion this motion ought to be rejected. The direction of the District Court to the jury was correct, that in an action for a malicious prosecution, the question of probable cause, is a mixed proposition of law and fact. That it is a matter of fact, whether the circumstances alleged, to shew it probable, or not, are true, and existed ; but whether, supposing them true, they amount to probable cause, is a question of law. 1 T. R. Sutton v. Johnson. 1 Wils. 232. 2 T. R. 231.

It appears from the report of the presiding judge, that there was evidence of probable cause, which was left to the jury, with the aboye direction. I can perceive no reason to induce me to think the verdict is inconsistent with law, or the justice of the particular case.

Bat, Smith, and Colcock, Js. of the same opinion. Geimke, J., absent.  