Grant v. Moore

Citations

• 29 Cal. 644

Syllabus

<p>Order Granting a New Trial.—If the Court below makes an order granting a new trial, and for any cause the order was' correct, the appellate Court will not set it aside because the reason assigned for it may have been wrong.</p> <p>Malicious Prosecution.—To maintain an action for malicious prosecution, the primary question to be considered is the want of probable cause for the prosecution complained of, and this must be established before plaintiff can recover.</p> <p>Same.—Prom the want of probable cause, malice may be inferred; but from the most express malice want of probable cause cannot be implied.</p> <p>Want of Probable Cause in Malicious Prosecution.—In an action for malicious prosecution, the want of probable case is a mixed question of law and fact.</p> <p>The Want of Probable Cause not to be submitted to a Jury.—In an action for malicious prosecution, it is erroneous for the Court to leave to the jury the decision of the question whether the facts they may find will amount to a want of probable cause.</p> <p>How Jury to be Instructed on Want of Probable Cause.—In an action for malicious prosecution, if the facts are doubtful, the Court should instruct the jury that if they find the facts in a certain way, there was no probable cause, and their verdict should he for plaintiff; hut if they find in another way, there was probable cause, and their verdict Should he for the defendant.</p> <p>When there is Probable Cause.—If, in an action for malicious prosecution, it appears that the defendant had a cause of action in the case alleged to have been maliciously brought, although for a much less amount than claimed, there was probable cause, and the Court should grant a nonsuit.</p> <p>Plaintiff must drove Want of Probable Cause.—In an action for malicious prosecution the burden is on the plaintiff to show affirmatively a want of probable cause.</p>