*1 v. Saider. Cohn [71. excuse from attendance. board must have been her the school the attendance children who was intended to secure statute board. able, the school not confer arbitrary power upon in bed was confined a whose child during parent To require excuse, secure an would be idle formality. for and apply year intent the law. The evidence Such and its exclusion was error. competent, sustained. Exception All concurred. Merrimack, 4, 1902.
Dec. a.
Cohn v. Saidel & v. Same. Same prosecution, question exclusively In an malicious is action for malice one cause, jury, prohable depen- as is also the far so as it is credibility dent the evidence. conspirator design, aof with reference to the common Declarations made associate, competent latter, his axe absence evidence court, admitted in the discretion con- before fact of spiracy has been established. charged prosecution may A defendant with malicious show that in- he was
(cid:127) bring parties. duced to his action what learned from third plaintiff voluntarily The mere fact that a became nonsuit does not warrant cause, finding subsequent a of want of a prosecution. malicious setting It is a sufficientcause for aside verdict for the in an action for prosecution, given jury might malicious that from instructions reason- ably have concluded the defendant was liable his suit was regard maliciously, without of want of cause. prosecution Where the an action for malicious tends to show conspiracy business, the existence of in his the men- thereby suffering may properly tal caused be considered the assessment damages. questions dispute dependent When the decision of material upon evi- which, uncontradicted, although true, dence is not admitted to be their de- province jury. termination within Case, for malicious prosecution. Both actions were tried to- term, 1901, at the October gether superior court, before Stone, J., verdict. jury, Sajixkl. between tbe Tbe declarations alleged conspiracy *2 in to his business. For some and one Clark plaintiff 17, 1899, the and the defendants were to April plaintiff time prior Concord, business the former tailoring partners having business. On that the defendants day shop charge 11, $250. to the for their interest therein On July sold 1899, the defendants two suits brought against was attached and sold under the statute the officer. his stock by of the actions so One brought by against plain- for deceit in the tiff was of the defendants’ interest purchase business the other was the com- partnership assumpsit upon mon counts. On the same Clark suit day contract, and for breach of attached his stock trade. 1899, term, three suits entered at The were the October and con- term, 1900, tinued. At the were marked tbe April but the defendants became vol- by present plaintiff, present therein, nonsuit and thereafter the costs. untarily paid evidence, The defendants to that after excepted they brought their suits to induce one a wholesale they attempted Spaulding, Boston, not to furnish and that dealer goods plaintiff; nonsuit, Saidel, after the defendants became soon Leon one of the defendants, told another witness lie had made it cost sum, and he did not want to the eases into court and quite carry to risk costs. having pay prior Davis, a was asked to deponent, (Bit. July 4) Saidel, lie heard conversations between Leon Clark and else, one He suits Cohn. any regarding bringing he had heard several replied conversations between Clark former, Clifford one suit and that on some of regarding these occasions Leon Saidel was The conversations testi- present. to tended fied that Clark and Saidel were influenced malkse, and that their were Colm to be for tbe joined the claim as him as making large possible driving out of business. The and answer were read subject tbe defendants’ the admission of conver- exception sations which took in the absence of Saidel. place and answers contained in questions Davis’ following deposi- tion were admitted to tbe ex- defendants’ subject : ception “Bit. 6. What reason Clark Saidel desiring give Well, in as Avs. the idea that after suit
put you keeper? removed, could were use the place goods do business in. “ Bit. 7. And them in how was to assist your acting keeper ? business in that What did to have doing place they propose you do, as stated Ans. I was you? to be keeper them; same time do business for do cutting; business tailoring there. “ Int. 8. You state who was took present conversation or conversations which the intention was expressed the claim Cohn so that it making would drive heavy business, out of and Clark and Saidel could get place Clark, Clifford, business. Ans. Mr. Saidel, Mr. Mr. and myself Mr. Clark present. exclaimed in his manner emphatic he would bond; have such amount that could any get he could do he would business; out of nothing; go we could take the store and do file- what business we wanted in store, and he would drive that fellow out of this town.
