Herzog

to recover damages for an alleged malicious prosecution. The jury gave the plaintiff a verdict for twelve thousand dollars. The court below granted a new trial on the ground of excessive damages, and because the verdict was not sustained by the evidence and was contrary to the law and evidence. The evidence was conflicting as to the want of probable cause. In case of conflict, it has been held by this court that it would not interfere with the order of the court below granting a new trial. In Dickey v. Davis, 39 Cal. 565 , the court said: “In this court, when there is a substantial conflict in the evidence, we decline to set aside a verdict or finding of facts as being contrary to the weight of evidence, solely because we have had no opportunity to observe the manner of the witnesses, and to decide upon their credibility. But this reason does not apply to the district judge, and though it is the peculiar province of the jury to decide upon the facts submitted to them generally, in doubtful eases the verdict ought not to be set aside as contrary to the weight of the evidence. Nevertheless, if the judge is not satisfied with the verdict, and is convinced that it is clearly against…