Diemee v. Herber

Foote, C. —This is an action for damages for a malicious prosecution.-

A jury was impaneled to try the issues joined, and evidence was introduced on the part of the plaintiff. Thereupon the defendant moved for a nonsuit, and it was granted. From the judgment therein given and made, and from an order refusing a new trial, this appeal is prosecuted.

The facts of the case, as they appeared in evidence, are as follows: The plaintiff and the defendant got into a discussion as to whether any watch could be found in San Francisco which would run longer than a week without being wound up. The defendant was willing to bet five dollars against a hundred that no such watch could be produced. Finally the parties each bet and put up a hundred dollars, the plaintiff betting that sum that he could, and the defendant betting that he could not, produce such a watch. Then the plaintiff produced a watch that he said would run longer than a week, and was told by the defendant to take the money which had been put up on the wager.

The plaintiff, in accordance with this permission and request, took the money and went out of the defendant’s premises. In a very few minutes the defendant sent a messenger after him to bring back the money, or he would be arrested. The plaintiff, thinking he had won the money fairly, treated the demand with scorn. Afterward, through his attorney and others, the defendant endeavored to induce the plaintiff to return the whole, and then a part, of the money, one of the propositions [289]made being, that if the plaintiff would pay back fifty dollars, the defendant would “have it published in all the papers in San Francisco that he was wrong.” Finally the defendant and one McPherson came to the plaintiff to see him about the matter, and were told that the plaintiff would not pay a cent.

Then the defendant had the plaintiff arrested, and after a preliminary examination he was bound over to the superior court to answer a charge of grand larceny. An information was duly filed against the plaintiff, accusing him of that crime in stealing one hundred dollars from the defendant. This information was dismissed upon motion of the prosecuting attorney, for the reason that there was “no evidence to convict.” The plaintiff then instituted this action.