¶1(after stating the facts). 1. The defendant was permitted to testify that he told his attorney all the essential facts, and that the suit was brought and affidavit made upon the advice of his attorney that the facts stated were sufficient to justify the affidavit and arrest upon a capias. This was objected to because no notice was given, with the plea, of the defense of probable cause. Counsel cites and relies upon White v. McQueen, 96 Mich. 249, 253 (55 N. W. 843). In that case the plaintiff was arrested without a warrant and incarcerated. The following day, complaint was made against him for a misdemeanor. The defendant sought to justify his arrest by showing that he had probable cause to believe that White had been guilty of a felony. This was held inadmissible under the general issue. That case has no application to a case like the present, where the declaration sets out fully the affidavit, warrant, and records of the suit the institution of which is claimed to be malicious. In such case the plea of the general issue covers the defense of probable cause. 13 Enc. PL & Prac. 458.
¶22. It is urged that there was no proper proof of title in defendant and Loveless to the land on which the trespass was charged. The parol evidence of title was not objected to, and the court was not asked to charge upon this point. Plaintiff will not, therefore, be heard in this court to make the claim.
¶3*6713. Plaintiff requested the court to instruct the jury that “‘the Willful overstatement in affidavit for capias of amount of timber taken by plaintiff off of land by plaintiff in former suit is competent evidence of malice on the part Of the defendant in this action for malicious prosecution.” The request involves clearly a statement of fact, viz., that the affidavit contained an overstatement of the' amount of timber taken. This was not a fact conclusively proven. It was a question for the jury. If the request had been to instruct the jury that, if they found such overstatement, it was competent evidence of malice, the request should have been given.
¶4The judgment is affirmed.