“Int. 10. You state to an may whether Clark and Saidel came as to the agreement their in one proposition claims combining suit; so, and if whether not to decided to do it or they try make the there, Ans. I know one time when Mr. attempt. Clark up store, the first of one he over came my being morning said, Saidel, and Mr. ‘Mr. Clark we law- will down and see the go yers and have the fixed to- at both thing right up, go right gether.’
“Int. 46. You state about conversations suit for the purpose Cohn out 'of business bringing driving ceased or continued after Clark and Saidel had abandoned the idea of in their claims Ans. not suit. ’did joining single They cease until found out Mr. after were powerless to obtain they they Cohn’s found could of busixxess. that out. Mr. Clark place They hold of the business as he he could. He get thought thought of busi- he could in Mr. and remove Cohn and his go get place ness.” The defexxdants that the had alleged pres- plaintiff brought cause,
ent suits without and in maliciously support contentioxi offered in fact this evidence the that he had bought of oxieFoster dollars, claim the defendaxxts against twenty amounting thereon, had suit and had made an attachment in brought excluded, the suit. The ex- also to the of the court cepted. They excepted railing permitting to the to send room the Leon plaixitiff deposition of, axid the Saidel denial of their motion complained Saidel, that a be directed for Isaac one verdict of the defendants. that, Leon Saidel testified before the defendants their suits, that the said Clark told them plaintiff prior buying had taken out he out of the stock the heavy-weight defexxdants small; and black so that the stock goods goods, appear and had that he had collected not accounted for a sum large Saidkl. H.] $500 $600 had Saidel there was firm’s told money more; stock, and that when in fact it was worth a deal great he had said due were not when fact they the accounts good, further this were collectible. Saidel testified that upon receiving' counsel, information lie all he know about consulted told him; had his tlie matter and all that Clark told counsel advised defendants causes of action good and that acted that advice plaintiff; upon, bringing their actions. This was not contradicted. testimony directly Evidence of conversations between Clark and Saidel in the absence was admitted to the latter’s subject exception. to a denial a motion that verdict excepted favor, be directed also to refusal of the court to certain instructions set forth give specific fully' opinions. material, So far was as follows: charge “ N ow we come to the this ease. The here gist brings suit the Saidels because he those two suits says they brought — that with Clark and those maliciously they conspired him, him, him out of maliciously drive business, . and to hurt . . without reasonable cause. feelings, This is the . to determine. . . tlie you Regarding Saidels, issue, real did these on the 11th day July, suit, as set forth in this with Clark to conspire Colin, him, these suits for tbe bring injuring business, him in breaking him; and otherwise up and did injuring do it That . . . falsely maliciously'? question. *4 In whether determining these suits they brought maliciously, you will recall the offered, evidence that the . . has . yon will recall the who witnesses have here on tlie one side appeared testimonies, or the other and their recall and ascertain the Saidels at that time entertained and malicious if feelings; they suits, did, whether such actuated them in these feelings bringing if they' brought to and maliciously intending oppress man, injure liable, this must be they and would bring to the yon which T question will of later. damages, speak Now the introduced his own the deposition testimony, Davis, the record and the full record of ail their busi ness. That is the evidence that in and plaintiff puts relies to show that the had Saidels malice in their hearts toward him, and that on account such malice their suits they brought maliciously' to him. ... I intending injure wish to illustrate to a you Foreman, of law. Mr. principle you honestly thought I bill, that was and bad owing that I you reason to believe good and believed would owing you, you liave to right bring suit me in the exercise such and and care judgment vor.. lxxi. exercise, business would in as man
