It is not error to refuse the defendant’s fifth point, as its affirmance would have withdrawn the case from the jury. This the court could not properly have done under the evidence. Nor do we find any error in that portion of the charge embraced in the second assignment. The learned judge, after giving very fairly the plaintiff’s version of the case, said to the jury in substance that if this was all the evidence in the case, it would not amount to probable cause. He then, with equal fairness, slated the facts as detailed by the defendant’s wife, and then said: “If the facts of the case are as the defendant’s wife has stated them, there was probable cause,” etc.
The case was submitted to the jury under proper instructions, and while the result may not have been satisfactory to the defendant he has no just reason to complain of the action of the court below.
Judgment affirmed.