delivered the opinion of the Court:

Undoubtedly, to maintain a suit for malicious prosecution, it is necessary for the plaintiff to prove both malice and want of’ probable cause. In the ease at bar such malice and probable cause must relate to the prosecution by appellant of the charge of embezzlement.

The appellee was not guilty of embezzlement, because the money was retained without concealment and under a claim of right evidently made in good faith, and whether it was well founded or not is immaterial. If there was any proof of malice and lack of probable cause in the prosecution, it was clearly th& duty of the trial justice to submit the case to the jury. Malice is a question exclusively for the jury, and while probable cause is a mixed question of law and fact, becoming a question of law after the facts are ascertained, and devolving upon the court the duty to instruct the jury as to the law arising upon the facts,, the trial justice, in view of the proofs in the case at bar, would clearly have erred had he granted the first prayer and instructed the jury to find for appellant. There was evidence which required that question to be submitted to the jury. Appellant did *160not prefer the charge in hot blood. He was deliberate in all his actions. The appellee had been in his employ for something like three years. He was a man of good reputation. He had been trusted by appellant for a year and a half with the small ■sum he was charged with embezzling. He had been discharged without notice and for a trivial cause. There was enough in •the facts to warrant the consideration by the jury of the question of malice. The appellant relies upon the advice of counsel as establishing probable cause. It was a question for the jury to say upon the evidence whether the advice of counsel was sought and acted upon in good faith, and whether there was a foil and fair disclosure of the facts. The third prayer, being ■one of those granted by the trial justice, correctly stated the law which should govern the jury in the consideration of the facts offered to prove probable cause. We think the charge was all that appellant was entitled to on the question of probable •cause. Even conceding that the jury should not have been permitted to consider the evidence relating to probable cause, and that it was the province of the court to say that all the material facts had been stated by appellant to counsel and that he had acted in good faith, we may ourselves inquire whether there was probable cause, and, if so, refuse to reverse the judgment. In Pangburn v. Bull, 1 Wend. 345, Judge Woodworth said, in referring to this question: “Still when the question of probable cause is submitted to a jury, who find for the plaintiff, and this court, on a review of the case, are satisfied that there evidently was a want of probable cause, and that the jury have not ■erred in point of law, the judgment will not be reversed for the error of the court in submitting the question to the jury."

AVe think the jury was warranted in finding want of probable cause. The trial justice was correct in his refusal to grant ■the first prayer. The fourth prayer was rightfully refused by the trial justice. Of the claim made by appellee that the appellant was indebted to him it is not necessary that the indebtedness should have been for a liquidated amount. If it be meant by the term “indefinite amount," employed in the prayer, that it was for an unliquidated amount, the contention is not well *161founded. If it means something else, then the term itself is subject to the criticism of being indefinite. Furthermore, the prayer was not one that could have been correctly granted, for, though appellee’s claim may have been “unfounded,” the question of his good faith in making it was also to be taken into account. The prayer was too indefinite and uncertain to be granted.

Believing that no error was committed by the trial justice in refusing to charge the first and fourth prayers, it follows that the judgment of the court below should be affirmed, with costs, and it is so ordered. Affirmed.