calculation average your so would not be liable for suits. Suits of you bringing place, have are Men to every that character brought day. right them, collect due and to suits to claims settle matters that bring have no to where suits controversy; they right bring have claims. So the no will come know they they up here: Did Saidels have reason consideration for your good had a claim substantial Cohn? If the Saidels believe thej them, Cohn owed and the exercise of honestly thought average had and reason so they thought, right bring prudence suits, there, to determine. you gentlemen, something the defendants these Tbe plaintiff says brought maliciously, it. will that the evidence shows You whether that say and says not; you is so got weigh right case, because there is test of this closely, there pretty right fact, . on evidence before . . is a question you, determination, . and not for the . . I court. What mean your is, that if on this branch of case had instruct Saidels you the truth to believe on which cause allegations no probable based, or, which if the comes to same their actions thing’, no believe what forth had set Saidels they true, did what with malice and to writs to they liable, will would come you the plaintiff, they find, stated, If ... should I have you damages. faith, their suits acting upon good would enable man facts as reasonable any such knowledge act, malice, acted in faith are not or if without good they If a cause of ... person maliciously prosecutes liable. good law for manner provided by action recovery damages therein, no because there is no That there is remedy wrong. had a substantial cause of if these hated good, parties indeed, much and for that reason very this plaintiff actions, would not be liable. I one owe Suppose you their hundred dollars due, defence, there is no to which note is me; me, . . . do not like you suit against bring you dislike, the suit do with something perhaps, bringing kind, me; not reach because I could suit of you by ... have had a me. just ground you *5 to the the would come question should damages, you receive for all he has been injured. entitled to compensation malice has the fraud and one been . . . Where damaged through — him. liberal another, law allows liberal more the damages the has the where been than simply damaged damages to A man do a reference certain act with may of another. other; do result to man injury may another which may N. H.] act toward a fellowtnan which he had do; no
certain he right it and do it result carelessly, ignorantly, may damage so, If that man the that man. has suit and recover right bring and would recover what he has been damages, simply damaged But in dollars cents. the man suppose doing damage with an intent willfully, maliciously, wickedly, willfully man; then the other that could be injure damages recovered on a . would be more liberal scale. ... . . should find you faith, the Saidels did not act but acted good maliciously, intending contriving oppress be entitled to recover on more liberal scale if than he would their actions were about care through or The lessness court also read from the ignorance.” opinion II. Bixby Dunlap, upon charging question damages. The defendants to the of the objected held charge malicious, liable suits were upon the ground liable, even if malicious, were the suits were if they cause of action. also probable They objected charge on the The overruled, question objections damages.
the defendants excepted. Morrill, Niles
Sargent, the plaintiff. & Howe, Martin for the defendants. & C. J. The refusal to direct a verdict for the defend-
Blodgett, ants was No proper. question of the sufficiency plaintiff’s raised, declaration it was being only essential to the maintenance of his action that he should satisfy proceedings him instituted the defendants were malicious with- out cause. The existence of malice is always exclusively for the so is the jury, so far as it is dependent upon of the credibility evidence which has been its given disprove existence. Hence, al- in an action for malicious though it is a prosecution complete defence that the defendant acted faith and good advice law, learned in counsel after fully and fairly laying case him, before the court no and will not undertake, right, to pass credibility with all the inferences which could it, in draw from justifiably respect these require- ments. exception Spaulding’s no testimony requires examinar tion. It was manifestly competent; so was testimony witness, that soon after the defendants became nonsuit Loon
