The appellee purchased certain goods from Mrs. W.J. O'Bryant, the owner and operator of a store in the city of Laurel, Mississippi. In payment for these goods he tendered a check signed by one Malcolm West, a resident of the city of Laurel. After a consultation with her husband, the appellant, W.J. O'Bryant, who assisted in the management of the business, Mrs. O'Bryant took the appellee's address in the city of Laurel and accepted the check.
On presentation of the check at the bank the following morning it was not paid, and thereupon Mrs. O'Bryant proceeded at once to the address which the appellant had furnished her, which was the home of the mother of the said Malcolm West. There she found the appellee, and at her suggestion or request he accompanied her to her store for the purpose of making some arrangement to take up the check.
After some parleying between the parties, an officer was called to the store, and this officer accompanied the appellee to a point in the business section of the city where he claimed the said Malcolm West had agreed to meet him.
Within a short time, having failed to find West at the designated place, they returned to the store, and thereupon, under direction of, and accompanied by, the said W.J. O'Bryant, the officer carried the appellee to the office of a justice of the peace, where the said W.J. O'Bryant executed an affidavit charging the appellee with the forgery of the check in question.
The appellee was thereupon formally arrested and incarcerated in jail, where he remained for ninety-three days, and until after a grand jury had convened and failed to indict him. After his discharge from jail, the appellee sued for malicious prosecution, and from a verdict and judgment in his favor this appeal was prosecuted.
Upon the trial of the cause, the said Malcolm West, the purported maker of the check, was introduced as a witness, and he testified that he was indebted to the appellee for labor performed, and on that account he signed the check and delivered it to him.
All the facts in evidence *Page 780 demonstrate the total absence of probable cause for the arrest or prosecution of appellee on a charge of forgery, and the appellant practically admitted what the testimony very clearly shows, that is, that the prosecution was for the purpose of using the criminal process of law for the collection of a debt, which, as said in the cases of Odum v. Tally, 160 Miss. 797, 134 So. 163, and Grenada Coca Cola Company v. Davis (Miss.), 151 So. 743, decided January 8, 1934, supplies the necessary element of malice.
Upon the facts, we think the appellee was entitled to the peremptory instruction on the issue of liability which he requested, and, in consequence, the errors complained of become immaterial. Affirmed.
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