the plaintiff, but the defendant had not missed this at the time he laid his information, and it did not appear how it got into the tool chest, or that the plaintiff knew of its being there till it was found on the search under a search

warrant.

At the close of the plaintiff's case the defendant's counsel contended that the plaintiff had failed to show want of reasonable and probable cause for the prosecution of the plaintiff on the charges laid, and that that was a question for the Judge and not for the jury. The learned Judge overruled the objection, and left the case to the jury in a charge set out in the judgment of Cameron, J., below. The jury found a verdict for the plaintiff generally for $500, and judgment was directed to be entered for the plaintiff, with costs.

May 18, 1882, Lount, Q. C., obtained an order nisi to set aside said judgment, and to enter a nonsuit as to the plaintiff's claim in respect of the prosecution for stealing the tools, on the ground that the learned Judge before whom the case was tried should have held and determined that the evidence failed to show want of reasonable and probable cause, and should have entered a judgment of nonsuit; or why a new trial should not be directed, on the ground that reasonable and probable cause was shown, and the jury should have been so directed; and on the ground that the learned Judge was wrong in directing the jury, on the question of malice, that if the information was laid without there being probable cause, the result would be that it was laid maliciously; and for excessive damages; and that the verdict was contrary to law and evidence.

May 26th, 1882. Lount, Q. C., supported his motion, contending that there was reasonable cause for the arrest as to the whole of the articles, and that, at any rate, as to one article (a "nut,") which was clearly not the plaintiff's property, there was reasonable cause; and that if there was reasonable cause for any one article, then that was sufficient.

He also contended that there was misdirection in telling the jury that malice was necessarily to be inferred from want of reasonable and probable cause; and that the damages were excessive under the circumstances. He cited Donnelly v. Bawden, 40 U. C. R. 611; Hicks v. Faulkner, L. R. 8 Q. B. D. 167; Lucy v. Smith, S U. C. R. 518; Rice v. Saunders, 26 C. P. 27; Lister v. Perryman, L. R. 4 H. L. 531.

Pepler, contra. The facts clearly showed a most extreme case of want of reasonable and probable cause, and as to the "nut," it was true it was not the plaintiff's property, but it (a perfectly valueless article) was only by accident discovered by defendant and the constable when making the search, mixed in with the tools of plaintiff' in his tool box, and was not the subject of the information or proceedings in any way, and was properly treated Lefore and at the trial by all parties as of no consequence; and at any rate, if any of the charges in the information were malicious and without reasonable and probable cause, the case was proved, although there was good ground for some of the charges: see Reed v. Taylor, 4 Taunt. 616.

While admitting that the correct rule is, that malice may be inferred from want of reasonable cause, but the jury are are not obliged to so infer, yet, on the authority of Mitchell v. Jenkins, 5 B. & Ad. 588 & 594, and Payne v. Recans, 9 W. R. 693, it is only where the question of malice is in effect wholly withdrawn from the jury, or where--which is tantamount to the same thing-they are told that the evidence of want of reasonable cause is conclusive evidence of malice, that there is misdirection. Here the charge was not so; and that part of the charge objected to was really nothing more than a paraphrase of the preceding definition of implied malice, and correct; and nowhere did the Judge charge in the imperative form; and further, as there was express malice proved, and which from the size of the verdict (under the Judge's charge "that if express malice was proved plaintiff was entitled to a substantial verdict,") the jury must have found, the charge as to implied malice is quite immaterial.

be a

Moreover, under marginal rule 311 of the Judicature Act, a new trial should not be granted unless there would substantial miscarriage of justice, &c., which can can hardly be contended in this case on the whole facts. See as to this, Reid v. McDonald, 26 C. P. 147; Smith v. Murphy, 35 U. C. R. 569; Gould v. British America Ass. Co. 27 U. C. R. 473, and Dear v. Western Ins. Co. 41 U. C. R. 553.

As to the excessive damages, the true rule is, that that is not a ground for new trial, unless there is obvious error or misconception, or there has been some undue motive actuating. Damages are the peculiar province of the jury," &c., as laid down in Berry v. D'Acosta, L. R. 1 C. P. 331; and see Appleton v. Lepper, 20 C. P. 138; Robertson V. Meyers, 7 U. C. R. 423; Clissold v. Machell, 25 U. C. R. 80, S. C. in App. 26 U. C. R. 422; Campbell v. McDonell, 27 U. C. R. 343: Crandell v. Crandell, 30 C. P. 497; Woodman v. Blair, 30 C. P. 452.

