Seabridge

This is an action to recover damages for malicious prosecution of a criminal action against plaintiff upon a charge that plaintiff did maliciously and willfully tear down fences to make a passage through an inclosure under the act of March 16, 1871-72, page 384.

At the close of the trial in the present action the court instructed the jury to find for defendants on the ground that the evidence showed without contradiction that there was probable cause for the criminal prosecution, because defendants acted in good faith under the advice of counsel, given upon a consideration of all the facts in the case. Verdict was accordingly rendered for defendants, and upon a motion for a new trial was set aside by the judge, presumably because he was con *348 vinced that he had erred in giving the instruction. This ■appeal is taken from the order granting a new trial.

It seems that plaintiff was in possession of a certain tract of land under a lease from an administrator. In the lease it was stipulated: “ In case of sale by the party of the first part of any portion of said land before the same shall be in crop or use, such portion thereof shall be excepted from this lease, provided that all…