dissenting :
The defendant in this case had the plaintiff arrested and in-*142dieted upon a charge of obtaining money under false pretenses. Upon the trial of that case he gave testimony as to facts material to the issue, which, according to the testimony of the plaintiff and other witnesses given on the trial of the present case, was untrue, and which a jury could have found he knew to be untrue. The trial resulted in a verdict of guilty, on June 17, 1902. On the twenty-third of the same month, on motion for a new trial made by the attorney for the defendant in the criminal case, the court ordered, “ that the verdict of guilty found by the jury in said case be vacated and set aside, and a new trial granted.” After several postponements, made at the request of the prosecutor, the case came on for trial on April 27, 1903. The prosecutor and his witnesses and attorney were present in the courtroom at the time the case was called for trial, but, by the latter’s advice, no testimony was offered; consequently a verdict of not guilty was rendered. In the course of his cross-examination in the present case, the defendant was asked whether he had not instructed his counsel to try to settle the case for the $500 which he claimed he had been induced by false pretenses to loan to the plaintiff. He replied: “That is what I wanted.” “ Q. That is what you brought the prosecution for; as I understand it? A. For what ? Q. To get your $500 back. A. That is all I brought it for, certainly.”
In view of the foregoing facts, and the state of the record in the criminal case, I am unable to concur in the conclusion that the court ought to have charged that the verdict of guilty was conclusive evidence of probable cause for the prosecution. I have examined all of .the Pennsylvania cases cited in the brief of appellant’s counsel/ and in the exhaustive opinion of our Brother Smith, and it does not seem to me that any of them establishes a rule which governs this case. Outside of this state the authorities? are conflicting as to the conclusiveness of a verdict of guilty, as the citations in the appellee’s paper-book abundantly show. It is held in Pennsylvania that although it is strong prima facie evidence of probable cause, it may be rebutted by proof that it was obtained by corrupt or undue means: Grohmann v. Kirschman, 168 Pa. 189.
In the absence of any authoritative decision of the precise question raised by the facts of this case, I feel at liberty to *143express the conviction that the judge would have been warranted in charging the jury that, if it was established to their satisfaction beyond a reasonable doubt that the prosecutor in the criminal case brought the prosecution in order to force repayment of the loan, and that in the trial of that case he testified, knowingly, falsely and corruptly, to matters material to that issue, the verdict of guilty, which was summarily set aside and was followed by a verdict of not guilty, would not be conclusive evidence of probable cause. I would, therefore, overrule the fourth assignment.
The second and third assignments raise a different question. The defendant claimed that he loaned the plaintiff’s firm $500, under the inducement of his fasle representation that all they owed was about $700, whereas they owed about $8,000. The plaintiff did not deny that they were indebted in that amount, but alleged that the only representation he made was that they had only about $700 of debts that were pressing. He testified: “ I told him what we were doing, and we had about $700 that was shoving us at the present time that wanted to be paid — I mean pushing us, wanted to be paid, and there is nobody had entered any proceeding or anything of the kind at that time.”
The defendant testified : “ He also stated to me at that time that all he owed was about $700 in debts.”
A change of a word would .change the entire purport and effect of the representation. It is not impossible that the defendant misunderstood the plaintiff and acted on the mistaken belief that the latte-r’s representation was intended to be a full and frank statement of the financial condition of the firm. The jury ought to have been permitted to take that view. It would not have been an unreasonable conclusion. If they had adopted it, surely they would have been warranted in finding that the defendant was not chargeable with malice. In making the entire case turn on the question whether the version of the representation given by the plaintiff or that given by the defendant was the true one, and in withdrawing from the consideration of the jury the questions of probable cause and malice, the learned judge inadvertently fell into error.
For the reasons above suggested, I would sustain the sec*144ond and third assignments and send the case back for retrial. Judges Oblad Y and Pobteb authorize me to say that they concur in the foregoing conclusion.