The opinion of the court was delivered, January 3d 1870, by
Sharswood, J. —The assignments of error are twenty-three in number. However, as the counsel for the plaintiffs in error have very properly, in their brief of argument, relied only upon two points, we may dismiss the others without examination.
The first of these is, that the court erred in refusing to affirm the several points of the defendants below, to the effect that Weidman had no authority to compromise the claim which the defendants put in his hands for collection; that he was really attorney for Berger, and not for Schmidt; that his deposit of the money in the hands of Dicken did not discharge his liability; that he had retained more money than he was entitled to for fees, and that he had in other respects made himself civilly responsible to the defendants.
The plaintiff below was an attorney at law, and brought this action against the defendants to recover damages for a malicious *177prosecution. It appeared that Schmidt was indebted to Berger for board, and having in his possession a note of a third person for $260, he passed it to Berger, who agreed to accept it, provided Schmidt would be at the trouble and expense of collecting it. For that purpose Schmidt placed it in the hands of Weidman, the plaintiff, who sued, obtained judgment, and issued execution : but in the exercise of what he supposed a sound discretion, in the absence of Schmidt from the city, compromised the claim by accepting the face of the note without interest and costs. Schmidt being absent, and Weidman about to remove and settle in New York, he deposited $100, after deducting thereout the costs he had paid and the amount of fees due him by Schmidt in that and other business which he had transacted for him, in the hands of another member of the bar, J. Charles Dicken, and addressed a note to Schmidt informing him that he had done so and requesting him to call on Dicken for the money. This note was delivered to Schmidt when he returned to the city, and he did accordingly call on Dicken. Whether Dicken then denied or admitted that he had the money was a matter upon which the evidence was contradictory. It was left to the jury to say, and as it was to some extent the turning point on the question of probable cause, we must conclude from the verdict, that they believed that he had admitted it, but put off the payment for some reason, whether good or bad is immaterial. The defendants immediately commenced a criminal prosecution before the mayor of Pittsburg, took out a warrant; one of them proceeded, in company with an officer, to Harrisburg, there procured a requisition on the Governor of New York, went to the city of New York, where Weidman was arrested, and agreed to accompany the party to Pittsburg without waiting for authority from the Governor of New York. On their arrival at Pittsburg, after a hearing before the mayor, Weidman was discharged.
It is evident from this statement that the learned judge below could not lawfully be required to give his opinion to the jury as to whether Weidman was civilly responsible to Schmidt or Berger or to what extent. Such liability, if it existed to its fullest extent, was not probable cause for instituting a criminal proceeding, nor could the resolution of the legal points presented have borne upon the question of malice, or in any way have assisted the jury in determining the issue. To have affirmed them would in all probability have misled them by turning off their attention from the true questions in the cause. They had all the facts before them, and it might be assumed that the defendants honestly believed that Weidman was liable to the full extent claimed, whether in law he was so or not. That would not show probable cause for the institution of a criminal prosecution for embezzlement, unless there were some facts tending to create a belief that Weidman had embezzled the monev* On the contrary, if a party commences a *178criminal proceeding merely for the purpose of compelling his debtor to pay a just debt, it is primá, facie evidence both of want of probable cause and of malice, and shifts the onus upon the defendant: Prough v. Entriken, 1 Jones 81. Whether the facts in evidence were sufficient to induce a reasonable man, not actuated by passion, prejudice or other improper motive, to believe that the plaintiff intended fraudulently to apply the money he had collected to his own use, was fairly submitted to the jury by the learned judge below.
The second ground relied on is the answer to the fifth point. The learned judge remarked, after answering the point, that-the repetition of the question whether Weidman retained more than he was entitled to for fees, in so many different ways, in the several points, made it look a little as if the prosecution had been commenced for the purpose of collecting money alleged to be due from Weidman, which he denied. Such a remark is certainly not to be approved. But we cannot see that the defendants could have been damaged by it. The language of a judge in referring to the course of defence is no more to be critically scanned than his comments upon the evidence, provided it sufficiently appears that the questions of fact were fairly submitted to the jury. Now the judge distinctly put it as a question of fact exclusively for them, “ were the defendants actuated by an honest zeal for the public morals, or was it done for the purpose of extorting money, which they alleged was due and improperly held by the plaintiff? Do or do not the facts in evidence show that Schmidt’s sole aim and object was to extort from Weidman the money he had collected ?” If the remark of the judge is open to criticism so was the course of the defence in presenting the same point in so many different forms, a course always embarrassing to a judge called on suddenly to answer. We see no error in this record for which we ought to reverse.
Judgment affirmed.