Wenger v. Phillips

Opinion by

Mb,. Justice Fell,

There is no ground for the complaint that the chai'ge is inadequate and misleading. Tt contains a full and accurate statement of the law applicable to an action for malicious prosecution, and the questions of fact raised by the conflicting testimony were clearly and fairly presented to the jury.

The prosecution was commenced by advice of the district attorney. That this advice was sought in good faith and was based upon a full disclosure to him of all the facts known to the prosecutor was not controverted. That the binding over was after the prosecution was barred by the statute of limitations did not make the defendant liable unless it appeared that he had persisted in the prosecution after he knew it was barred. This did not appear, and there was nothing from which his knowledge could be inferred. The district attorney when consulted asked whether two years from the date of the commission of the offense had elapsed, but he made no explanation of the requirements of the statute, and did not inform the defendant that it was necessary that an indictment should be found within two years.

The plaintiff’s first and second points for charge were properly refused for the reason that there was no evidence to sustain them. They might well have been refused for the reason that if the facts stated therein had been sustained by proof an instruction for the plaintiff would not have been warranted. Proof that a criminal process had been made use of as a means for the collection of a debt is not conclusive in establishing the want of probable cause and the existence of malice. Itis prima facie only, and while sufficient to shift the burden of proof to the defendant it may be rebutted by other proofs : Prough v. Entriken, 11 Pa. 81; Schmidt v. Weidman, 63 Pa. 173.

The judgment is affirmed.