3 Blackf. 216 | Ind. | 1833
Dicken sued Conduit in an action fora malicious .prosecution. The declaration states that Conduit, on the 22d of May, 1832, went before a justice of the peace, and falsely, maliciously, and without any reasonable or probable cause whatever, charged Dicken with having committed perjury, &c. Conduit pleaded two pleas, — 1st, the general issue, on which issue was joined; 2dly, that Dicken had, on the 18th of May, 1832, on a trial before a certain justice of the peace, &c. sworn false, &c.; that Conduit had therefore made the charge, &c. Replication of de injuria sua propria to the second plea, and issue.
On the trial, Conduit filed two bills of exception. The first bill shows that Dickon offered in evidence the original affidavit and warrant, by virtue of which he was arrested, &c. These were objected to, but admitted by the Court. The second bill shows, that after Conduit had introduced as evidence, the record of the cause'in which he alleged the perjury to have been committed, and in which he had recovered, Dickon offered to read > - record of the same cause, on appeal to the Circuit Court, in - /inch he had succeeded. The record of the cause on appeal, tried after the commencement of the suit for malicious proser cution, was objected to, but the objection was overruled.
Verdict and judgment for the plaintiff below,
There are several errors assigned.
The first is, that the affidavit and warrant were not admis-. sible as evidence. The bill of exceptions states, that it was the original affidavit and warrant which were admitted in evidence. That they were the originals, instead of copies, was surely no. objection. The plaintiff in error contends that they' ought to have been proved. He forgets, however, thát his bill of exceptions admits them to be the original papers.
The second error assigned is, that the record of the action on appeal should not have been admitted. The plaintiff in error had himself given in evidence the record of the same cause before the justice, to show that he had recovered. It followed, of c'ourse, that his opponent might show that the final result of the cause, on appeal, had heen otherwise,
The third objection is, that the declaration does.not aver that f. harge of perjury had been made by the defendant under
. There was no occasion to make such an averment. The declaration is in the usual form. It was necessary to prove that an affidavit had been made, but it was not necessary to aver it in the declaration.
The last ground relied on is, that the record does not show-when the perjury charged was committed. That the declaration does not show this, can be no objection to the judgment. If proof of it was necessary, there is nothing to show but that it was proved. Besides, the time alluded to is .stated in the special plea. .
The judgment is affirmed-with costs.