19 Tex. 118 | Tex. | 1857
It is a rule of the Common Law, that a plea
But if the Court rightly sustained the exceptions, and held the plea insufficient to admit the evidence, still it was rendered admissible by the plaintiff’s averments. He distinctly alleged that there was no affidavit or warrant, under which the defendants acted, and thus tendered that issue; and the defendants were at liberty to introduce evidence to disprove the plaintiff’s averments. The evidence was material; for although it did not justify the arrest and imprisonment of the plaintiff in Louisiana, it showed that there was lawful authority for his imprisonment in Texas. (State v. Smith, 1 Bailey’s Rep. 289;
As this error must work a reversal of the judgment, it is unnecessary to discuss the other questions raised by the argument for the appellants. It is clear, however, that there was no evidence to warrant the verdict as to any of the defendants except J. J. Boynton. None of the others are shown to have been party or privy to any illegal or unauthorized act or proceeding. Their having requested the witness to go to the Sheriff and to the residence of their co-defendant, in Harrison county, did not warrant the inference that they caused or procured the arrest of the plaintiff in Louisiana, or that they instigated, or contemplated the doing of any illegal or unauthorized act. As to them the motion for a new trial ought on this ground to have been sustained.
The judgment is reversed and the cause remanded.
Reversed and remanded.