25 App. D.C. 155 | D.C. Cir. | 1905
delivered the opinion of the Court:
Undoubtedly, to maintain a suit for malicious prosecution, it is necessary for the plaintiff to prove both malice and want of’ probable cause. In the ease at bar such malice and probable cause must relate to the prosecution by appellant of the charge of embezzlement.
The appellee was not guilty of embezzlement, because the money was retained without concealment and under a claim of right evidently made in good faith, and whether it was well founded or not is immaterial. If there was any proof of malice and lack of probable cause in the prosecution, it was clearly th& duty of the trial justice to submit the case to the jury. Malice is a question exclusively for the jury, and while probable cause is a mixed question of law and fact, becoming a question of law after the facts are ascertained, and devolving upon the court the duty to instruct the jury as to the law arising upon the facts,, the trial justice, in view of the proofs in the case at bar, would clearly have erred had he granted the first prayer and instructed the jury to find for appellant. There was evidence which required that question to be submitted to the jury. Appellant did
AVe think the jury was warranted in finding want of probable cause. The trial justice was correct in his refusal to grant ■the first prayer. The fourth prayer was rightfully refused by the trial justice. Of the claim made by appellee that the appellant was indebted to him it is not necessary that the indebtedness should have been for a liquidated amount. If it be meant by the term “indefinite amount," employed in the prayer, that it was for an unliquidated amount, the contention is not well
Believing that no error was committed by the trial justice in refusing to charge the first and fourth prayers, it follows that the judgment of the court below should be affirmed, with costs, and it is so ordered. Affirmed.