June 23rd, 1882. CAMERON, J.-The learned Judge charged the jury on the claim for malicious prosecution in respect to the question of malice as follows: "In bringing an action for malicious prosecution, as this is called, what the plaintiff has to establish is this, that the prosecution was, as you have been reminded here, instituted maliciously and without reasonable and probable cause. I want to call your attention to the force of that. It is upon the effect What is

of that particularly I want you to pronounce. understood by the word malice in a case of this kind, need not trouble you much. It is sufficient to understand that in law a person is said to do an act maliciously in respect to another, when he does an act which he intends will do the other an injury or cause him any inconvenience. No doubt, if a person makes a charge against another for the purpose of his being arraigned upon it, he intends he should be arraigned. If he does that without being justified in point of law, then he does it maliciously. His object is, that his act shall have its natural and ordinary

effect. Sometimes in cases of this kind we require to lock into the matter to see whether there is not some greater degree of malice, ill-will, or spite, because if there is, that enters into that part of the case which relates to reasonable and probable cause in an indirect way. I do not think that you need trouble yourself with the question of malice in this case, except in the view that I have been pointing out. If this information was laid without there being proper cause, the result would be that it was laid maliciously. The plaintiff, however, contends that there was more than implied malice-that there was actual malice; that the whole thing was done out of spite. He attempts to give a ground for saying that by giving evidence from which he asks you to conclude that the ill-will originated from the fact of his telling Power's foreman of his intention to take his logs. He gives this evidence to show that these logs had been got into the boom by Kean, (defendant) for the purpose of stealing them, and he says that on account of his telling Power the defendant conceived this ill-will against him. If the plaintiff is right, if that is the case, the plaintiff would have a right to ask a verdict at your hands, and to ask you for very substantial damThat is about the way the plaintiff's case is presented before you. Do you believe that is the correct view? If you do, undoubtedly you should give substantial damages. If that is the reason he instituted the prosecution against this defendant, you should give him fair damages. In deciding the case you have to weigh the evidence. You are not bound to place credit on the evidence given by any of the witnesses: you can form your own conclusions where the evidence conflicts. It is not the question here whether the plaintiff has been shewn to have stolen these things, it is not the question whether they were his tools or not the only question is, whether the defendant Kean, when he laid that information, had reasonable and probable cause to lay it. That does not mean that he did it with the absolute certainty of being able to prove the charge: that is not neces

ages.

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sary, because were that the case-were people liable to damages because they were not able to prove the offence, though they had a just and reasonable suspicion-the effect would be, that people would not take the risk, and crime would go unpunished. All the law requires is, that there be a reasonable and probable cause. * *What the plaintiff has to maintain is this-he has to make out, not simply that he was prosecuted, that the prosecution terminated in his favour, but that it was incited without reasonable and probable cause. He is not to challenge the other party to shew that there was reasonable cause, but he has to shew that there was not. He has to prove the negative in that sense. The question is, whether the plaintiff has shewn that there was an absence of reasonable and probable cause. It is generally a question for the Court to say whether he has done so or not. In this case I have not felt that it was my province to pronounce upon that, for this reason-if a man is charged with fifty things, and he is only properly charged with stealing one, he cannot maintain an action. Well now the plaintiff says in the witness box these were mine; one cant hook was lent me, and the other was mine; the saw set was lent me; the defendant knew this, therefore he had no right to institute the prosecution. If that were so, then the defendant had no reasonable cause to lay a complaint; I cannot say that he did fail to shew an absence of reasonable and probable cause. The defendant, on the other hand, says that was not the state of facts at all. He says, these things may not have been mine. when the actual property is looked into. I supposed they were mine, and they were taken under circumstances that led me to think they were taken wrongfully, and therefore I had the right to lay this information. If that was true the defendant had the right. It then comes to be a question of fact, did the defendant when he laid the information. believe what he tells us now? It therefore becomes a question of fact depending on what view you may take of it. I ask you, therefore, did defendant believe what he stated in the information? That is the question."