Witham v. Thomas

We are not able to find any evidence from which the jury could properly say that the prosecution before the justice of the peace was malicious, or that it was without probable cause. On the contrary, we ate disposed to share the surprise expressed by the circuit judge that the accused persons were not held for trial. Where a fence six feet high is standing along a boundary line, the fact that gaps existed in some places would scarcely explain how a careful man could so far trespass upon his neighbor’s land as was done in this case. It is not surprising that the criminal charge was made, for there was apparently a reasonable ground to sustain it. Malice not being shown, and probable cause existing, the nonsuit was rightly granted.

Judgment affirmed.