564 Saidel. v. sum, a him the he had made cost plaintiff quite told Saidel into court and want the cases satisfied and didn’t to carry the costs. pay risk having 4, to all talk (Int. Davis’ defendants’ exception The deposition) about Clark, defendants were not joining when the present, business, is not out driving suits sustainable. trouble, if with was not real the evidence The any, was made of Clark’s talk which was excepted not absence, a but that the fact of defendants’ conspiracy was received. been established when evidence sufficiently “ established fact been proved, When conspiracy inference, of one conspira reasonable the acts declarations of, to, the common or made with reference furtherance tor 6 Am. associates.” are admissible evidence his design, 866, cited; there Law and numerous cases Enc. & Eng. ed.) (2d such 514; Parker, 367. Whether Ib. 43 H. Page 11 or had not definitely appear had been does given proof but on not, had if it had if the been put even objection received, because the requisite was'properly ground, of the trial. Gr. furnished at subsequent stage might proof Ev., s. 111. 6, 7, 8, and 46 The defendants’ interrogatories exceptions overruled, and also the rejection their exception one Poster a claim of that the offer brought defendants, suit and dollars twenty Their made attachment said suit. ruling exception room court to send to plaintiff in the permitting of was complained properly Leon Saidel deposition notice; no further not insisted at the requires argument, direct a verdict for that to the denial their motion to nor does Isaac told
The as to what Clark testimony plaintiff’s exception absence, cheat defendants in and with reference to his them in business defrauding copartnership ing purchase therein, unfounded. of their is very clearly interest Beals, 518, 520; 44 N. H. Keasor, N. Carter v. Eastman v. 44 H. “ 408; Ev., Wilkes, ; 2 s. 454. When Dinsman v. 390 Gr. How. is in compe the motive of an act question, party doing he learned what to show that he was do the act by tent induced to Beals, third from Carter v. parties.” supra. “ The that the be instructed defendants’ request these failure of mere prosecution, want of prob- not establish does cause,” failure of those should have been able granted. step “but a short suits, to be necessary proved, though *7 565 Cohn v. Saidel. H.] toward tbe maintenance of action for malicious prosecution.” Gerry, in Shaw, J., Cloon v. 201. “In case C. of Gray every suit, it an action a malicious or must be averred prosecution the the and that instituted has proved proceeding plaintiff failed; its failure been be has never held to evidence of either cause; malice want of much that or less conclusive probable J., Sonneborn, of those Stewart 98 U. S. things.” Strong, cause,— In 195. the the probable determining case,— vital that most the is manifest tbe would point jury be to the failure of the defend likely very give great weight ants’ the and that therefore the defendants plaintiff, received, to and were entitled should have the benefit the in them, struction not was this denied but the requested; only jury were loft uninstructed on and free to such wholly this draw point to them and inferences as seem which could not might proper, well be otherwise than the prejudicial defendants. highly
The defendants further the court instruct the requested jury actions, that “to maintain the the present (inter must plaintiff alia) the evidence of exist- by satisfy jury preponderance case, ence of the essential elements of viz.: the de- that (1) fendants acted the suits maliciously bringing that acted, plaintiff; defendants the suits bringing (2) without cause. The probable upon cause does not whether the probable depend plaintiff writs, of the offence guilty defendants’ but depends charged wholly defendants’ honest belief upon plaintiff’s guilt, based reasonable upon defendants were at ground. liberty act and if the upon appearances; facts were such apparent that discreet and led to be the belief that prudent person of, plaintiff done the acts complained not liable this will bo for the defend- your verdict ants, whole evidence believe that the although you may not of, did do the acts defend- tbe complained ants were mistaken in their belief did.” Tbe that he court defendants, give particular instructions requested and the defendants excepted.
