Thomas v. Rouse, 2 Brev. 75

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.