ground, nor was objection to the verdict as excessive made in the trial court. The general practice is that, unless a motion for a new trial upon that ground is made and denied, the question will not be considered in this court. In the case of McDonald v. Steel Co., 140 Mich. 401, 413, Justice BLAIR, speaking for the court, said: "A verdict which has no evidence upon which to base it is, in law, erroneous, and error can be assigned upon it without making a motion for a new trial." That case was distinguished from Hunn v. Railroad Co., 78 Mich. 513 (7 L. R. A. 500), and Coots v. City of Detroit, 75 Mich. 628 (5 L. R. A. 315). Speaking of the case last cited, the court in the McDonald Case, supra, said: "Plaintiff was seriously injured, and was entitled to recover for pain and suffering, as well as for the loss of time and incapacity to work. In such cases the amount of compensation rests entirely in the sound judgment of the jury, and can only be considered where a motion is made for a new trial and denied. In such cases the court very properly said: 'Whether damages found by a jury are excessive or not does not present a question of law."" There was evidence in the case at bar upon which to base the verdict of the jury. The question presented to this court is therefore not a question of law. We find no reversible error in the case. The judgment is affirmed. CARPENTER, GRANT, BLAIR, and MONTGOMERY, JJ., concurred. 148 650 e150 5689 SLATER v. WALTER. 1. ACTIONS-JOINDER-SLANDER-MALICIOUS PROSECUTION. A cause of action for malicious prosecution and one for slan-` der may be joined in one suit. 2. SLANDER-PRIVILEGE-APPEAL-THEORY BELOW. Where a slander case was not tried on the theory that the words complained of were privileged, it will not be reversed by this court on that theory, especially where, from defendant's own testimony, it appears that he repeated the words on some occasions when they were clearly not within the protection of the rule. 3. SAME-NOMINAL DAMAGES. Where defendant does not justify the truth of the slanderous 4. MALICIOUS PROSECUTION-Defenses—Advice of CounSEL. 5. TRIAL-INSTRUCTIONS-SPECIFIC CHARGE- THEORY SUPPORTED Notwithstanding the jury are correctly instructed upon the general propositions of law governing the case, a party is entitled to have given a request embodying a specific charge, hypothetically stated, of his theory of the case, if supported by the evidence. 6. MALICIOUS PROSECUTION-SPECIFIC INSTRUCTIONS-NECESSITY. In an action for malicious prosecution in complaining of plaintiff for assault with intent to rob, it was error to refuse an instruction, supported by the evidence, stating under what circumstances defendant would be justified in making such a complaint. 7. SAME-INSTRUCTIONS-Probable CauSE. In an action for malicious prosecution general instructions defining probable cause, without a statement of what facts in the case if found by the jury will constitute probable cause, or show a want of it, are insufficient. Error to Kent; Perkins, J. Submitted February 14, 1907. (Docket No. 139.) Decided July 1, 1907. Case by Irving O. Slater against Alexander A. Walter for slander and malicious prosecution. There was judgment for plaintiff, and defendant brings error. Reversed. Smedley & Corwin and Edward N. Barnard, for appellant. O'Keefe & Gannser (George C. Brown, of counsel), for appellee. MCALVAY, C. J. Plaintiff instituted suit by capias ad respondendum against defendant, afterwards filing a declaration containing two counts-one for slander, and the other for malicious prosecution. A plea of the general issue was filed. Defendant is a practicing physician, residing in Grand Rapids. Plaintiff, an electrician and salesman for a Chicago firm, came to Grand Rapids August 29, 1904, from White Lake, Mich., where he had been spending a short vacation with his wife. They went to the Hotel Pantlind. He was short of money, and started out to solicit business. He called upon defendant that afternoon, and an agreement was made to repair defendant's X-ray machine for $5. He was given the key to the office, and worked upon it that evening. The next morning defendant was not satisfied with the work, claiming it was not as agreed. Plaintiff asked for and received the advance of $1 to get a breakfast for himself and wife. Later he returned with his wife, and a dispute arose about the work done on the machine. During the dispute plaintiff sent his wife back to the hotel. Defendant claims that finally plaintiff made a proposition to settle for $2 in addition to the $1 advanced, which agreement was accepted, and the money paid; that plaintiff, who had started to leave the office, suddenly turned around and struck him violently on the head with his fist, and at the same time grabbed his watch chain and pulled his watch from his pocket, but did not get the chain loose from his vest; that the plaintiff then escaped, running down the stairs; that defendant, when he recovered from the effects of the blow, went down to the street, followed the crowd after the plaintiff, and cried out, "Catch him! He tried to kill me, to rob me." Plaintiff ran into an alley and escaped. Defendant returned to his office for his coat and hat, and went to a doctor's office for treatment of his injury, which he claimed was severe. Returning, he met à police officer, who, upon hearing his complaint, told him he must have a warrant in order to arrest the man, and directed him to the prosecuting attorney. Defendant went as directed, stated his case, and the prosecutor drew up the complaint, and sent him to the police court, where it was signed, sworn to, and a warrant issued. Plaintiff was arrested shortly afterwards and locked up. He secured bail in a few hours. The following morning his examination was held, and he was discharged. This litigation is the result. Plaintiff denies that he proposed to settle for $2, claiming that he thought defendant was paying him $4 until he counted the money, when he demanded the balance; that defendant told him to leave his office, which he refused to do; that defendant took hold of him to push him out, and he then struck him a slap on the face. In other respects there is no material difference between the parties as to what occurred. When the matter came up in the police court, defendant in the anteroom repeated the language used by him on the street after the assault was committed. These are the statements relied upon in the count for slander in plaintiff's declaration. Plaintiff recovered a verdict of 6 cents damages for injury to feelings under the charge for slander, and for malicious prosecution the sum of $500. Of the errors assigned in the case upon which defendant asks a reversal, we will first consider the action of the court in refusing to require plaintiff to elect under which count of his declaration he would proceed; it being claimed that causes of action for malicious prosecution and for slander cannot be joined in one suit. In the case of Cadwell v. Corey, 91 Mich. 335, it was held that such joinder was proper, and that the trial court should not have compelled plaintiff to elect under which counts he would proceed. A like joinder of causes of action appears in McLeod v. Crosby, 128 Mich. 641, but it does not appear that the question of improper joinder was before the court. Such practice is approved by Chitty. 1 Chitty on Pleading (16th Am. Ed.), p. 222. The court charged the jury to find for the plaintiff upon the slander count at least nominal damages for injury to feelings only; he having waived actual damages. Appellant in his brief insists that the words counted upon as slanderous were privileged. The case was not tried upon that theory; and, although it may be said that the occasions when they were first spoken might well bring them within the rule of privilege, yet from defendant's testimony it appears there were other occasions when they were repeated by him not within the protection of that rule. Defendant did not justify the truth of the words uttered, so the case under the proofs on the slander count justified the direction of the court that at least nominal damages should be awarded plaintiff. As before stated, the jury found damages to plaintiff's feelings 6 cents. Defendant asked the court at the close of the case to direct a verdict in his favor on the count for malicious prosecution, for the reason that plaintiff had not shown any malice, and that there was probable cause, and that on the undisputed facts there was enough to warrant defendant in going to the prosecuting attorney which would be a complete defense. This motion was denied, and error is assigned upon such denial. An examination of all the evidence in the record bearing upon this proposition satisfies us that we cannot say that these facts were undisputed. Where there is evidence, however slight, |