Their law, exception must be It familiar sanc- sustained. so that, tioned as not to an action by authority questioned, malice, malicious either prosecution, implied, express want of concur; both cause must that while malice cause, inferred from tbe want of want of such cause be inferred cannot from even any degree court, malice. But on tbe express tbe contrary, explicitly charged that, tbe malicious, found the defendants’ suits were — that alone maintain was sufficient to plaintiff’s Cohn “ in- exact they brought maliciously language being: man, must be liable.”' injure oppress
tending introduced And “Now his own testimony, again: Davis, the record and the full record the deposition That all their business. is the evidence plaintiff puts relies show the Saidels had in their malice him, toward on account such malice they hearts suits, him.” And intending maliciously “ The these suits- says still maliciously, again: that the shows it. You will say says *8 not; and to that is so or have the evidence you got weigh hr there the test there because closely, right pretty right It that of the an this case.” is true other parts approxi- charge found; this can- correct of the law may statement mately not be held cure the error in for it to emphatic question, plainly case and rather to and involve the in intricacy, tended mystify short, In effect the than to them the mislead light. jury, give to of incon- to the choose between multiplicity permit instructions, some and some right, sistent disconnected wrong direct, them in a the law few instead before plain, placing fairly instructions, which aid them in and forcible coming decision. intelligent the on the The defendants’ general exception charge question 464; 456, v. N. H. Bixby Dunlap, overruled. damages 164; Plumer, H. Holmes, 163, H. Friel v. 69 N. v. 60 N. Kimball 501. there on the the defendants was malice therefrom, he to com- is entitled and the suffered plaintiff mentally take fair for and this we to be the such suffering; pensation reasonable construction of the reported. charge aside. set Verdict All concurred. moved both the opinion parties foregoing Upon filing for opinion. discussed subsequent
a rehearing points upon Morrill, for Niles the plaintiff. Sargent, Howe,for defendants. Martin in- it was present J. In order sustain Walker, that the defendants brought on the prove cumbent there- him cause without having actions probable original which he assumed This is a burden for, with malice. 5GT H.j which remained with the trial. during Upon cause, hound he was to make it appear probable that more than otherwise defendants not have probable reasonable their actions probable grounds instituting him. That was one the issues in the the most ease, perhaps — —one, character of did not important nominally negative make it tire less of the it any duty by legiti- mate ft was also incumbent on him show that the him had favor; defendants’ suits terminated in his evidence that voluntarily became nonsuit therein paid admitted for costs was Did it any properly purpose. further ? Was also sufficient evidence evidentiary bearing ?
The defendants the court requested that “the charge is, mere failure of these prosecution, brought by does not establish a want of prob- able cause.” The denied the court request, “establish,” used, the word excepted. as here Although somewhat the evident ambiguous, meaning request the mere fact that the defendants became nonsuit does not warrant cause; of a want of the “failure finding prosecu- ” nonsuits; tion can have reference to hut counsel nothing on both assumed in sides have ef- this is natural argument *9 used, have,discussed fect of the of the language or of that admissibility fact as evidence to a authorize sufficiency tin; If, alone, of absence of cause. finding probable standing defendants’ act or nonsuit was not relevant becoming legally sufficient for that the instruction should been have purpose, given. A uniiistrueted use terms unfamiliar with legal a believe that or legal procedure nonsuit dismissal might voluntary of an action a formal and deliberate admission by plain- tiff that never he had a cause of action. supposed probable They fact that alone as might regard leaving decisive question, little for their further of dam- consideration except part Unless action their ages. such on would be legitimate, instruction should been requested given. “ Probable cause is a defined be such of facts state mind of the as would lead caution and prosecutor aman ordinary prudence believe entertain honest strong suspicion Keasor, that the 518, H . Eastman v. person arrested guilty.” v. Prescott, 520 Woodman 65 N. H. 224. The defendants, that required when prove they brought him, “as did not such facts possess knowledge ” a lead man of caution believe prudence ordinary a cause It is they plaintiff. argued . Said el. mere fact that the this burden supported by in their suits. The motion became nonsuit argument their own a warrants the inference of want of' probable that fact alone is that direct evidence of the fact of the nonsuit alone is no But cause. defendants, did on the except they mental state that time. It be said that at may on desire carry