
    CONSTITUTIONAL COURT, CHARLESTON,
    MAY, 1806.
    Thomas v. Rouse.
    An action for maliciously holding the defendant to bail, lies not, though the action against the plaintilf should appear to have been unfounded; for a civil action is a claim of right, and the plaintiff may sue, and hold the party to bail, at the peril of costs. But trespass on the case, lies for consequential damages, for the vexation, if the suit, and holding to hail, be for vexation merely.
    Motion for a new trial. Rouse had sued Thomas to recover the price agreed on, for half a schooner. The jury gave a verdict for the defendant. Rouse then applied for a new trial, which was granted. • Upon the second trial', Thomas was again successful. After the event of the second trial, Thomas brought an action against Rouse, for a malicious prosecution, and for vexatiously and maliciously holding him to bail, in the aforesaid action. This last action was tried before Bay, J. in Charleston. It was proved that Thomas had been held to bail, and had been some time in gaol, before he could find' bail to the action brought against him, for the price of Rouse’s part of the schooner, which he had agreed to take, and which Rouse had tendered. But Rouse would not agree to relinquish what he thought he still had, a lien on the vessel, until the price was paid ; and, therefore, when Thomas attempted to sell the vessel, Rouse mentioned his lien, and defeated the sale. It was for this interference in the sale, that Rouse had a verdict against him, the jury wishing to balance the loss Thomas ' had sustained by Rouse’s interferring in the sale, for the vessel was lost to both parties, against Rouse’s loss of his part sold to Thomas. It did not appear that the bail required was excessive, or that Rouse had not probable cause for holding Thomas to bail. Yet the jury found a verdict for a large sum for plaintiff.
    Motion to set aside the verdict.
    Argued .by Gaillard. Duncan, contra.
    
   10th May, 1866.

Brevard, J.,

delivered the unanimous opinion of all the judges. This was a civil action for' damages for maliciously holding the defendant to bail. We are of opinion the ver-diet was unsupported by law, or evidence. To bring a civil action, though there should be no ground for it, is not actionable, unless for consequential damages. It is a claim of right; and the plaintiff may sue at the peril of costs. If it appeared the action was vexatious and malicious, or with a view to oppress the party, by holding him to unreasonable bail, the plaintiff would be entitled to recover. But in the present case, nothing like malice, or unjust vexation, appears on the part of the defendant, Rouse. If he had noj. a just cause of action, he certainly had a probable cause of action. Probable cause, if it were necessary in this case to the de. fence, was clearly shewn. It may be said that probable cause being a question of fact was decided by the jury ; but it is a question of law -for the decision of the court. The facts adduced to shew probable cause, or the want thereof, are for the determination of the jury, whether true or not; but whether they amount to proof of probable cause, admitting them to be true, is a question of law for the court.

New trial granted.  