litigation does, If it and informed, it might it that fact conclusively. establishes because, as then became nonsuit inferred that they is necessary go think had a -not in and to infer from this further this mental operation, a step suits, a when they brought nearly ference that the defendants did not as before, possessed, information they year had a cause of men believe they reasonable and honestly prudent between the fact and visible connection action. There is no open viz., to withdraw their suits defendants desired proved, viz., that had no fact to be and the .proved, April, rea 1899. A variety July, great cause of action nonsuit, one of to become exist which induce sons may that he has or become convinced be that he has discovered which may This, however, a mere it is but one is but conjecture; no case. action; it cannot reasons for such number of sufficient aof large reason that induces common or ordinary even be said to be the case, it or it may In a to become nonsuit. particular with other Unconnected the true reason. not be cannot be treated as But one conjecture pure conjecture. The probative to reach another conjecture. fact order proved is not issue point logically of the evidence upon bearing involved, to no certain doubtful and plain, leading clear “ at a of fact is conclusion Such a mode gen arriving result. fact or No inference of inadmissible. if not universally, erally, are uncertain. When drawn from premises is reliable law. fact, the is relied upon circumstantial ever and not themselves presumed.” must proved, circumstances 281, 283. Ross, 92 S. States v. U. United “is, a condition that as precedent s. the rule says Best (Ev., 90) *10 circumstantial, the evidence, direct or either the admissibility between principal and visible connection an open law requires ultimate or sub-alternate. facts, be whether they evidentiary connection,— exclude that would mean a necessary does not This — reasonable, latent is and not such as all presumptive or evidence relevancy bearing legitimate or conjectural.” a trial the conduct of and reason applied by is ascertained logic to allow the unreasonable it is illogical by jury. it simple conjecture, based upon from premises conclusions draw of the be claimed favor that can The most is also illegitimate. 569 v. N. IT.] it in this case is requested the instruction to give refusal have no defendants may thought they possible nonsuit, hence, action when became assuming ground mind true, were of the same when they be possible that to is upon conjecture, their suits. This conjecture piling the exercise more than by result by guessing and reaching “ mere and con In a tribunal guesses and logic. judicial reason the law for the cannot be substituted proof legal jectures ; 531, 533 Rail 70 H. Jewell v. Horan N. v. Byrnes, requires.” 397; 394, Desc Dunn, 68 N. H. 84, 95; H. Cutler v. 55 N. way, 291; Co., 285, Electric Railroad, H. Carr v. 69 N. henes v. 625; 308, Gerisch, Ill. 310; Ins. Co. v. H. Globe 70 N. v, 447; 440, McAleer Mitchell, Pa. St. McMurray, v. Douglass 126, 135. 58 Pa. St. the defendants became nonsuit they exercising legal
When a volun which all have before trial. upon plaintiffs Judgment right a, cause; for the suit same nonsuit is no bar subsequent tary defendant merits. evidence nor is it as regarded unaffected so far of the are as parties jus The relative rights is concerned. He is at of the claim plaintiff’s bring tice liberty first; it has suit at after the dismissal of once a second on the trial of the defend been understood that second the never entered the first as evi could use the fact nonsuit ant he had of an no cause dence admission by de action, or that he had no probable ground summoning act into court. The mere nonsuit can becoming fendant its effect than was intended to have and no other evidentiary intended effect is explained by, ordinary depends upon, is It one of the inodes prescribed rules of judicial procedure. action; an and its as evidence terminating legal significance law limited of its use conduct of necessarily “ For this it is held that where several reason pleadings suits. alone; (cid:127)filed, are to tried each was pleaded precisely admissions, or one cannot plea expressed implied, issues.” Buzzell v. other party used as Snell, 480; Barnstead, 38 25 N. H. H. Pittsfield 121, 122. When a files a confession of the defendant plaintiff’s to recover a certain amount of right damages, pleads not, claim, manner of his to the residue is any residue* plea confession, extent, affected the cause though, to any 50 N. H. and indivisible. McIntire v. single Randolph, ; Dow 48 N. H. 75. An admission made 94 Epping, pleading not have the effect as it were made some does same though other If a defendant desires to other for some way purpose. method of admit the plaintiff’s unambiguous *11 570 v. Ms known is
making
purpose
provided
by
rules
procedure;
and if a
intends to concede
that he has no
cause of
a retraxit or some' other definite statement on the record would
result;
but the
produce
mere
of a
entry
nonsuit
voluntary
is
not sufficient evidence of such an intention, because that
is not
for which it
is used under the rules of procedure.
LaRose,
State
ante,
435;
v.
Railroad,
Holmes v.
;
p.
As the mere fact of the with evidence of unconnected *12 571 N. H.] Cohn v. Saidkl. induced the defendants to of their cases dispose reasons which to a of not sufficient want of support finding was in that way, been cause, should have the instruction requested given. probable not cause does fol- of logically reasonably want The probable that premise. low from single “to the of tbe part also that excepted charge The malicious, liable if the suits were upon held liable, if the not be hold even suits wero that should they ground malicious, if of action.” That a had cause this is probable they conceded; this law cases of character is but correct theory that a taken as charge claimed on the part it is this Whether not this contention is is open objection. whole an astute or not which ingenious explanation depends, upon sound a but a technical satisfy lawyer, meaning jury might If attach it. from instructions laymen reasonably twelve might are useful informing the court to serve jury ease, must be such the law of the they given language upon to minds of and definite to the men not correct impressions convey A law. correct state- technically the knowledge versed to the a erroneous jury radically of the law might convey ment exercised in Too care cannot be make the idea. seeking great clear, to the but non- unambiguous practical, charge explicit, minds of jurymen. professional, A this case makes it clear- careful examination charge concluded, if that the defend- that the have reasonably might liable, “ without maliciously they ants their suits regard cause. If of want question probable they brought man, this intending oppress suits maliciously liable,” must contained statement charge, or three two times. Whether there was repeated substantially to, was cause was alluded bringing merely no made define its was expression but attempt explain tbe In one or two this bearing. places charge upon subject legal correct; but impossible is substantially say jury- these statements accepted exclusively governed “ In tbe charge the last court said: these them. substantial cause of hated this parties good, indeed, and for much reason very actions, But the not would not liable.” action,” had “a cause of tbe defendants substantial good, of action. The had a whether they jury may defendants, under tliat not found the instructions having substantial cause their suits good, having brought whole, are liable. Taken as maliciously, apparent to lead liable tbe this erroneous conclusion charge very Cohn or to induce them to return a verdict for the plaintiff principally, if reason, of malice. For wholly, upon ground other, no 19 N. H. verdict cannot be Railroad, sustained. March v. 377; v. 209 Cooper H. Lord Railway, v. Lord, 58 N. H. 11. of the court charge damages presents It error. no based consisted of a upon, principally quota- from, tion 456, 464, 56 N. H. opinion Bixby Dunlap, *13 which been followed and Holmes, Kimball v. approved 164, Plumer, 60 N. H. Friel v. 69 N. H. 500. It nor can not authorize the impose as a punishment; damages said, it be view the the con- plaintiff’s him to drive out of to ruin business and spiracy financially, and of the acts done out that pur- carrying case did not warrant the pose, instruction That given. must remorse, have suffered some degree anxiety, and solicitude of the defendants’ malicious consequence prose- cutions, would inference, natural constitute element in the assessment his damages.
The defendants’ final contention evidence shows con- that the defendants had cause for clusively prosecuting should be verdict ordered their plaintiff, consequently true, favor. If the defendants’ as testimony regarded result follow. But of their might witnesses was a credibility in the point contested trial. Whether Leon Saidel’s testimony to what Clark told him relation to the fraud plaintiff’s alleged true, and whether disclosed his fully honestly counsel all within the facts his bearing upon knowledge fraud, he was their advice plaintiff’s governed by matter, of fact questions credibility depending witness, of the was not contra- although testimony directly trial, dicted. As Clark was not witness at perceived how the But could contradict Saidel by independent testimony. be,
however the fact that he did not contradict Saidel’s admission on cannot treated as conclusive testimony that it was true. As the of the defendants’ questions intent, or information of their when knowledge they evi- actions depend true, dence not admitted within the to be their determination was n specialprovince jury.
Motion denied. rehearing All concurred.